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RICHARD LAPOINTE v. COMMISSIONER

OF CORRECTION

(SC 19079)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.

Argued September 17, 2013—officially released March 31, 2015*

Timothy J. Sugrue, assistant state’s attorney, with

whom, on the brief, were Kevin T. Kane, chief state’s

attorney, Jo Anne Sulik, supervisory assistant state’s

attorney, and Michael E. O’Hare, former senior assistant state’s attorney, for the appellant (respondent).

Paul Casteleiro, pro hac vice, with whom was W.

James Cousins, for the appellee (petitioner).
Opinion

PALMER, J. This certified appeal by the respondent,

the Commissioner of Correction, requires us to decide

whether the Appellate Court correctly concluded, contrary to the determination of the habeas court, that the

petitioner, Richard Lapointe, is entitled to a new trial

on the charges underlying his 1992 conviction of capital

felony and other offenses because prior habeas counsel

(first habeas counsel) rendered ineffective assistance

in failing to demonstrate that the state withheld certain

exculpatory evidence prior to trial in violation of Brady

v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d

215 (1963), and its progeny, the disclosure of which

would have supported an alibi defense. We agree with

the petitioner both that he was deprived of a fair trial

because his rights under Brady were violated and that

his first habeas counsel’s representation was constitutionally deficient in that counsel failed to establish that

violation. We therefore affirm the judgment of the

Appellate Court.

The respondent’s appeal arises out of events that

have their origin in the early evening hours of Sunday,

March 8, 1987, when the victim, eighty-eight year old

Bernice Martin, was raped, bound and murdered in her

Manchester apartment, which her killer thereafter set

ablaze in an apparent effort to destroy all evidence of

the crime. The case remained unsolved until early 1989,

when police focused their suspicions on the petitioner,

the then forty-two year old mentally impaired husband

of the victim’s granddaughter, Karen Martin (Martin),

with whom the petitioner resided along with their eight

year old son. Untilthen,the petitioner was not a suspect:

he had no criminal record or history of violence of any

kind, and he seemed physically, mentally and temperamentally incapable of the brutal crime. Nevertheless, on

July 4, 1989, over the course of a nine hour stationhouse

interrogation by the Manchester police that lasted until

the early morning hours of July 5, the petitioner gave

three written statements in which he purported to take

responsibility for the victim’s murder. The petitioner

repeatedly told the police, however, that he had no

recollection of killing the victim and that he was confessing only because they wanted him to do so.

On the basis of these statements, the police obtained

a warrant for the petitioner’s arrest, and he ultimately

was charged with capital felony and arson murder,

among other offenses. Following a jury trial, he was

convicted as charged1 and sentenced to life imprisonment without the possibility of release.2 After this court

affirmed his conviction; State v. Lapointe, 237 Conn.

694, 739, 678 A.2d 942, cert. denied, 519 U.S. 994, 117

S. Ct. 484, 136 L. Ed. 2d 378 (1996); the petitioner sought

a writ of habeas corpus, claiming, inter alia, that his

due process rights were violated because the state had

failed to disclose a note, authored by Detective Michael
Ludlow of the Manchester Police Department (Ludlow

note), containing details concerning the length of time

that the fire burned inside the victim’s apartment prior

to being discovered. The petitioner claimed that the

note was both exculpatory and material under Brady3

because it purported to identify the time frame within

which the fire was set, and Martin would testify that

the petitioner was home, with her and their son, during

that entire period, thereby providing the petitioner with

a complete alibi. First habeas counsel, however, failed

to pursue the claim, and, consequently, the first habeas

court, Freed, J., rejected that claim as abandoned, as

well as the petitioner’s other claims on the merits. On

appeal, the Appellate Court affirmed the judgment of

the first habeas court. Lapointe v. Commissioner of

Correction, 67 Conn. App. 674, 681, 789 A.2d 491, cert.

denied, 259 Conn. 932, 793 A.2d 1084 (2002).

The petitioner subsequently filed the habeas petition

that is the subject of this appeal, alleging, inter alia,

that the state’s failure to disclose the Ludlow note

deprived him of due process of law and that his first

habeas counsel had rendered ineffective assistance

under Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984),4 by failing to pursue

and prove that claim. The second habeas court, Fuger,

J., dismissed the claim, concluding, inter alia, that the

petitioner had not established a prima facie basis for

the exculpatory nature of the Ludlow note because,

despite its existence, he could not account for his

whereabouts forthe entire window oftime within which

the victim was murdered. The petitioner appealed to

the Appellate Court, which reversed in part the second

habeas court’s judgment and remanded the case for

further proceedings. Lapointe v. Commissioner of Correction, 113 Conn. App. 378, 404, 966 A.2d 780 (2009).

The Appellate Court’s decision was predicated on its

determination that the Ludlow note, when viewed in

the light most favorable to the petitioner and considered

together with certain statements from Martin as to when

the petitioner was home with her, was exculpatory

because it tended to support a finding that he could

not have committed the crime in the requisite time

frame. See id., 392.

At the proceeding following the Appellate Court’s

remand of the case to the habeas court, the sole issue

with respect to the Ludlow note was whether it was

material. In support of his claim that the note was material, the petitioner presented expert testimony concerning the length of time the fire burned in the victim’s

apartment. Based on the burn time estimates of the

petitioner’s two experts, which were consistent with

the notation that had been made in the Ludlow note,

the fire was set in a relatively narrow window of time.

The petitioner also presented evidence establishing

that, if the state had disclosed the Ludlow note as

required, his trial counsel would have called Martin as
a witness, and Martin would have testified that the

petitioner was home with her during the time frame

within which, according to the petitioner’s burn time

experts, the fire was set. The respondent also presented

expert testimony concerning the likely burn time of the

fire. Under the far longer burn time estimate proffered

by the respondent’s expert, the petitioner could not

establish, even with Martin’s testimony, that he was

home during that entire period. At the conclusion of

the trial, the third habeas court, Nazzaro, J., rejected

the petitioner’s claim that his first habeas counsel was

ineffective for failing to pursue a Brady claim on the

basis of the state’s nondisclosure of the Ludlow note.

In particular, the third habeas court found that the testimony of the respondent’s expert was far more persuasive than the testimony of the petitioner’s experts and

that it was not reasonably probable that, if the jury at

the petitioner’s criminal trial had heard the testimony

of the petitioner’s experts, it would have credited that

testimony and reached a different result.

On appeal to the Appellate Court from the judgment

of the third habeas court, the petitioner argued, inter

alia, that, contrary to the finding of the third habeas

court, he is entitled to a new criminal trial at which the

jury would decide how much weight to assign to the

testimony of the petitioner’s experts. The Appellate

Court agreed, concluding that the determination of

which expert or experts were most persuasive was an

issue to be decided by the jury at a new trial. See

Lapointe v. Commissioner of Correction, 138 Conn.

App. 454, 476–77 and n.17, 53 A.3d 257 (2012). Accordingly, the Appellate Courtreversed in part5

the judgment

of the third habeas court and remanded the case with

direction to grant the petition for a writ of habeas corpus and for a new trial. Id., 480.

We then granted the respondent’s petition for certification to appeal, limited to the following issue: ‘‘Did

the Appellate Court properly determine that the [petitioner’s] first habeas counsel was ineffective for failing

to pursue a claim that the state had suppressed evidence

in violation of Brady v. Maryland, [supra, 373 U.S. 83]?’’

Lapointe v. Commissioner of Correction, 307 Conn.

940, 941, 56 A.3d 948 (2012). We answer the certified

question in the affirmative because the testimony of

the petitioner’s experts was more than sufficient to call

into question the reliability of the petitioner’s conviction. Indeed, even if that expert testimony only tended

to support the petitioner’s claim that he could not have

murdered the victim, in view of the tenuous nature of

the state’s case against the petitioner—based as it was

on his suspect admissions—the state’s Brady violation

would warrant a new trial because, as the United States

Supreme Court has recognized, exculpatory evidence

of even ‘‘minor importance’’ may well be ‘‘sufficient to

create a reasonable doubt’’ when, as in the present case,

‘‘the [guilty] verdict is already of questionable validity
. . . .’’ United States v. Agurs, 427 U.S. 97, 113, 96 S.

Ct. 2392, 49 L. Ed. 2d 342 (1976). Accordingly, we affirm

the judgment of the Appellate Court reversing in part

the judgment of the third habeas court and ordering a

new trial.

I

FACTS AND PROCEDURAL HISTORY

Our resolution of the issue presented by this appeal

requires an extended discussion of the long and vexing

history of the petitioner’s case.6 At all times relevant

to this appeal, the petitioner, his wife, Martin, and their

son resided in the town of Manchester, within walking

distance of the apartment of the victim, whom they

visited every Sunday. On Sunday, March 8, 1987, the

family followed their usual routine, attending church

in the morning and then stopping for breakfast at My

Brother’s Place, a nearby restaurant where the petitioner was employed. When the restaurant closed at

2 p.m., they walked across the street to the victim’s

apartment, where they stayed for approximately two

hours, watching television with the victim. At about 4

p.m., the petitioner and Martin, neither of whom had a

driver’s license, and their son took the ten minute walk

home. After they arrived home, Martin, who has cerebral palsy and is slightly paralyzed, prepared dinner,

and the petitioner, who has certain physical and mental

impairments as the result of Dandy-Walker syndrome,7

took the family dog out for a walk. The petitioner was

gone for around twenty minutes. Upon his return, at

approximately 5 or 5:15 p.m., the family sat down for

dinner.

At or about 5:45 p.m., the victim’s daughter, Nathalie

Howard, and her husband drove past the victim’s apartment and saw the victim outside emptying her trash.

At the time, the victim appeared fine, and the couple

continued on their way. At approximately 7:55 p.m.,

Howard called the victim to check on her, as she did

every evening, but the victim did not answer her telephone. Howard tried calling again at 8:05 p.m. When

the victim still did not answer, Howard called her niece,

Martin, to inquire whether Martin’s father, who resided

in New York, had come to visit the victim and had taken

her out to dinner. When Martin told Howard that her

father was not in town that day, Howard asked if the

petitioner would walk over to the victim’s apartment

to make sure that nothing was wrong. Howard also

requested that the petitioner call her as soon as he

got to the victim’s apartment to let Howard know that

everything was alright.

According to Howard, the petitioner called her right

back from the home of Jeannette King, the victim’s

neighbor. He told Howard that the doors to the victim’s

apartment were locked and that the victim must be

sleeping because there were no lights on inside the
apartment. Howard told the petitioner that the victim

never went to bed at that hour and that she was heading

right over to the victim’s apartment. The petitioner also

called Martin, who told him to go back to the victim’s

apartment immediately and to try to get inside because

the victim might have fallen and injured herself. A few

minutes later, the petitioner returned, out of breath, to

King’s apartment and told her that there was smoke

coming from the victim’s apartment. The petitioner

dialed 911 from King’s apartment at 8:27 p.m.

The first firefighter on the scene, Michael Tomkunas,

who was off duty and arrived within moments of the

911 call, saw the petitioner standing in front of the

building, motioning him in the direction of the victim’s

apartment. Tomkunas could see smoke coming from

the apartment, and the front door was hot to the touch.

Tomkunas immediately kicked in the front door and

tried to enter the apartment, but the smoke and heat

were too intense, and he was forced out. By then, other

firefighters were arriving on the scene. One of them,

Douglas Boland, ran to the back of the building and

opened a set of sliding glass doors. The cross-ventilation

dissipated enough of the smoke and heat to allow the

firefighters to enter. When they did, they discovered

the victim lying on the living room floor, six to eight

feet from the burning couch. She was naked except for

two pieces of fabric, one of which was tied so tightly

around her neck that Tomkunas had trouble removing

it; the other piece bound her hands and midsection.

The firefighters carried the victim to the front lawn and

performed cardiopulmonary resuscitation until paramedics arrived. Howard arrived just as rescue personnel were carrying her mother from the building. The

drive from her home had taken approximately ten

minutes. The victim subsequently was transported to

Manchester Memorial Hospital, where she was pronounced dead.

The associate medical examiner, Arkady Katsnelson,

performed an autopsy on the victim and determined

that her cause of death was a combination of asphyxia

by strangulation and smoke inhalation. He concluded

that the victim was not manually strangled but was

asphyxiated by pressure to the right side of her neck

from a blunt object. The victim also suffered a three

inch stab wound to her abdomen, ten less severe stab

wounds to her back, extensive hemorrhaging and contusions and lacerations to the vaginal area, as well as first

and second degree burns to various parts of her body.

Katsnelson opined that the contusions and lacerations

to the vaginal area were caused by a blunt object rather

than by sexual intercourse.

The police recovered several items of potential evidentiary value from the victim’s apartment, including

a pair of men’s gloves containing strands of the victim’s

hair and a semen stain from the bedspread belonging
to a person with type A blood who also was a secretor.8

The petitioner is a secretor with type A blood, as is

approximately one third of the male population.9 The

police also recovered a pubic hair from the victim’s

clothing, but DNA tests were not then available.10 Buttons from the victim’s blouse were found strewn about

the bedroom floor, indicating that the perpetrator had

forcibly removed the victim’s clothing. The police also

found a pool of the victim’s blood on top of the bed,

indicating that she was stabbed in that location.

The police investigation into the victim’s homicide

remained open for more than two years. In March, 1989,

the case was reassigned to Detective Paul Lombardo

of the Manchester Police Department.11 At that time,

Lombardo decided to reinterview individuals who previously had been questioned by the police. On June 8,

1989, Lombardo interviewed the petitioner and took a

saliva sample from him.

On July 4, 1989, Lombardo asked the petitioner to

come to the police station for questioning. By that time,

Lombardo had become convinced of the petitioner’s

guilt because of his blood type, his peculiar nature and

mannerisms, and his repeated questions to the police

about whether he was a suspect in the victim’s murder.

According to Joseph J. Brooks, Lombardo’s commanding officer, the purpose of the interview was to elicit

a confession from the petitioner. When the petitioner

arrived at the police station, Lombardo informed him

that there was incontrovertible evidence of his guilt.

Although the petitioner initially denied any involvement

in the victim’s murder, after Lombardo told him that a

person could commit a crime and not remember doing

so, the petitioner signed two statements in which he

acknowledged his involvement in the murder. In the

first, one sentence statement, the petitioner purported

to acceptresponsibility forthe victim’s death, but stated

only that ‘‘it was an accident, my mind went blank.’’ In

the second statement, the petitioner stated that he had

no memory of killing the victim but that, if the evidence

showed that he was there and that he killed her, then

he must be guilty. Because the first two statements

were devoid of any detail corroborating the petitioner’s

equivocal admission that he had killed the victim, Lombardo asked another Manchester police officerinvolved

in the investigation, Detective Michael Morrissey, to

take over the interrogation and to try to obtain more

specific information from the petitioner. Several hours

later, under questioning by Morrissey, the petitioner

signed a third statement that was largely inconsistent

with the crime scene evidence12 but that also contained

three details about the crime that, presumably, would

have been known only to the police and the killer.13

After signing the third statement, the petitioner was

told to go home. Before leaving the station at 1:30 a.m.

on July 5, however, the petitioner spoke to Brooks

and again expressed uncertainty about his role in the
victim’s murder. Brooks asked him why he had he

signed the three statements confessing to the murder.

The petitioner responded that he simply had repeated

what the officers had told him to say.

At the petitioner’s criminal trial, the petitioner’s counsel presented evidence to demonstrate that the petitioner was physically, mentally and emotionally incapable of committing, much less concealing, such a brutal and cold-blooded murder, as evidenced by the testimony of numerous psychologists and other witnesses

who had known the petitioner at various stages in his

life, including childhood friends, employers, fellow

parishioners, and other members of the community.

According to these witnesses, the petitioner’s cognitive

and motor skills are impaired, apparently the result of

Dandy-Walker syndrome, and, as a consequence, he is

slow-witted, easily confused, child-like and gullible—

his mother-in-law described him as having the mentality

of an eight year old—as well as physically awkward

and uncoordinated. In addition, the petitioner was

extremely close to the victim and her family, and he

had no conceivable reason or motive to harm her, let

alone to sexually assault and kill her. With respect to

the petitioner’s admissions, counsel argued that they

were the product of a highly manipulative interrogation

of an extremely vulnerable and impaired man, who had

spent his entire life accommodating and agreeing with

others in an effort to gain favor and to avoid conflict.

Focusing principally on the petitioner’s third incriminating statement, the state argued that the statement

was freely given, and that it was powerful evidence of

guilt because it contained information about the murder

that only the killer would know. The state also argued

that the petitioner was not nearly as compromised intellectually as defense witnesses had made him out to be

because he had an intelligence quotient (IQ) of 92,

which, the state asserted, was ‘‘nowhere close to being

[even] slightly retarded.’’ The state also emphasized that

the petitioner’s blood type and secretor status were

consistent with the seminal stain on the victim’s bedspread. Finally, the state referred to certain conduct

by the petitioner in the days and weeks following the

murder that, in the state’s view, suggested that the petitioner was the murderer: on several occasions, the petitioner had asked the police whether he was a suspect

in the crime; he had told a neighbor that the victim was

sexually assaulted before that information was known

publically; and, on the night of the murder, he had gone

to King’s front door to ask to use her telephone, even

though the back door was closer to the victim’s apartment.14 On June 30, 1992, a jury found the petitioner

guilty of all charges, and, after a penalty phase hearing,

the trial court sentenced him to a term of life imprisonment without the possibility of release.

On direct appeal to this court, the petitioner claimed,
inter alia, that the trial court improperly had denied his

motion to suppress the oral and written statements that

he had given to the police on July 4 and 5, 1989,15 and

improperly concluded that the state constitution did

notrequire the police to record his confession electronically. See State v. Lapointe, surpa, 237 Conn. 696. We

rejected those claims and affirmed the petitioner’s conviction.16 Id., 703, 735, 739. Thereafter, on May 30, 1997,

the petitioner filed his first writ of habeas corpus, alleging, inter alia, prosecutorial impropriety predicated on

the state’s failure to disclose certain exculpatory evidence, including the Ludlow note. At the first habeas

trial, however, first habeas counsel presented no evidence to support a claim that the state had suppressed

the Ludlow note, and, therefore, the first habeas court

deemed the claim abandoned. The first habeas court

rejected the petitioner’s other claims,17 and the petitioner appealed to the Appellate Court, which affirmed

the judgment of the first habeas court. Lapointe v. Commissioner of Correction, supra, 67 Conn. App. 681.

On August 2, 2002, the petitioner filed a second

habeas petition, alleging, inter alia, that his first habeas

counsel rendered ineffective assistance by failing to

pursue a claim that the state improperly had suppressed

the Ludlow note. The following relevant facts relating

to the Ludlow note are set forth in the decision of

the Appellate Court in Lapointe v. Commissioner of

Correction, supra, 138 Conn. App. 454. ‘‘At the time of

the victim’s homicide, Ludlow was . . . assigned as the

evidence officer for the crime scene. He subsequently

assumed the position of case officer, which meant that

he was responsible for the entire criminal investigation.

A few days after the homicide, Ludlow had conversations with two state fire marshals who were assisting

with the investigation. Ludlow took notes and wrote

‘CSP,’ which stood for Connecticut State Police, and

‘Steve Igoe’ and ‘Joe Roy,’ the names of the state fire

marshals. Underneath those notations [in] the Ludlow

note, the words ‘30–40 mins. Poss.’ were written. The

numbers ‘30’ and ‘40’ were underscored twice. Ludlow

testified that the notation ‘[P]oss.’ meant ‘possible’ and

that the times represented the minimum amount of time

that the fire could have been burning before the first

responding firefighters arrived at the victim’s apartment. At the time of the second habeas trial, Ludlow

stated that he could not remember who gave him the

burn time information. He admitted, however, that he

was not an expert on fires and that he would not have

made that estimate on his own. He testified that he

would have asked one of the experts for the burn time

if he was trying to determine a window of time within

which the fire could have been started. Ludlow also

acknowledged that, at the time of the first habeas proceeding, he testified that he had obtained the information as to a possible burn time from either Igoe or Roy.

‘‘The Ludlow note was first disclosed to [the petition-
er’s] counsel in 1999, after the petition for [a writ of]

habeas corpus had been filed in the first habeas action.

[The petitioner’s trial counsel, Patrick] Culligan and

[Christopher] Cosgrove both testified that they had not

seen the Ludlow note prior to the petitioner’s criminal

trial in 1992. . . . [A]fter receiving the Ludlow note

and other materials, [first habeas counsel] amended the

petition to allege the state’s failure to disclose or to

produce the Ludlow note as Brady material, as required

by the [federal and state] constitutions . . . . He did

not, however, pursue that issue during the first habeas

trial. The first habeas court, in its memorandum of

decision, did not address the claim regarding the Ludlow note because it deemed that claim to [be] abandoned.

‘‘[The petitioner alleged in a second habeas proceeding that his first habeas counsel’s] failure to pursue the

claim that the state suppressed the Ludlow note was

. . . ineffective assistance of counsel . . . . During

the second habeas trial, [the petitioner’s first habeas

counsel] testified that he had not pursued that claim

because he did not believe [that] the notation as to burn

time in the Ludlow note [was] exculpatory. Culligan

and Cosgrove, in their testimony before the second

habeas court, opined that the Ludlow note was exculpatory and that the information could have been used by

[them] at the criminal trial to buttress the petitioner’s

alibi defense. Culligan and Cosgrove further testified

that if the Ludlow note had been disclosed to [them]

prior to the [petitioner’s criminal] trial, their strategy

would have changed.

‘‘[Martin] was not called as a witness in the petitioner’s criminal trial. Culligan stated that Martin and the

petitioner were divorced by that time and that the working relationship between her and the defense was no

longer a good one. Although [Culligan] discovered prior

to trial that [Detective] Morrissey had interviewed [Martin] on July 4, 1989, and that she had expressed her

support for the petitioner at that time, and although

[Culligan] knew that [Martin] had testified at the suppression hearing that the only time the petitioner was

out of her sight on the night of the homicide was when

she bathed their son between 6:15 [or 6:30] p.m. and 7

p.m., Culligan decided not to compel her testimony.

He testified that he was concerned about her attitude

toward the petitioner. Further, he was unaware of the

existence of the Ludlow note and the importance of

the start time of the fire to support the petitioner’s alibi

defense. Culligan testified that, if he had known that

Igoe, the state’s fire expert, gave a burn time of thirty

to forty minutes, he would have called [Martin] as a

witness because her testimony would have established

that the petitioner was home when the fire was set. He

also [testified] that [if] he . . . had . . . known of the

information in the Ludlow note [he would have been

prompted to hire an expert to testify about the fire’s
burn time for the purpose of demonstrating that the

petitioner could not have started the fire because he

was home when it was set].’’18 (Footnotes omitted.)

Id., 468–71.

At the close of the petitioner’s evidence at the second

habeas trial, the respondent moved to dismiss the petition on the ground that the petitioner had failed to make

out a prima facie case with respect to any of his claims.

On August 2, 2007, the second habeas court granted

the motion, concluding, with respect to the petitioner’s

claim predicated on the nondisclosure of the Ludlow

note, that the note was not exculpatory. The court reasoned that, although the note arguably supported a finding that the minimum burn time was thirty to forty

minutes—a period of time for which the petitioner

could account for his whereabouts through Martin’s

testimony—the note said nothing about the maximum

possible burn time, and the petitioner could not establish his whereabouts for a longer time period.

The petitioner appealed from the judgment of the

second habeas court to the Appellate Court, which

reversed in part the second habeas court’s judgment as

it related to the Ludlow note and remanded the case

for further proceedings. Lapointe v. Commissioner of

Correction, supra, 113 Conn. App. 404. In reversing

that portion of the second habeas court’s judgment

pertaining to the Ludlow note, the Appellate Court

observed that ‘‘the record reveals . . . that the victim

was last seen outside of her apartment by Howard at

about 5:45 p.m. The petitioner’s former wife, [Martin],

testified at a suppression hearing that she prepared

dinner at the petitioner’s home and that they ate dinner

at about 5:15 p.m. or 5:30 p.m. Prior to sitting down for

dinner, the petitioner . . . walked the family dog for

approximately twenty minutes. Therefore, according to

hertestimony, the petitioner had returned from his walk

before the time that the victim was last seen outside

of her apartment. . . . Martin . . . further testified

that [the petitioner] did not leave their house again

until she received a telephone call from Howard, who

requested that the petitioner walk over to the victim’s

house to check on [the victim]. According to Howard,

this telephone call was placed a little after 8 p.m.’’ Id.,

391. The Appellate Court further noted that, although

the state had adduced testimony from Martin acknowledging that the petitioner was out of her sight from

approximately 6:15 or 6:30 p.m. until 7 p.m., when she

was upstairs bathing their son, Martin also testified that,

‘‘while she was upstairs, it was possible to hear someone

downstairs’’; id.; and, in addition, that, from 7 p.m. until

the time the petitioner left to check on the victim, she

and the petitioner were watching television with their

son. See id., 391–92.

Viewing this evidence in the light most favorable to

the petitioner,19 the Appellate Court concluded that ‘‘the
thirty to forty minute minimum burn time, if credited

as an accurate estimation, establishes that the fire was

set at or before 7:50 p.m. The petitioner submitted evidence that, if credited, can account for his whereabouts,

albeit tenuously, for the full window of time encompassing the last time the victim was seen alive outside

her apartment to the time her body was discovered.

Evidence that tends to prove his temporal inability to

have committed the crime satisfies the definition of

exculpatory and, therefore, is sufficient to establish the

first prima facie element of a Brady claim.’’20 Id., 392.

On remand, the case was assigned to the third habeas

court, Nazzaro, J.,

21 and the case proceeded to trial.

At trial, the petitioner sought to demonstrate the materiality of the expert burn time testimony that the petitioner’s trial counsel, Culligan and Cosgrove, would have

presented, along with the testimony of Martin, to establish an alibi defense, if the state had timely disclosed

the Ludlow note. In support of this claim, the petitioner

presented the testimony of two fire experts, Gerard

Kelder, Jr., and John DeHaan;22 the respondent presented expert fire testimony from Robert Corry for the

purpose of rebutting the testimony of DeHaan and

Kelder. All three experts had been provided with the

same materials to review in connection with theirinvestigations, including photographs of the damage to the

victim’s apartment caused by the fire, blueprints of the

victim’s apartment, the trial testimony of firefighters

who responded to the fire, the state fire marshal’s report

on the fire, a video-recorded narration depicting the

aftermath of the fire, and the other experts’ reports on

the fire. All three experts were highly experienced fire

investigators. A review of theirtestimony reveals, moreover, that they all agreed that the fire began on the

living room couch, that it burned intensely for a short

period of time, and that it was quickly extinguished or

reduced to a smoldering fire due to decreasing levels

of oxygen in the victim’s small, relatively airtight apartment. The principal distinction between the testimony

of DeHaan and Kelder, on the one hand, and Corry, on

the other, concerned the fire’s maximum burn time.

Primarily on the basis of the smoke and fire damage

to the apartment, Kelder concluded that the fire burned

for approximately forty-five minutes to one hour. Under

this estimate, the fire was set no earlier than 7:30 p.m.

Because Martin could account for the petitioner’s

whereabouts from at least 7 p.m. until he left his house

to check on the victim, Kelder’s testimony, together

with Martin’s testimony, established that the petitioner

was not at the victim’s home when she was sexually

assaulted and killed.

DeHaan’s testimony also supported the petitioner’s

alibi. In his view, in light of the smoke and heat conditions that Tomkunas had encountered when he arrived

on the scene, the fire could have been set as late as 8
p.m. or 8:05 p.m. He further concluded, however, on

the basis of the damage to the apartment and the dynamics of the fire, that it was set no earlier than 7:30 p.m.

Like Kelder’s estimate, DeHaan’s burn time estimate

was favorable to the petitioner because Martin could

account for the petitioner’s whereabouts from 7:30 p.m.

until 8:05 p.m.

Corry thereaftertestified that the fire could have been

set anytime from 5:45 p.m., when the victim was last

seen alive, until she failed to answer her telephone at

around 8 p.m. Under this estimate of the fire’s possible

burn time, Martin did not provide the petitioner with a

complete alibi because she could not positively account

for the petitioner’s whereabouts from 6:15 or 6:30 p.m.

until 7 p.m.—when she was upstairs getting her son

ready for bed—a time period within which, according

to Corry, the fire could have been set.

On direct examination, Corry also was asked whether

he had been present in the courtroom for DeHaan’s

testimony, two months earlier, and, if so, whether he

agreed with DeHaan’s conclusions regarding the fire.

Corry responded that he had been present for DeHaan’s

testimony and that he disagreed with several of

DeHaan’s findings. In particular, Corry characterized

DeHaan as having testified that the fire was a ‘‘high

energy’’ fire. Corry then explained that, if the fire actually had been a high energy fire, there would have been

more damage to the apartment. Specifically, Corry

stated that a high energy fire ‘‘would have destroyed

the wall behind [the couch], it would have destroyed

the ceiling over it, and it would have probably brought

this room to flash over.’’ When asked what may have

caused DeHaan to overestimate the fire’s energy level,

Corry opined that DeHaan likely did not consider the

probability that there was some kind of object, possibly

a blanket, on the couch, which is where the fire began,

and that the blanket or other object had interfered with

and retarded the spread and intensity of the fire. Corry

also characterized DeHaan as having testified that the

apartment was 400 degrees23 at floorlevel when Tomkunas and the other firefighters entered the apartment.24

Corry disagreed with this testimony, as well, explaining

that, if the temperature had been 400 degrees, as

DeHaan stated, all of the firefighters would have been

burned. According to Corry, the fact that they were not

burned indicated that the entry level temperature was

considerably lower than DeHaan had believed, which,

in turn, indicated that the fire must have been started

earlier than DeHaan had indicated because, by the time

the firefighters entered the apartment, it had cooled to

the point that it was safe for them to do so.

Following the trial, the third habeas court issued a

memorandum of decision in which it rejected the petitioner’s claim that the petitioner’s first habeas counsel

provided ineffective assistance by failing to pursue, as
a claim in the first habeas proceeding, the state’s suppression of the Ludlow note. For purposes of its analysis, the third habeas court treated the Ludlow note as

‘‘potentially exculpatory’’ and assumed that the state

had inadvertently failed to disclose the note.25 The third

habeas court concluded, however, that the note did not

support the petitioner’s alibi defense and, therefore,

that the note was not material. In reaching its determination, the third habeas court concluded that Corry’s

burn time estimate, which did not support the petitioner’s alibi defense, was more persuasive than the estimates that DeHaan and Kelder had provided. In support

of this finding, the third habeas court made several

subordinate findings. With respect to DeHaan, the third

habeas court found that Corry had convincingly refuted

DeHaan’s testimony that (1) the fire was a high energy

fire, (2) the fire’s ‘‘peak temperature’’ reached 400

degrees,26 and (3) the temperature inside the apartment

was 400 degrees when firefighters entered.

With respect to the latter finding, the third habeas

court stated: ‘‘The fact that Tomkunas was not burned

contradicts any opinion that the temperature was 400

degrees. At 400 degrees, Corry cogently explained, one

would expect Tomkunas to suffer injury to the back of

his neck and his hands at a minimum. In addition, the

photographs of the fire damage, or lack thereof, [to]

materials in the apartment . . . do not support . . .

DeHaan’s testimony that temperatures reached 400

degrees.’’ The third habeas court further noted that

Corry had ‘‘also criticized the validity of . . . DeHaan’s

opinions regarding temperatures as not taking into

account the material in the room [that] helped to slow

the fire’s burning, such as a blanket and poly foam

cushions on the couch, [which was] thought to be one

of three . . . points of origin [of the fire].’’ Finally, the

third habeas court found that Corry also had convincingly refuted Kelder’s testimony that (1) the fire was a

high energy fire, and (2) the fire’s peak temperature

reached 1800 degrees at ceiling level.27

In light of these findings, the third habeas court

stated: ‘‘Considerable and extensive testimony by arson

experts/investigators was presented by both the petitioner and the respondent in their efforts to determine

the burn time.’’ This ‘‘testimony amount[ed] to a contest

among experts . . . . [Nevertheless] [t]he court, as the

finder of fact in this proceeding, assigns far more credit

or weight to the testimony of . . . Corry . . . than

[that of] . . . Kelder or . . . DeHaan regarding estimation of the burn time.’’ The third habeas court also

observed that ‘‘[w]hat is clear from all the evidence in

the record, the original trial testimony, crime scene

photographs, reports, and the expert testimony presented to [the] court on the fire, is that the precise time

the fire was set cannot be determined. At best, a range

is established that includes that time period of [6:15 to

7 p.m.] . . . when . . . Martin cannot account for the
petitioner’s whereabouts, and [this] does not provide

an alibi for him.’’ With respect to this point, the court

further explained that, because Martin was upstairs giving her son a bath from 6:15 to 7 p.m., she could not have

known whetherthe petitioner was at home, downstairs,

during that time frame, and, consequently, her testimony, standing alone, did not provide ‘‘the petitioner

with anything that remotely amounts to an alibi’’ for

that forty-five minute period.

The third habeas court concluded that, ‘‘[g]iven all

of the foregoing, the court simply cannot conclude that

the nondisclosure of the Ludlow note, assuming it is

potentially exculpatory and was inadvertently not disclosed by the state, supported the petitioner’s ‘alibi’

defense. The inability to precisely determine the start

time of the fire, coupled with . . . Martin’s testimony

that she [could not] account for the petitioner’s whereabouts from [6:15 to 7] p.m., leads [the] court to conclude that the petitioner has failed to [satisfy] both

the third prong of Brady28 and the second Strickland

prong.29 That is, the petitioner has failed to show how

the Ludlow note and the ‘30–40 min [P]oss’ reference,

if disclosed to [the petitioner’s trial] counsel,reasonably

would have led the jury to conclude [that] there was

reasonable doubt in light of all the evidence presented

to the jury.30

‘‘Accordingly . . . the court concludes that the petitioner has failed to show that [his first habeas counsel]

rendered ineffective assistance of counsel . . . . The

court is unable to conclude that [first habeas counsel’s]

failure to have an arson/fire expert testify in the first

habeas [proceeding] would have resulted in anything

different [from the present] habeas [case]: a prototypical battle of the experts resulting in diverging opinions.

. . . [T]he court finds more persuasive the testimony

presented by the [respondent’s expert, Corry], rather

than either of the petitioner’s two experts, [Kelder] and

. . . DeHaan.’’ (Footnote added.)

The petitioner appealed from the judgment of the

third habeas court to the Appellate Court, claiming,

inter alia, that the third habeas court incorrectly concluded that the petitioner’s evidence regarding the fire’s

burn time was not material and, consequently, that the

petitioner’s first habeas counsel did not render ineffective assistance in failing to pursue the claim that the

state’s suppression of the Ludlow note deprived the

petitioner of a fair trial. Lapointe v. Commissioner of

Correction, supra, 138 Conn. App. 468. The Appellate

Court agreed with the petitioner. See id., 476–80. After

setting forth the legal principles and standard of review

that govern claims under Strickland and Brady; id.,

474–76; see also footnotes 3 and 4 of this opinion; the

Appellate Court stated in relevant part: ‘‘[T]he state’s

suppression of the Ludlow note, and [first habeas counsel’s] failure to pursue that claim, warrants a new trial
for the petitioner. [The court] reach[es] that conclusion

for the following reasons. Culligan and Cosgrove testified that had the burn time information in the Ludlow

note been disclosed prior to the petitioner’s criminal

trial, their trial strategy would have changed. They

stated that they would have used the thirty to forty

minute estimate to buttress the petitioner’s alibi

defense, particularly because the estimate came from

one of the state’s fire marshals assigned to the investigation. As Culligan testified, [he and Cosgrove] would

have retained the services of an arson expert. At the

. . . habeas trial, the two experts called by the petitioner testified that the fire could not have been set

any earlier than 7:30 p.m. If that testimony had been

presented at the [petitioner’s] criminal trial, and credited by the jury, the petitioner’s whereabouts at and

after 7:30 p.m. would have been critical to his defense.

‘‘For that reason, as both trial counsel testified, they

would have called . . . Martin as a witness at the criminal trial. She consistently had maintained that the petitioner was in their home with her and their son the

entire evening of the victim’s homicide. During hertestimony at the suppression hearing, [Martin] stated that

the only time that the petitioner was not in her sight

was between 6:15 p.m. and 7 p.m., when she was bathing

their son. If the jury credited . . . Martin’s testimony,

it could have concluded that the petitioner was at home

watching television with [Martin] and their son when

the fire had been set.

‘‘[In addition], if . . . Martin had testified and the

jury believed her testimony, the jury could have concluded that the petitioner had, at most, a forty-five

minute window of time within which to commit the

crimes. This would mean that between 6:15 p.m. and 7

p.m., on the night of the homicide, the petitioner: (1)

walked the distance between his home and the victim’s

apartment;31 (2) had a cup of coffee with the victim

while they were chatting on the couch; (3) used the

victim’s bathroom, located close to the victim’s bedroom; (4) emerged from the bathroom, saw the victim

combing her hair and decided to sexually assault her;

(5) undressed himself, then tore the clothes off the

victim; (6) sexually assaulted the victim; (7) retrieved

a knife from the kitchen; (8) stabbed the victim ten

times in the back and once in the abdomen; (9) used

strips of cloth to tie them as a ligature so tightly around

the victim’s neck that the responding firefighters had

difficulty removing the cloth; (10) loosely tied bindings

around the victim’s wrists and stomach area; (11)

removed the victim from the bed and placed her on or

near the couch; (12) washed any blood from his body

and dressed himself; (13) set fires in three separate

locations in the victim’s apartment; and (14) walked

the distance from the victim’s apartment back to his

home. According to . . . Martin’s recorded statements

to Morrissey on July 4, 1989, and her testimony at the
suppression hearing, which the jury did not hear, the

petitioner was sitting in the living room when she came

downstairs from bathing their son, and there were no

signs of exertion or excitement. She noticed nothing out

of the ordinary in his behaviorthat evening.’’(Footnotes

altered.) Lapointe v. Commissioner of Correction,

supra, 138 Conn. App. 476–78.

‘‘[T]here is a reasonable probability that the result of

[the petitioner’s] criminal trial would have been different had the Ludlow note been disclosed to Culligan and

Cosgrove prior to trial. Nondisclosure prior to trial of

the portion of the Ludlow note describing the possible

burn time affected the overall fairness of the trial and

was so unfair as to undermine [the court’s] confidence

in the jury’s verdict. With the burn time estimate provided by one of the state’s fire marshals, trial counsel

testified that they would have retained the services of

an arson expert and that . . . Martin would have testified as to the petitioner’s whereabouts during the critical times of that evening. That evidence, if believed by

the jury, could have resulted in the jury’s finding that

it was temporally impossible for the petitioner to have

committed the crimes [of] which he was convicted. The

Ludlow note was exculpatory and material in these

circumstances. [First habeas counsel’s] performance

was deficient [in that] he failed to pursue that issue

at the first habeas proceeding, and the petitioner was

prejudiced by his failure to do so. The petitioner has

demonstrated that had there been effective representation by [first habeas counsel], there is a reasonable

probability that the first habeas court would have found

that the petitioner was entitled to . . . a new trial.’’32

(Footnote omitted.)Id., 478–80. Accordingly, the Appellate Court reversed in part the judgment of the third

habeas court and remanded the case with direction to

grant the petition for a writ of habeas as to the petitioner’s claim alleging ineffective assistance of counsel with

respect to the Brady violation and to order a new criminal trial.33 Id., 480. Although the Appellate Court did

not expressly say so, it appears, as the parties agree,

that the Appellate Court accorded no deference to the

determination of the third habeas court that there was

no reasonable probability that a jury would credit the

testimony of the petitioner’s experts. Instead, the Appellate Court exercised its own judgment with respect to

whether a jury reasonably could credit the testimony

of the petitioner’s experts.

We granted the respondent’s petition for certification

to appeal, limited to the issue of whether the Appellate

Court properly reversed the judgment of the third

habeas court and concluded that the petitioner is entitled to a new trial on the ground that first habeas counsel’s representation of the petitioner during the first

habeas trial was ineffective due to his failure to pursue

a claim that the state had suppressed the Ludlow note.

See Lapointe v. Commissioner of Correction, supra,
307 Conn. 941. On appeal, the respondent asserts that

the Appellate Court applied an incorrect standard of

review in evaluating the petitioner’s Brady claim, and,

as a result, it improperly concluded that a new trial is

required. In particular, the respondent contends that

the Appellate Court improperly failed to afford due

deference to the third habeas court’s determination that

the petitioner’s expert burn time testimony would have

had no effect on the outcome of his criminal trial, and

that, if the Appellate Court had accorded such deference to that determination, it would have concluded,

like the third habeas court, that first habeas counsel’s

failure to pursue a claim predicated on the state’s suppression of the Ludlow note did not constitute ineffective assistance of counsel under Strickland. The petitioner, on the other hand, maintains that the Appellate

Court correctly determined that the testimony of his

burn time experts reasonably could have been credited

by the original jury, and, if the jury did credit that

testimony, it undoubtedly would have concluded that

the petitioner could not possibly have committed the

crimes with which he was charged. As a result, the

petitioner contends that first habeas counsel’s failure

to raise a Brady claim predicated on the state’s suppression of the Ludlow note rendered counsel’s representation of the petitioner constitutionally deficient.

We agree with the petitioner that, notwithstanding

the findings of the third habeas court, there is, at the

very least, a reasonable likelihood that a jury, upon

hearing the testimony of the petitioner’s burn time

experts and Martin in light of the other trial evidence,

would harbor a reasonable doubt as to whether the

petitioner sexually assaulted and murdered the victim,

and then set her apartment on fire. As we explain more

fully hereinafter, because the materiality issue ultimately presents a question of law for this court, and

because we are not bound by the third habeas court’s

appraisal of the scientific underpinnings of the parties’

expert testimony, we exercise plenary review over

those issues. On the basis of that review, it is clear that

the question presented by this appeal must be resolved

in favor of the petitioner: because the state deprived

the petitioner of the opportunity to avail himself of

highly relevant alibi evidence—evidence that, as the

petitioner contends, the original jury readily could have

credited—fundamental fairness requires that the petitioner be afforded the opportunity to have a second jury

consider that exonerating testimony. Our conclusion

takes due account ofthe fact thatthe state’s case against

the petitioner was relatively weak, founded as it was

on highly questionable admissions. Accordingly, the

Appellate Court properly concluded that the judgment

of the third habeas court must be reversed in part and

that the petitioner was entitled to a new trial.

II
GOVERNING LEGAL PRINCIPLES

A

Brady and Strickland

‘‘In Brady, the United States Supreme 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 [as] to guilt

or to punishment, irrespective of the good faith or bad

faith of the prosecution. . . . In Strickler v. Greene,

527 U.S. 263, [281–82] 119 S. Ct. 1936, 144 L. Ed. 2d 286

(1999), the United States Supreme Court identified the

three essential components of a Brady claim, all of

which must be established to warrant a new trial: The

evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is

impeaching;34 that evidence must have been suppressed

by the [s]tate, either [wilfully] or inadvertently; and

prejudice must have ensued. . . . Under the last Brady

prong, the prejudice that the defendant suffered as a

result of the impropriety must have been material to

the case . . . .’’ (Footnote added; internal quotation

marks omitted.) State v. Ortiz, 280 Conn. 686, 717, 911

A.2d 1055 (2006). ‘‘[T]he evidence will be deemed material only if there would be a reasonable probability of

a different result if the evidence had been disclosed.’’

(Internal quotation marks omitted.) State v. Jordan, 314

Conn. 354, 370, 102 A.3d 1 (2014). This standard is met

if ‘‘the favorable evidence could reasonably be taken

to put the whole case in such a different light as to

undermine confidence in the verdict.’’ (Internal quotation marks omitted.) State v. Ortiz, supra, 717.

Furthermore, with ‘‘respect to Brady’s third prong,

a showing of materiality does notrequire demonstration

by a preponderance [of the evidence] that disclosure

of the suppressed evidence would have resulted ultimately in the defendant’s acquittal. . . . The question

is not whether the defendant would more likely than

not have received a different verdict with the evidence,

but whetherin its absence he received a fairtrial, understood as a trial resulting in a verdict worthy of confidence. . . . The United States Supreme Court [has]

emphasized that the [relevant test under United States

v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed.

2d 481 (1985)] is not a sufficiency of the evidence test.

. . . A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left

to convict. . . . One does not show a Brady violation

by demonstrating that some of the inculpatory evidence

should have been excluded, but by showing that the

favorable evidence could reasonably be taken to put

the whole case in such a different light as to undermine

confidence in the verdict. . . . Accordingly, the focus

is not whether, based [on] a threshold standard, the
result of the trial would have been different if the evidence had been admitted. We instead concentrate on

the overall fairness of the trial and whether nondisclosure of the evidence was so unfair as to undermine our

confidence in the jury’s verdict.’’ (Internal quotation

marks omitted.) State v. Ortiz, supra, 280 Conn. 717–18.

Put differently, materiality is established if the withheld

evidence is of sufficient import or significance in relation to the original trial evidence that it reasonably

might give rise to a reasonable doubt about the petitioner’s guilt. See United States v. Agurs, supra, 427 U.S.

112. Additionally, ‘‘a trial court’s determination as to

materiality under Brady presents a mixed question of

law and fact subject to plenary review, with the underlying historical facts subject to review for clear error.’’35

(Internal quotation marks omitted.) State v. Ortiz,

supra, 720. Finally, in the present case, we conduct the

required ‘‘independent review’’ of the record; id., 721;

mindful of the fact that this court’s ‘‘duty to search for

constitutional error with painstaking care is never more

exacting than it is in a capital case . . . .’’36 (Internal

quotation marks omitted.) Kyles v. Whitley, 514 U.S.

419, 422, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).

Under Strickland, ‘‘[a] claim of ineffective assistance

of counsel consists of two components: a performance

prong and a prejudice prong. To satisfy the performance

prong . . . the petitioner must demonstrate that his

attorney’s representation was not reasonably competent or within the range of competence displayed by

lawyers with ordinary training and skill in the criminal

law. . . . To satisfy the prejudice prong, [the petitioner] must demonstrate that there is a reasonable

probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’’

(Internal quotation marks omitted.) Janulawicz v.

Commissioner of Correction, 310 Conn. 265, 268 n.1,

77 A.3d 113 (2013). ‘‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’’ Strickland v. Washington, supra, 466 U.S. 694.

As in the case of an alleged Brady violation, ‘‘[i]n order

to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to

show that he is burdened by an unreliable conviction.’’

(Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 102, 52 A.3d

655 (2012). Finally, the respective roles of the habeas

court and the reviewing court are also the same under

Strickland as they are under Brady. As a general matter,

‘‘the underlying historical facts found by the habeas

court may not be disturbed unless they were clearly

erroneous . . . . [W]hether those facts constituted a

violation of the petitioner’s rights under the sixth

amendment [however] is a mixed determination of law

and fact that requires the application of legal principles

to the historical facts of [the] case. . . . As such, that

question requires plenary review by this court unfet-
tered by the clearly erroneous standard.’’ (Internal quotation marks omitted.) Gonzalez v. Commissioner of

Correction, 308 Conn. 463, 469–70, 68 A.3d 624, cert.

denied sub nom. Dzurenda v. Gonzalez, U.S. ,

134 S. Ct. 639, 187 L. Ed. 2d 445 (2013).

In the present case, the petitioner’s claim of a constitutional violation under Strickland and Brady implicates yet another constitutional protection, namely, the

right to present a defense. ‘‘[T]he federal constitution

require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense.’’

(Internal quotation marks omitted.) State v. Santana,

313 Conn. 461, 470, 97 A.3d 963 (2014). This right affords

a defendantthe opportunity to present his or her version

of the facts, along with that of the prosecution, ‘‘so that

[the jury] may decide where the truth lies’’; (internal

quotation marks omitted) id.; and includes the right to

present an alibi defense. E.g., State v. Bryant, 202 Conn.

676, 704, 523 A.2d 451 (1987). Finally, it bears emphasis

that, if the petitioner had been able to raise an alibi

defense at his criminal trial based on the testimony of

DeHaan, Kelder and Martin, the state would have been

required to disprove that defense beyond a reasonable

doubt. See, e.g., State v. Milardo, 224 Conn. 397, 407,

618 A.2d 1347 (1993).

B

The Principles of Brady and Strickland in Relation

to the Facts of the Present Case

For purposes of the present habeas petition, the petitioner was required to establish, under Strickland, that

first habeas counsel’s failure to pursue the Brady claim

concerning the state’s suppression of the Ludlow note

fell below the performance standard expected of competent habeas counsel and that the petitioner was prejudiced thereby. To make the necessary showing of prejudice, the burden was on the petitioner to demonstrate

that the Ludlow note had been withheld by the state

and was both exculpatory and material. In view of the

fact that the third habeas court treated the note as

exculpatory and assumed that it had been suppressed

by the state,37 the petitioner was required to establish

only that the note was material, a standard that is met

upon a showing that, if the note had been disclosed

before the petitioner’s criminal trial, there is a probability of a different outcome sufficient to undermine confidence in the outcome of that trial. Because the test for

materiality under Brady and the test for prejudice under

Strickland are the same—with respect to both, the petitioner must demonstrate that the alleged constitutional

impropriety gives rise to a loss of confidence in the

original outcome—the petitioner is entitled to a new

trial if he can demonstrate that first habeas counsel’s

failure to pursue a Brady claim predicated on the state’s

suppression of the Ludlow note was sufficiently harmful

to satisfy that standard. Because it has been determined
that the state’s failure to disclose the Ludlow note

deprived the petitioner of information that would have

led him to obtain expert burn time testimony demonstrating that the fire was set at a time when, according

to Martin, the petitioner was home with her, the success

of the petitioner’s Brady claim depends on whether

the original jury reasonably could have credited that

expert testimony.38

As we previously noted, the third habeas court found

that the testimony of both parties’ burn time experts

was thorough and extensive. Indeed, the third habeas

court characterized that testimony as ‘‘a prototypical

battle of . . . experts’’ who are highly qualified in their

field. Nevertheless, the third habeas court concluded

that the testimony of the petitioner’s experts, when

viewed in the light of Corry’s testimony, was not sufficiently credible to give rise to a reasonable probability

of a different result at the original trial, that is, it was

not persuasive enough such that the jury reasonably

might have credited it.39 The Appellate Court disagreed,

however, concluding that the petitioner’s expert testimony was of sufficient import and credibility that the

petitioner is entitled to a new trial at which the jury

will evaluate that testimony.

We therefore must decide whether the Appellate

Court properly determined that the third habeas court

was incorrect in concluding that the jury reasonably

could not have credited the testimony of the petitioner’s

burn time experts. As a reviewing court, we ordinarily

accord deference to credibility determinations that are

‘‘made on the basis of [the] firsthand observation of [a

witness’] conduct, demeanor and attitude.’’40 (Internal

quotation marks omitted.) State v. Kendrick, 314 Conn.

212, 223, 100 A.3d 821 (2014). In the present case, however, the third habeas court’s assessment of the testimony of DeHaan and Kelder was not predicated on

their demeanor or conduct on the witness stand, nor

was it related to anything else that would reflect

adversely on their credibility, such as untruthfulness,

bias, poor memory or substandard powers of observation. That assessment also was not dependent on any

underlying factual findings requiring the trial court’s

firsthand observation and determination of the credibility or reliability of other witnesses. Rather, the third

habeas court rejected the opinions of DeHaan and

Kelder solely because, in its view, those opinions lacked

an adequate foundation, first, because they were premised on facts that were contrary to the record in the

case, as reported by Corry, and, second, because the

court did not creditthe scientific underpinnings ofthose

opinions. In such circumstances, when the habeas

court’s assessment of the expert testimony has nothing

to do with the personal credibility of the expert witness

but instead is based entirely on the court’s evaluation of

the foundational soundness of the witness’ professional

opinion, this court is as well situated as the habeas
court to assess that testimony for Brady purposes.

The Indiana Court of Appeals recently addressed this

precise issue in a case that is factually and procedurally

indistinguishable in any material respect from this one.

In Bunch v. State, 964 N.E.2d 274 (Ind. App.), trans.

denied, 971 N.E.2d 1215 (Ind. 2012), the defendant, Kristine Bunch, who had been convicted of murder in the

arson-related death of her son, sought a new trial based

on newly discovered evidence concerning the place of

origin of the fire that she was found to have set. Id.,

279–80. As in the present case, one of the issues in

Bunch was the materiality of expert testimony concerning the fire; see id., 290; and the Court of Appeals was

called on to review the trial court’s finding that the

testimony of Bunch’s expert was not sufficiently worthy

of credit to warrant a new trial. See id., 283–85, 293. In

reversing the judgment of the trial court on that issue;

id., 297, 304; the Court of Appeals reviewed that expert

testimony without affording any deference to the trial

court’s finding that the testimony lacked persuasive

force and, therefore, did not support Bunch’s new trial

claim. See id., 292–93. Because we agree fully with the

well reasoned analysis of the Court of Appeals, we

repeat it in relevant part here: ‘‘In general, [w]hether a

[witness’] testimony at a [postconviction] hearing is

worthy of credit is a factual determination to be made

by the trial judge who has the opportunity to see and

hear the witness testify. . . . It is not within the province of [an] appellate court to replace a trial judge’s

assessment of witness credibility with its own. . . .

Thus, if the [trial] court expressly finds that the testimony of a fact witness is or is not worthy of credit, we

must accept that determination. . . .

‘‘However . . . the [trial] court did not find [that the]

testimony [of Bunch’s fire expert] was not worthy of

credit because it doubted her credibility or veracity

based [on] a firsthand evaluation of her demeanor; the

[trial] court found her testimony not worthy of credit

because it was in conflict with trial evidence . . . . In

other words, the [trial] court did not find [the expert]

unworthy of credit on the basis of her demeanor; it

found her expert opinion unworthy of credit on the

basis of its foundation. Under these circumstances, we

do not think it [is] necessary or appropriate to impute

a personal credibility determination to which we must

defer to the [trial] court. To do so would virtually eviscerate appellate review of [postconviction] denials

because we would have to speculate in every instance

that the [trial] court could have concluded [that] the

witness was not credible based on his or her demeanor.

‘‘Thus, although we would defer to the [trial] court’s

assessment of fact witnesses—for instance, a trial witness now recanting trial testimony or a new witness

offering never-before-heard exculpatory testimony—

we will not defer in this case to the [trial] court’s assess-
ment of an expert’s scientific evidence. We have the

ability to assess [the expert’s] testimony ourselves

because her credentials and the basis for her opinion

are part of the record. The [trial] court found [that the

expert’s] testimony was not reliable because she did

not establish the scientific principles for her conclusion

and because [her] conclusions contradicted [the] undisputed evidence and eyewitness testimony from the trial.

In making such a determination, the [trial] court did

not rely on her demeanor . . . but rather on the stated

bases for her opinion and review of the trial record.

We have the same information before us, and therefore

are able to independently assess whether [the expert’s]

testimony is worthy of credit without invading the province of the [trial] court.’’ (Citations omitted; emphasis

altered; internal quotation marks omitted.) Id.; see also

State v. Behn, 375 N.J. Super. 409, 431–33, 868 A.2d

329 (App. Div.), cert. denied, 183 N.J. 591, 874 A.2d

1108 (2005).41

This case presents the same exceptional factual and

procedural scenario as Bunch presents. Therefore, we,

like the Appellate Court, see no reason to defer to the

third habeas court’s predictive or probabilistic judgment as to whether the original jury reasonably might

have credited the testimony of the petitioner’s experts.42

This is particularly true because, as we explain in part

III A of this opinion, the record does not support any

of the reasons that the third habeas court provided in

substantiation of its conclusion that the jury reasonably

could not have credited the testimony of the petitioner’s

experts. In fact, ourreview of the record reveals nothing

to support the third habeas court’s conclusion. On the

contrary, there is strong reason to believe that the jury

might well have found the testimony of the petitioner’s

experts persuasive, especially in light of their unquestioned qualifications and experience.43

In light of this determination, we finally must decide

whether the testimony of the petitioner’s experts nevertheless is insufficient, when considered together with

the original trial evidence, to call into question the outcome of the petitioner’s criminal trial. We conclude that

there is a very high probability that that testimony, if

credited, along with Martin’s testimony, would give rise

to a reasonable doubt as to whether the petitioner committed the crimes of which he was convicted. Having

demonstrated, therefore, that there is a real and substantial probability that the testimony of DeHaan,

Kelder and Martin will result in the petitioner’s acquittal, the petitioner is entitled to a new criminal trial at

which he will have the benefit of that highly exculpatory evidence.

III

THE ISSUES

A
Whether a Jury Reasonably Could Credit

the Testimony of DeHaan and Kelder

We first address the respondent’s claim that the

Appellate Court improperly rejected the third habeas

court’s conclusion that DeHaan’s and Kelder’s testimony is not sufficiently credible to give rise to a reasonable doubt about the petitioner’s guilt. We disagree with

the respondent’s contention because the record belies

the third habeas court’s determination that, in all probability, the original jury would have reached the same

result even if it had heard that testimony.44

We begin with the credentials of the petitioner’s

experts. As the third habeas court observed, both

DeHaan and Kelder are highly experienced fire investigators, and they have worked in that field for a combined total of more than sixty years. DeHaan’s resume

is particularly impressive. In addition to his years of

service as a fire investigator for the Federal Bureau

of Alcohol, Tobacco and Firearms, and the California

Department of Justice, he has authored or coauthored

close to seventy-five scholarly articles or professional

papers and a college level treatise entitled, ‘‘Kirk’s Fire

Investigation,’’ which is presently in its seventh edition.

DeHaan’s treatise is utilized not only by students but

also by investigators in the field. In fact, the record

reflects that Corry himself relied on that treatise in

preparing his report on the fire at issue, as counsel

for the respondent did in connection with his crossexamination of Kelder. The record also reveals that

DeHaan has taught fire investigation for approximately

thirty years, and, at the time of the third habeas trial,

in the graduate forensic sciences program at the University of California, Davis. Because these factors alone

support the conclusion that a jury reasonably could

credit DeHaan’s and Kelder’s testimony, we turn to the

third habeas court’s reasons for reaching the opposite conclusion.

As we noted previously, the third habeas court, in

concluding that Corry was so much more persuasive

than DeHaan and Kelder that no jury reasonably could

credit DeHaan’s and Kelder’s testimony, relied on three

threshold or subordinate findings: (1) DeHaan and

Kelder mischaracterized the fire’s energy level; (2)

DeHaan and Kelder overestimated the fire’s ‘‘peak’’ temperature; and (3) DeHaan overestimated the temperature of the fire when Tomkunas entered the victim’s

apartment. With respect to the first two findings, the

third habeas court stated: ‘‘In contrast to . . . DeHaan

and Kelder, Corry opined credibly that ‘this was not a

high energy fire.’ He disputed DeHaan’s and Kelder’s

estimate[s] of peak temperature. . . . Corry testified

credibly that . . . DeHaan overstated the amount of

heat generated by [the] fire. . . . In addition, the photographs of the fire damage, or lack thereof, [to] materials

in the apartment . . . do not support . . . DeHaan’s
testimony that temperatures reached 400 degrees. . . .

When compared with Corry’s reasonable and measured

analysis, Kelder’s estimate of temperature at 1800

degrees appears wildly exaggerated.’’ With respect to

the third finding, the third habeas court stated: ‘‘Corry

noted that Tomkunas first responded to the call and

found [that] the door to the apartment was ‘hot,’ but

he did not burn himself. He sustained no injury to his

hands, his exposed ears or any other body part. These

facts, Corry pointed out, contradict . . . DeHaan’s estimate that the temperature upon entry was 400 degrees.

. . . Corry noted that Tomkunas had dropped to his

knees upon entering the apartment. Corry opined [that]

the temperature at that time was more likely 150 to

190 degrees. The fact that Tomkunas was not burned

contradicts any opinion that the temperature was 400

degrees. At 400 degrees, Corry cogently explained, one

would expect Tomkunas to [have] suffer[ed] injur[ies]

to the back of his neck and his hands at a minimum.’’

A review of the record reveals that the third habeas

court’s critique of the testimony of DeHaan and Kelder

is comprised of factually unfounded assertions. First,

contrary to the court’s finding, DeHaan and Kelder

nevertestified that the fire was a high energy fire. To the

contrary, DeHaan emphasized throughout his testimony

that the limited damage to the apartment was evidence

that the fire was not a high energy fire. He described

it as a ‘‘very limited scale fire,’’ no different from ‘‘an

average fireplace fire.’’45 When Kelder was asked

whether he would characterize the fire as high or low

energy, he similarly responded, ‘‘low energy,’’ which

he also believed was evidenced by the fact that the

apartment was not seriously damaged. Thus, although

the third habeas court found that Corry had persuasively rebutted DeHaan’s and Kelder’s testimony that

the fire was a high energy fire, the record is clear that

DeHaan and Kelder never provided the testimony that

Corry attributed to them. Indeed, when questioned

about the fire’s energy level, DeHaan and Kelder both

expressly characterized it as a low energy fire.

With respect to the third habeas court’s statement

that Corry had convincingly ‘‘disputed DeHaan’s and

Kelder’s estimate[s] of peak temperature,’’ the petitioner correctly observes that, as between Corry and

DeHaan, it was Corry who provided the higher estimate

of the fire’s peak temperature. On cross-examination,

the petitioner’s counsel asked Corry to comment on

several photographs that were taken inside the victim’s

apartment after the fire, one of which depicts a stack

of charred newspapers. Corry testified that all of the

papers in the photograph reveal ‘‘evidence of edge burning’’ and ‘‘a heating to the . . . preignition point.’’ When

asked whether the temperature must have been 600

degrees for the papers to begin to char, as depicted in

the photographs, Corry agreed and stated ‘‘[o]r more.’’

In contrast, DeHaan opined that temperatures inside
the apartment never exceeded 400 to 450 degrees. Thus,

the court’s reliance on Corry’s testimony to reject

DeHaan’s opinion that temperatures reached a peak of

450 degrees is misplaced because Corry himself testified that temperatures reached at least 600 degrees.

Indeed, on cross-examination, Corry agreed that the

temperature inside the victim’s apartment could have

been as high as 400 degrees even when firefighters

entered the building. His only point, he explained, was

that it could not have been 400 degrees at floor level

because none of the firefighters, all of whom entered

on their hands and knees within seconds of one another,

was burned.

Similarly unfounded is the third habeas court’s assertion that, ‘‘[w]hen compared with Corry’s reasonable

and measured analysis, Kelder’s estimate of temperature at 1800 degrees appears wildly exaggerated.’’ On

cross-examination, counsel for the respondent asked

Kelder his opinion as to ‘‘the maximum heat . . . that

was reached in the apartment . . . .’’ Kelder

responded: ‘‘The maximum, I would say, would be . . .

about 1800 degrees at ceiling level.’’ (Emphasis added.)

When asked what he had based this estimate on, Kelder

responded, ‘‘scientific proof. . . . [A]ny of the . . .

fire books that I’ve read and the schools that I [have]

attended [say] it’s 1800 to 2000 degrees at ceiling level

[for] any fire. . . . That’s the normal ceiling [temperature].’’ Kelder then explained that temperatures are

always much hotter at ceiling level. Corry never disputed this testimony. To the contrary, although he was

never questioned about ceiling level temperatures,

Corry stated that they necessarily would have been

‘‘hotter because the temperature rises as you go up, for

sure.’’ He also stated that ‘‘heat stratifies. The highest

temperatures are always found at the ceiling or close

to the ceiling, and, as you go down, they get less, which

is why little children are taught in schools to crawl

in fires, because you’re generally underneath a smoke

layer, and there’s more oxygen there and you can survive and actually escape a fire in many cases by crawling, [whereas] if you stood up, you might be killed or

seriously burned.’’ Finally, as we previously indicated,

Corry testified that temperatures would have to have

reached at least 600 degrees to bring the newspapers

to their preignition point, as depicted in some of the

crime scene photographs. In view of this testimony,

there simply is no factual basis for the third habeas

court’s finding that Kelder’s estimate of ceiling temperatures was ‘‘wildly exaggerated’’ and, therefore, that his

burn time estimate was unreliable.

In light of the foregoing, it is readily apparent that

the third habeas court’s first two assertions—that Corry

disputed DeHaan’s and Kelder’s testimony regarding

peak temperature, and that, ‘‘[i]n contrast to . . .

DeHaan and Kelder, Corry opined credibly that ‘this

was not a high energy fire’ ’’—are not supported by the
record. In fact, we can discern no disagreement among

the experts with respect to the fire’s peak temperature

or energy level. It is not surprising, therefore, that the

respondent makes no attempt to defend the third

habeas court’s assertion that there was a material difference in the testimony of the parties’ experts with

respect to the energy level of the fire and its peak temperature.

The third reason why the third habeas court found

Corry’s burn time estimate to be more persuasive than

DeHaan’s estimate was DeHaan’s purported testimony

that the floorlevel temperature inside the victim’s apartment was 400 degrees when Tomkunas entered the

apartment. Relying on Corry’s testimony, the third

habeas court reasoned that the temperature could not

have been 400 degrees because, if the temperature had

been that high, Tomkunas would have been injured,

and he was not. Relying on Corry’s characterization of

DeHaan’s testimony about the temperature at the time

of entry, the respondent contends that, because

DeHaan’s burn time estimate rested in large measure on

his assessment of entry level temperatures, ‘‘Tomkunas’

lack of injury . . . knocked [the] principal underpinnings of DeHaan’s opinion out from under it.’’ As the

petitioner notes, however, DeHaan never stated that

the floor level temperature inside the apartment was

400 degrees when Tomkunas entered. He testified,

rather, that the temperature inside the hot gas layer

was likely between 300 or 400 degrees when Tomkunas

entered the apartment. DeHaan explained that this estimate was based, in part, on Tomkunas’ testimony at

the petitioner’s criminal trial that, when he arrived at

the victim’s apartment, the outside of the front door

was hot to the touch, and ‘‘the temperatures and . . .

hot gases he encountered at nearfloorlevel were untenable, and he couldn’t go in, even though he suspected

there was a victim inside.’’ (Emphasis added.) When

asked whether he was able to determine what the temperature was at that time, DeHaan responded: ‘‘Only

very approximately, [on the basis of Tomkunas’ testimony] that, when he opened the door, there was smoke

down very low, and he got on his hands and knees and

he had no protective equipment on, and . . . when he

tried to crawl in, it was unpleasantly hot to his skin

. . . as well as smoky, and, at that point, he backed

out knowing he couldn’t go any further . . . . [S]hort

exposure like that, that’s probably going to be temperatures in the range of say [300] or 400 degrees . . . .

[T]hat’s enough to make most people not . . . go in

any further [with] . . . bare skin. . . . [That level of

temperature would cause second degree burns upon]

prolonged contact . . . .’’

Later, during cross-examination, DeHaan clarified

that his estimate of entry level temperatures referred

to the temperature inside ‘‘the hot gas layer’’ of the

fire. DeHaan explained that, in his experience, if the
temperature had been much lower than 300 to 400

degrees, Tomkunas would not have been deterred from

entering the victim’s apartment, and, if the temperature

had been much higher, there would have been more

damage to the apartment. DeHaan also testified that

studies have shown that the average person will not

attempt to enter a room if the temperature is 250

degrees or higher, unless he has no option but to do so.

Finally, DeHaan opined that, although an experienced

firefighter might be willing to brave slightly higher temperatures, the fact that Tomkunas was hindered in his

efforts to enter the victim’s apartment suggests that the

temperature in the hot gas layer of the fire was in the

range of 300 to 400 degrees.

Notably, at the petitioner’s criminal trial, Tomkunas

testified that, when he first arrived on the scene, he

tried to enter the victim’s apartment on his own but

was forced back by the substantial heat and ‘‘[h]eavy

smoke condition.’’ Specifically, Tomkunas stated that,

after he kicked in the front door, there ‘‘was a lot of

heat, so [he] dropped to [his] knees . . . to stay below

[the] smoke and heat.’’ Tomkunas testified that he

crawled several feet into the room but immediately

had to retreat because ‘‘[i]t was too hot and smoky.’’

According to Tomkunas, after his initial, unsuccessful

attempt to enter the apartment, he told the firefighters

who arrived after him that they had to ‘‘vent’’ the building ‘‘to remove the heat and smoke and hot gases.’’ One

of those firefighters, Boland, ran to the back of the

building and opened a set of sliding glass doors.

According to Boland, ‘‘once [he] opened the [sliding

glass] door[s] . . . [the apartment] cross vented,

because the front door was open and the [sliding glass]

door[s] [were] open, so it started to clear.’’ Both Tomkunas and Boland testified that, after the apartment was

vented, they were able to enter and locate the victim.

Consistent with Tomkunas’ and Boland’s trial testimony, DeHaan also testified at the petitioner’s habeas

trial that, once ‘‘conditions [inside the apartment] were

changed by the responding firefighters . . . Tomkunas’ opening the front door and [Boland’s] . . . opening the slid[ing] [glass doors] at the rear, that allowed

. . . some of the accumulated smoke to leave and

allowed entry for the firefighters.’’46 (Emphasis added.)

Although it is perfectly clear that both DeHaan and

Kelder were aware that firefighters vented the victim’s

apartment prior to entry, and that Tomkunas had tried

unsuccessfully to gain entry into the apartment by himself prior to the arrival of the other firefighters, Corry

either was unaware of these facts or refused to accept

them. Corry maintained, throughout his testimony, that

there was only one entry into the apartment by firefighters, which was not preceded by a venting. On direct

examination, Corry was asked on several occasions

whether he agreed with DeHaan’s estimate of entry

level temperatures. The first time he was asked this
question, he responded: ‘‘[T]he fact that, [on] the night

of the fire, all . . . of the firefighters: [Tomkunas], William Boland . . . William Parker and Douglas Boland,

who were [all] in [the apartment] at basically the same

time from different angles—none of them described

high temperature on entry. They described heavy

smoke. None of them talked about temperature. And,

more importantly, none of them [was] injured in any

way. And they would have been if the temperature had

been anywhere close [to] 400 degrees, as . . . DeHaan

said. . . . They would have been burned.’’ Counsel for

the respondent then asked Corry whether he had

‘‘reach[ed] a conclusion regarding the temperatures that

Tomkunas and the other firefighters encountered when

they entered the apartment . . . .’’ Corry responded:

‘‘Safe to say, it was elevated 120, 130 [degrees], something like that.’’ Thereafter, the following exchange

between counsel for the respondent and Corry ensued:

‘‘Q. Do you recall reading . . . DeHaan’s report?

‘‘A. Yes.

‘‘Q. And you heard his testimony?

‘‘A. I did.

‘‘Q. Do you recall what temperature he opined . . .

Tomkunas encountered when he entered the apartment?

‘‘A. 400 degrees.

‘‘Q. Based on your research, is that possible?

‘‘A. It is not possible.

‘‘Q. Would an individual who was not wearing protective clothing and entered [an apartment] with temperatures of 400 degrees be injured?

‘‘A. Yes. Couldn’t help it.

‘‘Q. And would they be able to tolerate remaining in

that environment?

‘‘A. No. Well . . . it all depends [on] how much they

wanted to be burned, but they would be burned, and

they’d be in substantial pain. And these were men who

were, number one, on their hands and knees, which

would expose the nape of their neck [and] the back of

their ears, which are the most sensitive parts of our

bodies, to temperature, and none of them described

any burns or even mentioned heat in their original statements taken [on] the night of the fire.’’

Thus, it is evident that Corry attributed to DeHaan

testimony that he never gave, namely, that the floor

level temperature inside the victim’s apartment when

the firefighters entered was 400 degrees. It also is evident that the third habeas court accepted Corry’s characterization of DeHaan’s testimony without verifying

whether DeHaan actually had opined in the manner

attributed to him by Corry. In fact, DeHaan never was
questioned about the temperature inside the apartment

after it was vented and all of the firefighters were able

to enter. Nor did he express an opinion with respect

to the floor level temperature when Tomkunas first

entered the apartment on his own and was turned back.

DeHaan simply stated that the temperature inside the

hot gas layer was likely in the range of 300 to 400

degrees when Tomkunas made his first attemptto enter,

before the arrival of the other firefighters.47 DeHaan

also opined that the hot gas layer did not radiate much

heat downward toward the floor because there was

no damage to the apartment’s synthetic carpet, which

would have melted even at much lower temperatures.48

Corry’s testimony regarding the effects of heat on

human skin, in particular, his statements that the ‘‘thermal tolerance data for unprotected skin of humans at

rest would suggest a limit of about 248 degrees’’ and

that the ‘‘upper level limit of survivability in terms of

breathing [is] 300 degrees,’’ supports ratherthan contradicts DeHaan’s testimony that the temperature inside

the apartment was approximately 300 to 400 degrees

when Tomkunas arrived. If the temperature had been

much lower, an experienced firefighter like Tomkunas

would not have been deterred from entering. As we

have indicated, DeHaan testified that Tomkunas would

have sustained second degree burns upon prolonged

exposure to such temperatures. As DeHaan also testified, however, this explained why Tomkunas was

unable to proceed farther into the apartment when he

first arrived, even though he knew that there might be

someone inside. As DeHaan stated, ‘‘it was hot enough

to dissuade [Tomkunas from] entering . . . the room.’’

Moreover, it is difficult to fathom Corry’s response

when, on cross-examination, the petitioner’s counsel

pointed out to him that Tomkunas had testified at the

petitioner’s criminal trial that the heat and smoke prevented him from entering the apartment when, unaccompanied by other firefighters, he first attempted to

do so: Corry’s response was simply to refuse to accept

Tomkunas’ testimony. Specifically, when the petitioner’s counsel asked Corry why Tomkunas’ testimony that

the smoke and heat forced him out of the building was

inconsistent with DeHaan’s testimony that the temperature was likely 300 to 400 degrees in the hot gas layer

at that stage of the fire, Corry responded: ‘‘That’s what

[Tomkunas] said at the trial, not what he said in his

initial statement.’’ In support of this response, Corry

explained that all of the firefighters gave statements to

the police on the night of the fire, and, although those

statements are contained in a police report that never

was entered into evidence,Corry read them in preparing

to testify. According to Corry, the report does not mention that any of the firefighters either were injured or

forced out of the apartment by the heat. Corry stated

that, as far as he was concerned, the police report was

a more reliable gauge of the conditions that Tomkunas
had encountered on the night in question, more so than

‘‘what [Tomkunas] said under oath in [a] capital [felony]

trial,’’ because, ‘‘in general, witnesses closer to the time

of the incident will give a better recollection.’’

Without the benefit of the report to which Corry was

referring, we can only surmise its contents. Itis unlikely,

however, that the investigating officer who prepared

the report questioned Tomkunas and his fellow firefighters in minute detail about their entry into the apartment. But even if we assume that the officer had thought

to ask the firefighters about entry level temperatures,

no doubt none of them reported extremely high temperatures inside the apartment because, as both Tomkunas

and DouglasBoland testified, they vented the apartment

before entering together as a group to extinguish the

fire and to search for the victim. The fact that Corry

felt free to disregard Tomkunas’ sworn testimony on

this issue, on the basis of what he himself conceded

was nothing more than ‘‘a report written by a police

officer [on the night of the fire] as to what somebody

told him’’—or did not tell him, as the case may be—is

perplexing, to say the least. In any event, insofar as the

third habeas court’s determination that a jury reasonably could not credit the expert opinions of DeHaan

and Kelder was predicated on Corry’s mischaracterization of their testimony regarding the energy level and

peak temperature of the fire, and entry level temperatures, that determination lacks support in the record.

It bears noting that the third habeas court also found

that DeHaan’s and Kelder’s burn time estimates were

‘‘totally contradicted by the historical and physical evidence marshaled by Corry.’’ Because the respondent

elected not to place Corry’s written report in evidence,

the only basis for this finding was Corry’s trial testimony.49 When asked to explain why DeHaan’s burn time

estimate was unreliable, however, Corry could point

only to DeHaan’s testimony concerning the 400 degree

temperature that the firefighters confronted upon

entry—testimony that, as we have explained, DeHaan

never gave. Corry explained that, if DeHaan was wrong

that the floor level temperature was 400 degrees, ‘‘then

he’s wrong . . . his assumptions are . . . incorrect on

the longevity of the fire . . . .’’ Corry also stated that

it was ‘‘clear that the fire occurred at an earlier time

than what [DeHaan was] saying [because the fire]

dropp[ed] in temperature enough . . . so that Tomkunas and the other firefighters were not injured.’’

Because Corry’s assessment of DeHaan’s opinion concerning the burn time of the fire was predicated on a

misconception of DeHaan’s testimony about the entry

level temperature, Corry’s criticism of DeHaan’s burn

time estimate is similarly baseless.

Significantly, Corry’s description of the fire and the

variables that affected it was otherwise identical to

DeHaan’s and Kelder’s analysis of the fire. Indeed, on
cross-examination, Corry even conceded, consistent

with DeHaan’s testimony, that the temperature ‘‘might

very well have been 400 degrees somewhere in that

room’’ when Tomkunas entered the apartment. His

point, he explained, was simply that it could not have

been 400 degrees at floor level because none of the

firefighters was burned when the firefighters entered

and made their way into the interior of the apartment.

Like DeHaan and Kelder, Corry testified that the fire

burned out quickly due to the apartment’s heavy insulation and lack of ventilation. Corry likened the apartment

to a ‘‘thermos’’ and stated that the fire was ‘‘substantial’’

but burned only ‘‘for a brief period of time’’ due to

‘‘decreasing levels of oxygen . . . .’’ On the basis of

the photographs, Corry also opined that there might

have been a blanket or some other object on the couch

that prevented the fire from exhausting its main fuel

source, which, according to Corry, was the couch cushions, and that that the blanket or object prevented the

fire from becoming much larger. Apart from expressing

the view that the firefighters were not injured when

they entered the apartment, however, Corry offered no

scientific reason for his conclusion that the fire could

have been set considerably earlier than DeHaan and

Kelder hypothesized.50 Rather, when asked whether he

had reached a conclusion regarding the earliest time

that the fire could have been set, Corry merely cited

witness accounts of the victim’s whereabouts on the

day of the murder.51

Above and beyond our determination that the third

habeas court’s stated reasons for discrediting the burn

time estimates of DeHaan and Kelder are baseless, our

examination of the entire record reveals no other apparent reason why a jury would be apt to discredit their

testimony. As we have indicated, their credentials certainly provide no such reason. Furthermore, although

there is nothing in the record that would lead to the

conclusion that a jury necessarily would credit Corry’s

burn time estimate over those of DeHaan and Kelder,

there are several reasons why a jury might well be

inclined to discredit that estimate. First, as we previously discussed, Corry’s opinion is based on a police

report that purportedly contains certain statements that

firefighters gave to the police on the night of the fire but

that never was introduced into evidence. In particular,

Corry based his conclusions on inferences drawn from

what Tomkunas did not say in those statements and

elected to ignore Tomkunas’ sworn trial testimony that

directly contradicted the strained inferences Corry

gleaned from the report not in evidence. Second,

although counsel for the respondent opted not to introduce Corry’s written report into evidence, the petitioner’s counsel read extensively from it during his crossexamination of Corry. At the time, the petitioner’s counsel accused Corry of having altered his conclusions

about the fire after listening to DeHaan’s testimony in
an effort to create an opportunity for the respondent’s

counsel to argue that the fire could have been started

earlier than DeHaan had determined. Although Corry

denied the accusation, insisting that his testimony was

wholly consistent with the findings in his report, he

admitted that, after listening to DeHaan’s testimony, he

felt the need to reexamine the available evidence for

the purpose of discrediting DeHaan’s findings. He also

acknowledged that of the more than ninety-five criminal

cases he had worked on, he never had testified on behalf

of a criminal defendant and would be ‘‘hesitant’’ ever

to do so. Although there is nothing inherently untrustworthy about Corry’s preference for working for the

prosecution, certain portions of his testimony reasonably might be viewed as tending to support the petitioner’s counsel’s portrayal of him as someone more concerned with assisting the respondent than with seeking

to establish the truth.

For example, on direct examination, Corry was asked

a series of questions designed to elicit criticism of

DeHaan’s and Kelder’s findings. With respect to Kelder,

the questions focused on the information that he had

relied on in formulating his burn time estimate, in particular, the fact that he had assumed, for purposes of his

analysis, that the cushions on the victim’s couch were

made of latex foam. DeHaan had concluded that the

cushions were made of polyurethane foam, a different

material, and Corry had agreed with that conclusion at

trial. In an effort to discredit Kelder’s burn time estimate, counsel for the respondent asked Corry: ‘‘Would

you be able to properly analyze this fire if you didn’t

know the difference between latex foam rubber and

polyurethane foam?’’ Corry responded, ‘‘[n]o.’’ The next

day, however, on cross-examination, it was revealed

that Corry also had assumed that the cushions were

made of latex foam for purposes of his analysis. Following that revelation, Corry provided a very different

answer to the question, posed by the petitioner’s counsel, of whether one could properly analyze the fire if

he did not know that the couch cushions were made

of polyurethane foam:

‘‘Q. But, in your report, you have that . . . the material was latex rubber . . . . Correct?

‘‘A. Right.

‘‘Q. Which is not what you’re saying now?

‘‘A. Well, there’s a reason for that. This couch closely

resembles couches that I’ve seen manufactured in the

1970s . . . that did contain foam rubber. That was the

principal foam material up [until] the time that polyurethane began to replace foam rubber, but it’s really a

matter of six of one, half dozen of another, since both

of them perform in a similar manner in fires. . . .

[Foam] rubber and foam plastics have similar heat

release rates, fire propagation rates, ignition tempera-
tures, and so forth.’’ These contradictory answers by

Corry hardly instill confidence in his testimony.

Corry’s testimony is replete with similar inconsistencies. Sometimes, he contradicted himself for no apparent reason, such as when he denied ever calling the

fire a low energy fire. As we previously noted, at trial,

the respondent’s counsel focused on the fire’s energy

level and how it may have affected the fire’s development, so much so that the third habeas court, in its

memorandum of decision, included a finding that,’’[i]n

contrast to . . . DeHaan and Kelder, Corry opined

credibly that ‘this was not a high energy fire.’ ’’ As we

explained, however, this finding lacks support in the

record because both DeHaan and Kelder opined that

the fire was a low energy fire. Nevertheless, on direct

examination, Corry repeatedly characterized the fire as

a ‘‘low energy’’ fire, on one occasion describing it as

‘‘a very low energy fire’’ and asserting, at another point,

that there was ‘‘abundant evidence that clearly shows

. . . that this fire was low energy . . . .’’ (Emphasis

added.)

On cross-examination, however, Corry denied ever

characterizing the fire in terms of low energy. During

one heated exchange with the petitioner’s counsel,

Corry was asked: ‘‘Now, as I understand your testimony

. . . [you said] that there’s a low energy fire set in this

couch, and this low energy fire kind of really becomes

a smoldering fire, right?’’ Corry responded: ‘‘I didn’t say

it was a low energy fire. It’s lower than it could have

been.’’ The petitioner’s counsel then asked Corry: ‘‘Well,

I thought that’s exactly what you said . . . in your testimony on direct examination. That’s exactly what you

said; it was a low energy fire.’’ Corry responded, in part:

‘‘I don’t believe I said anything like that.’’

Needless to say, it is not the role of this court to make

credibility determinations, and we therefore express no

opinion as to whether Corry is a more persuasive or

convincing witness than DeHaan or Kelder. Our sole

purpose in drawing attention to the inconsistences in

Corry’s testimony is merely to underscore why, contrary to the conclusion of the third habeas court, the

original jury might well have credited the burn time

opinions of DeHaan and Kelder, and why it might well

have rejected Corry’s estimate. Of course, on retrial, it

is possible that the jury will not find the testimony of

DeHaan and Kelder persuasive; like all witnesses, they

will be subject to impeachment, and, at that new trial,

the state may be able to present an expert or experts

who, in contrast to Corry, provide testimony explaining

why the burn time opinions of the petitioner’s experts

lack persuasive force. Or the jury might conclude, like

the third habeas court did, that it simply is not possible

to determine the burn time of a fire, even within relatively broad parameters, with any degree of confidence

or exactitude. But, for purposes of the present case,
which involves the suppression of exculpatory evidence

by the state, our task is not to determine whether the

jury more likely than not would have credited their

testimony, such that the petitioner would have prevailed at a new trial. Cf. Shabazz v. State, 259 Conn.

811, 827–28, 792 A.2d 797 (2002) (in resolving merits

of petition for new trial based on newly discovered

evidence, trial court must determine whether petitioner

has established that new trial will produce different

result). The question, rather, is whether the jury reasonably could have credited the testimony of the petitioner’s witnesses. On the record before us, there simply

is no legitimate basis for concluding that the jury reasonably could not have credited the testimony of

DeHaan and Kelder, both of whom are well credentialed

and highly experienced experts in theirfield, and whose

testimony, when coupled with that of Martin’s, supports

the petitioner’s contention that he could not possibly

have sexually assaulted and killed the victim.

This observation, however, does not end our inquiry.

We still must determine whether, if the original jury

had considered the original trial evidence together with

DeHaan’s and Kelder’s testimony that the fire was set

no earlier than 7:30 p.m., as well as Martin’s unwavering

testimony that the petitioner was home with her and

their son watching television at that time, there is a

probability of a different result sufficient to undermine

confidence in the jury’s verdict. For the reasons set

forth in part III C of this opinion, this standard has

been met. Indeed, the state’s less than compelling case

against the petitioner was such that any new evidence

tending to cast doubt on the petitioner’s responsibility

forthe charged crimes could well have lead to an acquittal, and the petitioner’s expert testimony concerning the

burn time of the fire, coupled with Martin’s testimony,

certainly raises doubts about the reliability of the petitioner’s conviction.

Before turning to a discussion of the original trial

evidence, however, we first address the three contentions raised by Justice Zarella in his dissenting opinion:

(1) we have treated the respondent unfairly by deciding

a claim that the parties have not raised; (2) we incorrectly have concluded that the Appellate Court properly

exercised de novo review of the third habeas court’s

determination as to whether a jury reasonably could

credit the testimony of the petitioner’s experts; and

(3) the record establishes, as the third habeas court

determined, that the petitioner’s expert testimony is

not worthy of credit. We reject each of these claims.

B

Justice Zarella’s Arguments

1

Justice Zarella contends that, in concluding that the

third habeas court’s materiality determination is not
entitled to deference, we have ‘‘summon[ed] down [our]

deus ex machina’’ and decided an issue that the parties

neverraised, thereby ‘‘silencing’’ the respondent, inflicting ‘‘acute’’ harm on the state and ‘‘undermin[ing] the

fairness of our judicial process.’’ Justice Zarella’s rhetoric may make for entertaining reading, but the facts

categorically refute his accusations.

Some brief background is necessary in order to fully

understand why Justice Zarella’s argument is both

unfaithful to the record and baseless. It is undisputed

that the Appellate Court accorded no deference to the

third habeas court’s findings with respect to the credibility of the parties’ burn time experts. See Lapointe v.

Commissioner of Correction, supra, 138 Conn. 476–79.

According to Justice Zarella, however, the Appellate

Court did not evaluate the testimony of the petitioner’s

experts, as Brady requires, to ascertain the materiality

of the Ludlow note in light of the record as a whole

but, rather, concluded that neither the Appellate Court

nor the third habeas court had any role whatsoever in

assessing the expert testimony. In other words, as Justice Zarella indicates, the Appellate Court never undertook an analysis of the testimony and, instead, merely

‘‘hypothesiz[ed]’’ what a jury could find if it credited

the testimony and, on the basis of that ‘‘speculation,’’

concluded that ‘‘a new jury, and not the habeas court,’’

should evaluate it. (Emphasis in original.) In Justice

Zarella’s view, because this approach obviously is

improper, and because, according to Justice Zarella,

the petitioner’s only claim is that we should approve

the Appellate Court’s use of such a methodology, our

analysis begins and ends there: the respondent prevails

on appeal, the judgment of the Appellate Court is

reversed, and the judgment of the third habeas court

denying the habeas petition is reinstated. Proceeding

any farther, Justice Zarella asserts, would take us

beyond the scope of the claims raised in this appeal.52

Justice Zarella’s assertion to the contrary notwithstanding, there is absolutely no basis for presuming that

the Appellate Court concluded that neither it nor the

third habeas court had a role in evaluating the credibility

of the parties’ expert testimony and that those courts’

sole responsibility, instead, was to speculate as to what

the original jury might have concluded if it had credited

the petitioner’s expert testimony. Under this approach,

any defendant who makes a claim under Brady—no

matter how preposterous or outlandish the testimony

that provides the basis for that claim—automatically

would be entitled to a new trial if, assuming that a jury

believed it, that jury might find the defendant not guilty.

No one, let alone a court of law, ever would advocate

for such a ludicrous standard, as it is perfectly obvious

that a defendant cannot be entitled to a new trial under

Brady when an objective assessment of the testimony

on which the defendant’s claim is based reveals that it

is incredible or unworthy of belief. Because there is no
support in the law of this or any other jurisdiction for

the bizarre proposition that our courts play no part

in evaluating the credibility of evidence presented to

establish a Brady claim—and because common sense

dictates that that approach cannot possibly be correct—

it verges on insulting to presume that the Appellate

Court employed such a patently improper and utterly

unworkable approach.

Moreover, a review of the Appellate Court’s decision

positively belies any such presumption. First, the Appellate Court discussed the facts of the case at length;

Lapointe v. Commissioner of Correction, supra, 138

Conn. App. 456–58, 462–63, 468–73; and summarized

the parties’ expert burn time testimony in the context

of the relevant facts. Id., 472–73. The Appellate Court

also explained the decision and factual findings of the

third habeas court; id., 472–74; and observed that the

third habeas court had found that the petitioner’s

experts provided thorough and extensive testimony

concerning the fire’s burn time. Id., 473. The Appellate

Court then properly set forth the standard of review

and governing legal principles under Brady and Strickland; id., 474–76; and, in so doing, quoted from this

court’s decision in State v. Ortiz, supra, 280 Conn. 720,

in which we explained that, on appeal, the issue of

materiality presents a mixed question of law and fact,

with the trial court serving as the fact finder. Lapointe

v. Commissioner of Correction, supra, 138 Conn. App.

475. Ultimately, on the basis of the testimony of the

parties’ experts, the Appellate Court concluded that the

petitioner is entitled to a new trial, and, as Justice Zarella acknowledges, it did so without affording any deference to the third habeas court’s contrary findings. See

id., 476–79. Because, under our law—and so far as we

know, the law of every other jurisdiction—the only

alternative to deferential appellate review is de novo

appellate review, it is apparent that the Appellate Court

engaged in that latter form of review. As we have

explained, that is the correct standard of review in the

present case.

Finally, in defending his interpretation of the Appellate Court’s decision, Justice Zarella asserts that there

is no indication in that decision that the Appellate Court

evaluated the petitioner’s expert testimony to determine whether a jury reasonably could credit it. Justice

Zarella argues, rather, that the Appellate Court simply

concluded ‘‘that assessing the credibility of the expert

witnesses was a task best left to a jury,’’ without any

assessment of their testimony either by the trial court

or by the Appellate Court. In support of his assertion

that the Appellate Court concluded that no judicial

review of the parties’ expert testimony was the proper

approach, Justice Zarella quotes the following language

from a footnote in the Appellate Court’s decision: ‘‘If

the Ludlow note had been disclosed to trial counsel,

however, it would have been the responsibility of the
jury and not the court to weigh the credibility of the

arson experts. Whether the burn time evidence, which

was so critical in buttressing [the petitioner’s] alibi

defense, raised a reasonable doubt as to the petitioner’s

guilt would best be a determination left to the jury and

not [to] a habeas court.’’ (Emphasis omitted; internal

quotation marks omitted.) Part II of Justice Zarella’s

dissenting opinion, quoting Lapointe v. Commissioner

of Correction, supra, 138 Conn. App. 476–77 n.17. The

portion of the Appellate Court’s decision that Justice

Zarella fails to mention—the portion that places the

language on which Justice Zarella relies in its proper

context—leaves no doubt that the Appellate Court

reached its conclusion that the petitioner is entitled

to a new trial under Brady only after undertaking an

independent review of the parties’ expert testimony.

More specifically, after stating that the testimony of

the petitioner’s two experts would have been critical

to establishing an alibi, the Appellate Court ‘‘conclude[d] that there is a reasonable probability that the

result of [the petitioner’s] criminal trial would have

been different had the Ludlow note been disclosed to

[the petitioner’s trial counsel] prior to [his criminal]

trial. Nondisclosure prior to trial of the portion of the

Ludlow note describing the possible burn time affected

the overall fairness of the trial and was so unfair as

to undermine our confidence in the jury’s verdict. With

the burn time estimate provided by one of the state’s

fire marshals, trial counsel testified that they would

have retained the services of an arson expert and that

. . . Martin would have testified as to the petitioner’s

whereabouts during the critical times of that evening.

That evidence, if believed by the jury, could have

resulted in the jury’s finding that it was temporally

impossible for the petitioner to have committed the

crimes [of] which he was convicted. The Ludlow note

was exculpatory and material in these circumstances.

[First habeas counsel’s] performance was deficient

when he failed to pursue that issue at the first habeas

proceeding, and the petitioner was prejudiced by his

failure to do so. The petitioner has demonstrated that

had there been effective representation by [first habeas

counsel], there is a reasonable probability that the first

habeas court would have found that the petitioner was

entitled to [the] reversal of [his] conviction and a new

trial.’’ (Emphasis added; footnote omitted.) Id., 478–80.

It is simply impossible to read this passage and conclude that the Appellate Court did not undertake a substantive and independent review of the petitioner’s

expert testimony. Only by evaluating the substance of

the testimony and concluding that it was sufficiently

credible could the Appellate Court have concluded, as

it did, that the petitioner’s inability to use it at trial

adversely ‘‘affected the overall fairness of [the petitioner’s criminal] trial and was so unfair as to undermine

[the Appellate Court’s] confidence in the jury’s verdict.’’
Id., 478–79. In other words, unless the Appellate Court

actually examined and assessed the evidence, there is

no way that the Appellate Court could have determined

that, if the expert testimony had been available to the

petitioner at his criminal trial, there is a reasonable

probability of a different verdict, as Brady requires.53

Not surprisingly, the respondent does not claim that

the Appellate Court concluded that neither it nor the

third habeas court was obligated to review the expert

testimony but, rather, was to merely assume that such

testimony was credible.54 In fact, the respondent

expressly recognizes that the Appellate Court did

review the parties’ expert testimony. For example, the

respondent claims that, ‘‘[a]s for the testimony of Martin, Kelder and DeHaan, the Appellate Court’s conclusion that this evidence would have supported the

[petitioner’s] alibi defense is not sustainable.’’ (Emphasis added.) The respondent also claims that the Appellate Court ‘‘failed to consider the [state’s] compelling

evidence of guilt’’ in conducting its review of the testimony of DeHaan, Kelder and Martin. At no time has

the respondent ever suggested that the Appellate Court

viewed itself and the third habeas court as having no

role in evaluating the credibility of the parties’ expert

testimony. Nor has the respondent ever claimed that

the Appellate Court did not conduct a substantive, de

novo review of that testimony. He argues, rather, that

the Appellate Court improperly failed to defer to the

determination of the third habeas court in concluding

that a jury reasonably might credit the petitioner’s

experts.55 Consistent with this contention, the respondent’s brief contains a thoroughgoing discussion of why

the Appellate Court’s review of the expert testimony

should have been tempered by deference to the findings

of the third habeas court. Because the respondent himself claims that the Appellate Court should have

deferred to the conclusion of the third habeas court,

ratherthan conducting a de novo review, it defies credulity to assert that the respondent was not on notice that

we would decide the claim, as Justice Zarella asserts.56

Ironically, then, it is Justice Zarella who would decide

this appeal on the basis of a claim that has not been

raised or briefed by the parties, that is, the propriety

of the Appellate Court’s purported determination that

a Brady violation automatically entitles a defendant

to a new trial, without any judicial evaluation of the

credibility of the testimony that supports a finding of

that violation.57

Having asserted, wrongly, that the respondent lacked

notice that we would decide whether the third habeas

court’s determination was subject to deferential or de

novo review, Justice Zarella compounds his error by

alleging that the respondent also could not have known

that we might decide that issue against him and, if we

did, that we then would proceed to the issue of whether

the Appellate Court properly concluded that the third
habeas court had resolved the issue incorrectly. This

argument fails, of course, because it is based on a false

premise. Because the respondent asked us to decide

the proper standard of review, it hardly could be clearer

that he was on notice that, if we disagreed with his

contention that the Appellate Court improperly

employed a de novo standard of review, we also would

decide whether the Appellate Court, having applied that

standard, reached the correct conclusion in reversing

the judgment of the third habeas court. Otherwise, we

would be unable to determine whether the judgment

of the Appellate Court should be affirmed or reversed.

See State v. Fausel, 295 Conn. 785, 793, 993 A.2d 455

(2010) (‘‘in a certified appeal, the focus of [this court’s]

review is . . . [on] the actions of the Appellate Court’’

[internal quotation marks omitted]). We therefore reject

Justice Zarella’s manufactured allegation that we have

‘‘silenc[ed]’’ the respondent by ‘‘denying [him] notice

and a chance to brief the issue . . . .’’58

In light of the foregoing, it is apparent that we have

not decided an issue that the parties have not raised.

On the contrary, the respondent himselfraised the issue

about which Justice Zarella complains and then fully

briefed it. Clearly, Justice Zarella’s assertion that it is

somehow unfair of us to decide the respondent’s claim

against him fails because it is against all logic and common sense. As we have explained, in arguing that the

judgment of the Appellate Court should be reversed

because that court merely assumed the credibility of the

petitioner’s expert testimony without evaluating that

testimony, it is Justice Zarella who would resolve this

appeal on the basis of a claim that has not been raised.

That would be unfair.

2

Justice Zarella also challenges our determination that

the Appellate Court properly exercised de novo review

over the third habeas court’s predictive judgment as

to whether a jury reasonably could have credited the

petitioner’s experts. He contends that our conclusion

is foreclosed by our case law, that we have improperly

usurped the function of the third habeas court in

reviewing its findings de novo because that court necessarily was in a better position to assess credibility than

we are, and that employing that standard of review in

the present case violates the state constitutional prohibition against fact-finding by an appellate tribunal.

We disagree.59

With respect to Justice Zarella’s first claim, we have

explained, in part II of this opinion, why, like the courts

in Bunch v. State, supra, 964 N.E.2d 292–93, and State

v. Behn, supra, 375 N.J. Super. 431–33, we are convinced

that the Appellate Court properly exercised de novo

review over the third habeas court’s conclusion concerning the likelihood that a jury would credit the petitioner’s experts, and we need not belabor our reasoning
here. Suffice it to say that this case presents a highly

unusual scenario: the third habeas court’s probabilistic

assessment was predicated solely on the scientific opinions of highly qualified experts whose character, reliability and veracity never have been questioned, and the

third habeas court’s ability to evaluate their credibility

firsthand, on the basis of their performance on the witness stand, had no bearing on that court’s judgment.

The court’s decision, rather, was based solely on its

view that the foundation of the opinion expressed by

the respondent’s expert was sounder than the opinions

of the petitioner’s experts.60 In such circumstances, we

are in as good a position as the third habeas court

to gauge whether a jury reasonably could credit the

opinions of the petitioner’s experts. Although we agree

fully with Justice Zarella that the general rule is one of

deference, even in cases involving claims under Brady,

this case represents a limited exception to that rule

because, as we previously discussed; see footnotes 42

and 43 of this opinion and accompanying text; there is

no justification for deferring to the third habeas court’s

findings and compelling reason not to do so. Justice

Zarella’s observation that we cannot cite an appellate

case from this state in which we have applied such an

exception proves only one thing: we previously have

not had a case on all fours with this one.61 The fact that

such a case is so uncommon, moreover, is a complete

answer to Justice Zarella’s ‘‘the sky is falling’’ contention that we have opened the floodgates to future

litigants, for only in the rare case that a litigant can

establish that his case is materially similar to this one

will he be entitled to de novo review of the lower court’s

materiality determination.

Justice Zarella accuses us of improperly usurping the

fact-finding role of the third habeas court because, in

his view, ‘‘[e]valuating the credibility of a witness’ oral

testimony is a complex process that always entails

consideration of subjective factors like the attitude,

candor and demeanor of the witness, and this assessment cannot be based solely on objective factors

reflected in the printed record.’’ (Emphasis in original.)

We disagree that the assessment of testimony, in particular, the evaluation of expert testimony by the court,

necessarily and invariably involves consideration of the

subjective factors that Justice Zarella identifies. This is

a case in point. As we have explained, there is nothing

in the record to suggest that the decision of the third

habeas court was predicated on the court’s subjective

view of the credibility of the parties’ experts, and the

court’s explanation of its decision demonstrates convincingly that subjective considerations did not cause

the court to credit the respondent’s expert, Corry, over

the petitioner’s experts, DeHaan and Kelder. Rather, as

the third habeas court expressly stated, it was persuaded by the soundness of Corry’s scientific opinion

and by Corry’s critique of the testimony of DeHaan and
Kelder. In view of the objective reasons that the third

habeas court gave for its conclusion, and in the absence

of any indication, expressed or otherwise, that the court

relied on purely subjective factors in discrediting the

petitioner’s experts, we will not presume that it did so.

This conclusion is reinforced by the fact that, at oral

argument before this court, the respondent’s appellate

counsel acknowledged that the third habeas court had

‘‘to fully articulate its reasons for making a credibility

determination’’ and, further, that ‘‘we have a habeas

court here making a credibility determination and

assigning very specific reasons for why [it] did that.’’

(Emphasis added.)

With respect to Bunch v. State, supra, 964 N.E.2d 274,

Justice Zarella makes three arguments in an attempt to

discredit our reliance on the reasoning of that case.

None of those arguments undermines the validity of

that reasoning to even the slightest degree. First, he

suggests that Bunch is distinguishable because it

involves a petition for a new trial based on newly discovered evidence, whereas the present case involves a

claim founded on Brady and Strickland. Justice Zarella

further asserts that Indiana applies a different standard

for determining the merits of new trial petitions than

we do in this state. These are classic distinctions without any difference. The fact that the court in Bunch

addressed a claim based on newly discovered evidence

is wholly irrelevant because that claim requires exactly

the same analysis as claims under Brady and Strickland, as they entail the same considerations.62 With

respect to the argument that the elements of a new trial

claim based on newly discovered evidence differ in

Indiana and Connecticut, this, too, is irrelevant because

the precise nature of those elements has absolutely

nothing to do with the separate and distinct issue of

whether the findings of either state’s trial courts are

entitled to deference in those cases.

Justice Zarella next argues that Bunch is inconsistent

with this state’s jurisprudence because our cases reveal

that we have erected an absolute bar to de novo review

of findings by a trial court, no matter what the circumstances. This is simply not true. When there is sound

reason not to defer to the trial court—that is, when we

are in as good a position as the trial court to decide

the issue—we need not, and will not, do so.63 Like

Bunch,

64 this is such a case, and Justice Zarella has

failed to identify any flaw in the reasoning of Bunch

that would warrant a contrary conclusion.

Justice Zarella’s third and final contention is that

engaging in de novo review of the third habeas court’s

materiality determination runs afoul of the state constitutional ban on fact-finding by an appellate tribunal.

See, e.g., Styles v. Tyler, 64 Conn. 432, 461, 30 A. 165

(1894). The respondent has not raised a constitutional

objection to the Appellate Court’s allegedly improper
failure to defer to the findings of the third habeas court,

and it therefore is not proper for Justice Zarella to do

so. Because Justice Zarella addresses it, however, we

also will do so. Review of the claim makes clear why

the state did not raise it: it is devoid of merit.

In Styles, this court discussed the division of authority between trial courts and appellate courts as contemplated by the state constitution, and explained that

‘‘pure issues of fact’’ fall outside the authority of the

latter. Id. In other words, appellate courts do not try

cases or retry cases on appeal. As the court in Styles

made clear, however, the fact-finding that is constitutionally prohibited does not include appellate review of

facts found by the trial court. See id., 459. Furthermore,

‘‘[a]mong the questions of law belonging to the jurisdiction of this court . . . are . . . questions of legal conclusion when law and fact are so intermingled that the

main fact is not a pure question of fact but a question

of the legal conclusion to be drawn from subordinate

facts and also questions whether particular subordinate

facts constitute the basis for a conclusion of fact or a

conclusion of law . . . .’’ Id. As we have explained,

materiality under Brady and Strickland is a mixed question of law and fact.

In the present case, de novo appellate review of the

third habeas court’s materiality decision does not

impermissibly intrude on that court’s fact-finding function because it does not require appellate fact-finding

at all. Ourreview of the testimony of the parties’ experts

does not require us to disturb the third habeas court’s

relative credibility judgment, that is, its determination

that the respondent’s expert was more credible than

the petitioner’s experts. Nor does it deprive the third

habeas court of its responsibility to evaluate that expert

testimony on the basis of its firsthand assessment of

the parties’ experts, because the court’s ultimate conclusion with respect to the credibility or persuasiveness

of the experts’ opinions was not based on its superior

position to evaluate them. This is so because the third

habeas court made no factual findings that derived from

its ability to assess the credibility of the experts in light

of their conduct and demeanor on the witness stand.

Indeed, the third habeas court’s assessment did not

require any findings at all with respect to disputed

issues of historical fact. Rather, the third habeas court’s

probabilistic judgment was predicated on its belief,

based solely on the foundational underpinnings of the

various expert opinions, that the opinion of the respondent’s expert was sounder, and therefore more deserving of credit, than those of the petitioner’s experts.

Because we are in as good a position as the third habeas

court to evaluate the substance of those opinions, we

are also as well positioned to decide whether a jury

reasonably might credit them. For that reason, our de

novo review of the third habeas court’s predictive judgment does not usurp the role of that court in any way,
and, consequently, there is no reason for us to defer to

it. In such circumstances, the issue gives rise to a question of law, and there is no constitutional violation.

Although the foregoing discussion resolves Justice

Zarella’s constitutional claim, it bears noting that Justice Zarella has a very broad view of the scope of the

constitutional ban on appellate fact-finding. This view,

however, ignores the fact that our appellate authority

extends to actions that implicate the fact-finding function to a far greater degree than the de novo review

that we exercise in the present case. For example, under

the second prong of the clearly erroneous standard, we

may substitute our view for that of the fact finder when,

although there is sufficient evidence in the record to

support a particular finding, the reviewing court nevertheless ‘‘is left with the definite and firm conviction

that a mistake has been committed.’’(Internal quotation

marks omitted.) State v. Maurice M., 303 Conn. 18,

27, 31 A.3d 1063 (2011); see also id., 37, 44 (reversing

conviction of defendant, despite evidentiary support for

jury’s finding of guilt, because this court had definite

and firm conviction that mistake had been made).

Another such example is State v. Kitchens, 299 Conn.

447, 10 A.3d 942 (2011), in which we concluded that

defense counsel’s failure to raise a constitutional challenge to the trial court’s jury instructions may,

depending on the circumstances, constitute a waiver

of the defendant’s right to raise such a claim on appeal.

See id., 482–83. As we explained in Kitchens, because

such a waiver is implied rather than express, it ‘‘arises

from an inference that the defendant knowingly and

voluntarily relinquished the right in question.’’ (Emphasis omitted.) Id., 483. As this court also has observed,

the decision whether to draw an inference in any given

set of circumstances is a quintessential ‘‘question of

fact, to be answered by a fact finder.’’ State v. Diaz,

226 Conn. 514, 526 n.8, 628 A.2d 567 (1993); see also

id. (‘‘The process of making a legal determination of

whether a particular inference drawn by a fact finder

is reasonable, as opposed to the process of determining

whetherto draw such an inference, is particularly familiar to a reviewing court. That is the essence of the

difference between a question of law, to be answered

by a reviewing court, and a question of fact, to be

answered by a fact finder.’’). Despite the fact intensive

nature of this inquiry—as we explained in Kitchens,

whether to draw an inference of waiver ‘‘must be based

on a close examination of the record and the particular

facts and circumstances of each case’’; State v. Kitchens, supra, 483—this court, and not the trial court in

which the alleged waiver occurred, is responsible for

deciding, as a matter of fact, whether counsel waived

the claim. See id. Nevertheless, this decision is considered a question of law over which we exercise plenary

review. E.g., State v. Davis, 311 Conn. 468, 477, 88 A.3d

445 (2014). It simply cannot be that the constitution
permits the kind of fact bound determinations that are

required under the second prong of the clearly erroneous test and under our Kitchens waiver methodology

but bars plenary review in the present case, as Justice

Zarella maintains.65

3

Justice Zarella argues that, notwithstanding the myriad factual errors contained in the third habeas court’s

memorandum of decision, the record nevertheless supports the conclusion that no jury reasonably could

credit the petitioner’s experts. To this end, Justice Zarella makes three primary arguments in an effort to demonstrate why the testimony of the petitioner’s experts

‘‘simply is not reliable . . . .’’ They are: (1) the fact that

Tomkunas was not burned upon entering the victim’s

apartment renders DeHaan’s burn time estimate unreliable; (2) DeHaan mistakenly believed that the temperature inside the victim’s apartment prevented Tomkunas

from entering the apartment when he first arrived; and

(3) DeHaan’s testimony was internally inconsistent and

therefore unreliable. None of these arguments, however, is supported by the record.

First, Justice Zarella argues that, because Tomkunas

crawled several feet into the victim’s apartment when

he first arrived, and remained inside for as long as

fifteen to twenty seconds before being forced to retreat,

the fact that Tomkunas was not burned ‘‘completely

contradicts DeHaan’s claim that the [victim’s] apartment was close to 400 degrees when Tomkunas first

kicked in the door.’’ Justice Zarella’s argument is predicated on the same fundamental misunderstanding of

DeHaan’s testimony that led the third habeas court so

far astray, namely, that DeHaan testified that floor level

temperatures were 400 degrees when Tomkunas

entered the building. As we have explained, DeHaan

never was asked about floor level temperatures. More

importantly, he made it clear that, when he spoke of

entry level temperatures in the 300 to 400 degree range,

he was referring to temperatures in the hot gas layer

of the fire, not floor level temperatures. See footnote 47

of this opinion and accompanying text. Indeed, DeHaan

was of the view that not even the hot gas layer temperature reached higher than 450 degrees at the fire’s peak,

and that it radiated very little heat downward toward

the floor because the victim’s synthetic rug was not

damaged in any way. See footnote 48 of this opinion.

DeHaan explained that, ‘‘even under fairly low radiant

heat intensities, synthetic fabrics like carpets tend to

start to melt, and, when they do, they get kind of crispy

to the touch,’’ which did not happen to the victim’s

carpet.

Despite the clarity of DeHaan’s testimony with

respect to the meaning of ‘‘entry level temperatures,’’

Justice Zarella insists that ‘‘DeHaan estimated that Tomkunas would have experienced temperatures near 400
degrees ‘to the bare skin,’ ’’ and, therefore, the third

habeas court properly discredited his burn time estimate. Only by taking a handful of DeHaan’s words out

of context and ignoring the remainder of his testimony

is it possible for Justice Zarella to attribute to DeHaan

the view that floor level temperatures were 400 degrees

when Tomkunas entered the building, or at any other

time. The testimony that Justice Zarella relies on to

support this argument is the last four words of DeHaan’s

response to the questions of whether, in the course of

his investigation, he was able to determine entry level

temperatures, and what bearing those temperatures had

on his estimate of the fire’s burn time. With respect to

whether he was able to determine entry level temperatures, DeHaan responded: ‘‘Only very approximately,

[on the basis of Tomkunas’ testimony] that when he

opened the door, there was smoke down very low, and

he got on his hands and knees and he had no protective

equipment on, and . . . when he tried to crawl in, it

was unpleasantly hot to his skin . . . as well as smoky,

and, at that point, he backed out knowing he couldn’t

go any further . . . . [S]hort exposure like that, that’s

probably going to be temperatures in the range of say

[300] or 400 degrees . . . . [T]hat’s enough to make

most people not . . . go in any further [with] . . .

bare skin.’’ We do not understand DeHaan to be saying

that Tomkunas’ bare skin was exposed to 400 degree

temperatures. To the extentthat there may be ambiguity

in this portion of DeHaan’s testimony, however, it is

entirely dispelled by the remainder of his testimony. As

we previously indicated; see footnote 47 of this opinion;

on cross-examination, the respondent’s counsel asked

DeHaan exactly what he meant when he ‘‘estimated

that the temperature in the apartment when . . . Tomkunas entered was 300 [to 400] degrees . . . .’’ DeHaan

responded, ‘‘I’m talking about the hot gas layertemperature . . . .’’ DeHaan then explained that, in his view,

the hot gas layer never was much hotter than 400

degrees because there was so little damage to the rug,

which would have melted at much lower temperatures.

Moreover, it does not take an expert in fire forensics

to realize that a person would be severely burned from

any kind of prolonged exposure to 400 degree temperatures. To suggest that a person of DeHaan’s professional

standing and expertise was unaware of this fact is patently unreasonable.66

Accordingly, contrary to Justice Zarella’s assertions,

it is not in the least surprising that Tomkunas was not

burned when he first crawled into the apartment, particularly in light of his testimony that he was on his hands

and knees the entire time, intentionally staying below

the hot gas layer. As Corry himself stated, temperatures

are always much hotter the higher up you go in a room,

which is why children are told to crawl on their hands

and knees in a fire. In this way, Corry explained, they

may avoid injury, even in situations where, if they were
to stand up, they could be severely burned or killed.

Indeed, the entire issue of whether it was 400 degrees

atfloorlevel when Tomkunas entered the victim’s apartment seems little more than a construct, inserted into

the proceedings by Corry two months after DeHaan

had testified. As we previously indicated, Corry stated

that, after listening to DeHaan’s testimony, he went

back to the drawing board in an effort to refute it. What

he came up with, it appears, was the notion that DeHaan

had stated that it was 400 degrees at floor level when

the firefighters entered the apartment, and that the temperature obviously could not have been that high

because none of the firefighters was burned. Specifically, Corry stated that ‘‘DeHaan said [it was] 400

degrees. That’s what we were investigating.’’ Corry further stated that, ‘‘if it was 400 degrees at the floor, [the

fire] would have burned [the firefighters], and it didn’t.’’

Notably, on cross-examination, Corry admitted that it

could very well have been 400 degrees in the hot gas

layer when Tomkunas entered the apartment. Corry

explained that his only point was that it could not have

been 400 degrees at floor level because none of the

firefighters was burned. Indeed, it bears emphasis that

Corry’s acknowledgment thatthe temperature in the hot

gas layer could have been 400 degrees when Tomkunas

arrived fully supports DeHaan’s estimate of the fire’s

burn time, which, as we previously discussed, was predicated on hot gas layer temperatures being in the range

of 300 to 400 degrees.

In a similar vein, Justice Zarella asserts that DeHaan’s

burn time estimate is unworthy of credit because it is

predicated on DeHaan’s mistaken belief that the heat

prevented Tomkunas from crossing the threshold of the

victim’s apartment when he first arrived. Specifically,

Justice Zarella argues that DeHaan appears not to have

been aware that Tomkunas was able to crawl several

feet into the apartment before being forced out by the

heat, which likely affected DeHaan’s calculation of the

entry level temperature. We disagree with Justice Zarella’s view of the record, which clearly reflects the fact

that DeHaan read all of Tomkunas’ trial testimony and

was fully aware that Tomkunas entered the victim’s

apartment briefly, on his hands and knees, before being

forced out by the heat. In fact, not only did DeHaan

testify that Tomkunas entered the apartment on his

hands and knees before being forced out, his written

report on the fire, which was entered into evidence as

a full exhibit, provides in relevant part: ‘‘[Tomkunas]

kicked the door open to find heavy smoke and considerable heat within. Without protective equipment, he

crawled on hands and knees into the front entry far

enough to see flaming fire on the couch against the left

wall but was forced out by the conditions.’’ (Emphasis

added.) In light of this evidence, Justice Zarella’s assertion that DeHaan was unaware that Tomkunas actually

proceeded a short distance into the apartment when
he first arrived is simply wrong.

We are also perplexed by Justice Zarella’s insistence

that, ‘‘[a]t no time during his [trial] testimony did [Tomkunas] say that he was prevented from even entering

the apartment as a result of the heat.’’ Justice Zarella

contends that, after his initial entry, Tomkunas left the

apartment only because ‘‘the heat and smoke conditions

convinced him that rescue efforts would be ‘a lot easier’

if the apartment was vented,’’ not because it was too

hot to remain inside. As with Justice Zarella’s other

factual arguments, this contention is contradicted by

the record. When initially asked whether he was able

to remain in the apartment after kicking in the front

door, Tomkunas responded: ‘‘No, I was not. . . . It was

too hot and smoky. I had to go . . . out.’’ He also stated

that the heat and the smoke, which he described as

‘‘very, very dangerous,’’ ‘‘forced [him] to retreat . . . .’’

Tomkunas further stated that, before attempting a second entry, it was necessary to ‘‘smash a window . . .

to remove the heat and smoke and hot gasses from the

building.’’ In arguing that the heat was not so great as

to prevent Tomkunas from remaining in the building,

Justice Zarella relies on a single statement by Tomkunas: ‘‘If I could get somebody to vent, it was a lot easier.’’

The broader context of that statement, however, as

reflected in the following colloquy between the state

and Tomkunas, which Justice Zarella has omitted from

his dissenting opinion, leaves no doubt that Tomkunas,

upon his arrival at the scene, was forced from the apartment due to the high heat and dangerous smoke conditions inside the apartment:

‘‘Q. Now, with respect to the volume of smoke, how

would you characterize that when you first entered—

what [was] the volume of smoke . . . in the apartment?

‘‘A. If I could use a technical term, ‘well charged.’

‘‘Q. And is that a term of significance as far as firefighting is concerned?

‘‘A. Yes it is.

‘‘Q. And how would you explain it to us?

‘‘A. A building that’s well charged with smoke is so

full, there’s no—there’s actually little to no oxygen left

in the building, and it’s a very, very dangerous situation.

‘‘Q. Dangerous to whom . . . ?

‘‘A. It would be dangerous to anybody in there and

anybody who attempted to get in without proper precautions.

‘‘Q. And you’ve indicated that the heat and the smoke

forced you to retreat after some fifteen to twenty seconds. Is that correct?

‘‘A. That’s correct.
* * *

‘‘Q. Can you tell us why you retreated?

‘‘A. It was just too hot and too smoky. If I could get

somebody to vent, it was a lot easier.’’

Justice Zarella also argues that DeHaan’s testimony

‘‘that entry level temperatures were too high for Tomkunas even to enterthe apartment conflicts with DeHaan’s

own testimony about the fire’s energy level’’ because

‘‘DeHaan testified that the fire would have produced a

relatively small amount of heat and would have been

approachable, even at its maximum intensity. DeHaan

explained that the fire’s intensity ‘would probably be

about the same as an average fireplace fire. It would

be pumping a lot of heat into this room, but not so

much that you couldn’t—you couldn’t approach it, for

instance, to try to extinguish it . . . .’ ’’ (Emphasis

omitted.) For reasons that we previously discussed, we

reject Justice Zarella’s assertion that DeHaan testified

that entry leveltemperatures prevented Tomkunas from

entering the apartment at all when he first arrived. We

also do not perceive any conflict between DeHaan’s

testimony regarding the fire’s energy level and his estimate of entry level temperature. When DeHaan likened

the fire’s energy level to that of an average fireplace

fire, it was solely in an attempt to explain why there

was so little damage to the victim’s apartment. DeHaan

attributed the lack of damage in the apartment to the

heat release rate of the fire, which he estimated never

exceeded 250 to 350 kilowatts. DeHaan explained that

a 350 kilowatt fire will produce temperatures in the

range of 400 degrees. DeHaan further explained that,

if there had been more ventilation inside the apartment,

‘‘a love seat like [the one in the victim’s apartment] is

capable of generating [a] maximum heat release rate

. . . in the order of 2000 kilowatts. In other words, it

would have been six times [as] big [of a] fire; the fire

would have basically reached the ceiling, actually

spread across the ceiling, and it might have actually

brought this whole room to involvement.’’ If this had

occurred, DeHaan testified, it would not have been possible for a firefighter simply to walk up to the fire and

extinguish it. In contrast, a firefighter easily could have

approached the fire on the victim’s couch, assuming,

of course, that he or she was wearing appropriate attire,

because the fire’s heat release rate never exceeded 350

kilowatts, and the fire never spread beyond the couch

to other materials in the room. Indeed, it was undisputed that, with proper clothing and breathing equipment, which Tomkunas did not have with him when he

arrived, he would have had no difficulty approaching

and extinguishing the fire upon his initial entry.67

In addition to his primary arguments, Justice Zarella

also asserts that the testimony of Igoe, Roy and Christopher Marvin, three fire investigators who were at the
crime scene on the night of the murder, supports the

third habeas court’s determination that it was not possible to ascertain the fire’s approximate burn time. We

disagree with Justice Zarella’s interpretation ofthe testimony of these witnesses, all of whom stated unequivocally that they did not perform the type of investigation

that would have enabled them to estimate when the

fire started. For example, one of the witnesses, Roy,

testified that he had no recollection of the events of

that evening and that his role at the time was limited

to moving furniture, sweeping the floor, and the like.

Although we also dispute the remainder of Justice Zarella’s factual contentions, we need not belabor the matter

further because, even if we were to assume that a jury

reasonably could find Corry’s testimony more persuasive than that of DeHaan and Kelder, that would not

alter our conclusion that the third habeas court’s materiality determination was incorrect as a matter of law.

This is so because, as we have indicated, there is absolutely nothing in DeHaan’s or Kelder’s testimony, or

anywhere else in the record, that would permit the

conclusion that a jury reasonably could not credit

their testimony.68

Having addressed Justice Zarella’s claims, we now

turn our attention to the second component of the test

for materiality under Brady and Strickland, that is,

consideration of the petitioner’s expert testimony in

light of the original trial evidence, for the purpose of

determining whether our confidence in the verdict is

undermined by that expert testimony.69 As we explain,

the answer to that question is most certainly ‘‘yes.’’

C

Original Trial Evidence

It is beyond dispute that the state’s case against the

petitioner rested almost entirely on his incriminating

statements, without which the state would have been

unable to obtain a warrant based on probable cause,

let alone a conviction of capital felony.70 There was

no physical evidence connecting the petitioner to the

crime, exceptforthe factthat, along with approximately

one third of the male population, including another

suspect in the present case,71 the petitioner is a secretor

with type A blood, the same blood type as the person

who left a semen stain on the victim’s bedspread.72 The

state also sought to link the petitioner to the victim’s

murder because he previously had undergone a vasectomy, and no sperm were found in the semen stain. At

trial, however, Beryl Novitch, the lead criminalist at the

state forensic laboratory who examined the stain at

issue, testified that it was not at all unusual to obtain

a semen sample containing no sperm even though the

donor’s semen contains sperm.73

With respect to the petitioner’s statements, the petitioner alleged in his first habeas petition that his confes-
sion was false, and, in furtherance of this claim, he

maintained that he was unable to knowingly, intelligently and voluntarily participate in the police interrogation because of his mental impairment. The first

habeas court dismissed this claim upon concluding,

inter alia, that, because ‘‘[t]he petitioner’s real argument

. . . is that his statements were involuntary [and therefore inadmissible] under the federal constitution’’;

Lapointe v. Warden, Superior Court, judicial district

of Hartford, Docket No. CV-97-0571161 (September 6,

2000) (Freed, J.); the claim was barred by this court’s

determination, in connection with the petitioner’s direct

appeal from the judgment of conviction, that the trial

court reasonably had concluded that the petitioner’s

admissions were voluntary. State v. Lapointe, supra,

237 Conn. 703; see footnote 16 of this opinion. For

purposes of evaluating the strength of the state’s case

against the petitioner, however, the issue is not the

voluntariness of the petitioner’s admissions—a threshold issue that concerns the admissibility of his statements—but, rather, whether a jury would find those

statements trustworthy or reliable because they constitute a true and accurate reflection of the petitioner’s

involvement in the victim’s murder.

Relatively little was known about false confessions

at the time of the petitioner’s criminal trial. See, e.g.,

State v. Perea, 322 P.3d 624, 641 (Utah 2013) (observing

that, ‘‘[i]n the 1990s, little research had been conducted

on the phenomenon of false confessions’’). Significantly, since then, an abundance of social science

research about the phenomenon has been conducted,74

and, due largely to advances in DNA testing, scores of

false confessions have been identified. These developments prompted the United States Supreme Court

recently to observe: ‘‘By its very nature, custodial police

interrogation entails inherently compelling pressures.75

. . . Indeed, the pressure of custodial interrogation is

so immense that it can induce a frighteningly high percentage of people to confess to crimes they never committed.76 Corley v. United States, 556 U.S. 303, 321, 129

S. Ct. 1558, 173 L. Ed. 2d 443 (2009) . . . .’’ (Citations

omitted; footnotes added; internal quotation marks

omitted.) J. D. B. v. North Carolina, U.S. , 131

S. Ct. 2394, 2401, 180 L. Ed. 2d 310 (2011). Moreover,

it is now ‘‘well established that people with mental

illness and mental deficiencies are more prone than

others to confess falsely, either because of an inordinate

desire to accommodate and agree with authority figures

or because they are unable to cope with the psychological intensity of the police interrogation, which frequently includes the use of sophisticated ploys and

techniques designed to weaken the suspect’s resolve.’’

State v. Edwards, 299 Conn. 419, 446, 11 A.3d 116 (2011)

(Palmer, J., concurring); see also, e.g., B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go

Wrong (2011) p. 38 (noting that of forty DNA exonera-
tions discussed, 76 percent of exonerees who falsely

confessed were either juveniles—33 percent—or mentally disabled—43 percent).

One cannot evaluate the strength of the state’s evidence against the petitioner in the present case incognizant of the fact that our awareness of the phenomenon

of false confessions has increased vastly in the nearly

twenty-five years since the petitioner’s conviction. One

also cannot read the petitioner’s statements to the

police, particularly in light of the testimony of the officers who elicited them, and not be left with serious

concerns about their reliability.

First, as we previously indicated, the record reveals

that the petitioner suffers from a mental impairment.

Although the state argued at his criminal trial that he

was not ‘‘retarded’’ in a technical sense, it did not dispute that Dandy-Walker syndrome, a congenital malformation of the skull, had left the petitioner with such

serious cognitive deficits that many people who knew

him simply assumed that he was ‘‘retarded . . . .’’77

According to his school records, the petitioner was

eighteen years of age when he finally completed the

eighth grade, which was as far as he progressed in

school.78 Among other deficits, Dandy-Walker syndrome

probably caused the petitioner to be slow and unsteady

on his feet, and he also was severely visually impaired

from a young age, and later became hearing impaired.

In an effort to demonstrate the severity of the petitioner’s mental impairment, his trial counsel called

numerous witnesses to testify at the petitioner’s criminal trial and at a hearing on his motion to suppress.

Without exception, they described the petitioner as a

quirky, gullible and childlike man whose funny appearance and simplemindedness made him the constant butt

of jokes.79

Following his arrest, the petitioner also was examined by a number of psychiatrists and psychologists,80

all of whom testified at the petitioner’s trial and

described him in remarkably similarterms: slow-witted;

childlike; compliant; genial; guileless; talkative; and

very concrete and inflexible in his reasoning. None of

them observed any signs of psychosis or mood disorder.

All of them seemed to agree, however, that, because

of the nature of his cognitive impairment, the petitioner

was quite capable of confessing to a murder that he did

not commit. Donald R. Grayson, a psychiatrist, wrote

in one report that the petitioner ‘‘reportedly signed a

confession . . . in an attempt to extricate himself from

a stressful situation and to be able to go to the bathroom

and get water. Hearing this explanation from the average person would not have seemed believable to [me].

However, after spending a few hours with [the petitioner], [I] could not help but find his explanation quite

believable, in view of his concrete approach to life and

his apparent[ly] limited intellectual capacity.’’81
According to Anne M. Phillips, a clinical psychologist

in private practice, the petitioner presents ‘‘considerably younger than his chronological age’’ and has a

‘‘[f]ull [s]cale IQ [of] 92,’’ which puts him in the ‘‘lower

end of the average range of intelligence . . . .’’ Phillips

concluded that neurological damage from DandyWalker syndrome, however, prevented the petitioner

from fully accessing his intelligence. According to Phillips, the petitioner’s ‘‘expressive vocabulary is . . .

fairly weak, which may reflect an aphasic difficulty

related to his historical neurological problems. His limited vocabulary may also contribute to the interpersonal

impression of much lower overall intellectual ability

which [he] creates. He is not good at expressing his

thoughts orfeelings and is apt to be awkward and rather

childlike in his expression. [The petitioner] also appears

limited in receptive language, partially due to acuity

problems, and partially to comprehension limitations.

As a result, he is inclined to sometimes respond arbitrarily to conversation or questions [that] he does not

fully understand. [The petitioner also] tends to be quite

concrete and inflexible in his reasoning, understanding

situations in a narrow and set way, and having considerable difficulty adopting alternative interpretations of

events, or even making sense of unfamiliar events.’’ At

trial, Phillips testified that ‘‘interpersonally, [the petitioner] comes across as a funny little guy, kind of odd,

and, when he responds to questions in a very literal

fashion—[such as] when you ask him who his mother

is, [and] he says, ‘Mrs. Lapointe,’ or when you ask him

about his childhood, and he says, ‘I was a boy’—there

is a sense of ‘H[uh]?’ ’’

82

With respect to the statements to the police, although

the nine hour interrogation was not recorded, the testimony of the three officers who conducted it provides

significant insight into the tactics that were used and

the petitioner’s state of mind during questioning. Upon

his arrival at the Manchester police station, the petitioner initially was questioned by Lombardo. According

to Lombardo, as soon as the petitioner entered the

interrogation room, Lombardo told the petitioner that

there was no question in his mind that the petitioner was

responsible for the victim’s murder. Lombardo testified

that the petitioner did not react to the accusation as

Lombardo had expected, that is, with a strong or loud

objection; instead, the petitioner just sat there passively, shaking his head and quietly saying, ‘‘[n]o

. . . .’’83 Lombardo stated that the petitioner immediately asked him ‘‘if it would be possible for someone

to commit a crime and then not remember it . . . .’’

According to Lombardo, approximately one hour into

the interrogation, the petitioner slumped in his seat,

breathed heavily, and said, ‘‘I killed her.’’ The petitioner

then asked Lombardo whether it was possible ‘‘that he

committed the crime, and then . . . blacked out and

just [did not] remember it.’’ Although Lombardo told
the petitioner that it was possible, he thought the petitioner’s question was ‘‘just another ploy’’ to avoid telling

the truth. According to Lombardo, after he told the

petitioner that a person could commit a crime and not

remember it, the petitioner gave the first of three sworn

statements confessing to the victim’s murder. In it, he

stated: ‘‘On March 8, 1987, I was responsible for [the

victim’s] death and it was an accident. My mind went

blank.’’

After the first statement was signed and notarized,

Lombardo allowed the petitioner to go to the bathroom.

At this point, Lombardo was aware that he did not

have enough evidence to charge the petitioner with any

crime. When the petitionerreturned to the interrogation

room, Lombardo told him that he needed to provide

more details about the crime. According to Lombardo,

the petitioner stated, ‘‘[s]he wouldn’t cooperate with

me so I killed her,’’ but then immediately ‘‘denied that

he had committed the crime and told [Lombardo] that

the only reason . . . he had given [the earlier] statement was because he [thought Lombardo] wouldn’t let

him go to the bathroom unless he [did] . . . .’’ Lombardo then began to put more pressure on the petitioner. For example, he told the petitionerthat a witness

had seen him walking his dog near the victim’s apartment one hour before the fire was reported84 and that

the police had found his fingerprints on the murder

weapon, neither of which was true. According to Lombardo, the petitioner‘‘became quiet and kind of slumped

down in his chair when confronted . . . with that information.’’ Immediately thereafter, the petitioner gave a

second sworn statement, in which he admitted to the

following: ‘‘On March 8, 1987, I went to visit [the victim]

with my wife and son. We left the apartment in the late

afternoon and went home. I left my house sometime

after that to take the dog for a walk. I was at [the

victim’s] apartment with the dog. We were both there

together and the time was right. I probably made a pass

at her and she said no. So I hit her and I strangled her.

If the evidence shows that I was there, and that I killed

her, then I killed her, but I don’t remember being there.

I made a pass at [the victim] because she was a nice

person and I though[t] that I could get somewhere with

her. She was like a grandmotherto me, that I never had.’’

Following this second statement, the petitioner

became visibly despondent. According to Lombardo,

when he pressed him for more details about the crime,

the petitioner stated, ‘‘[i]f I tell you everything, then the

whole town’s going to find out and know that I am a

sex fiend.’’ He also told Lombardo that Martin and their

son were the only family that he had and that, if Martin

found out that he had killed her grandmother, she would

leave him. According to Lombardo, the petitioner stated

that ‘‘he couldn’t bear the thought of losing his family

and that, if his family did leave him, he might as well

be dead.’’ Thereafter, Lombardo left the room to speak
to Morrissey, who had just returned from interviewing

Martin. At this time, Lombardo decided that it would

be best for Morrissey to continue the interrogation,

which he did.

According to Morrissey, his job was ‘‘to get more

information’’ from the petitioner about the murder.

Toward that end, he began the interview by informing

the petitioner that he had just come from speaking to

Martin, that she had been informed of his role in the

victim’s death, and that Martin wanted him to cooperate

with the police. The petitioner again denied any involvement in the murder, stating repeatedly that he must

have ‘‘black[ed] out’’ because he simply had no memory

of the crime. In an effort to ‘‘refresh his memory of

what happened,’’ Morrissey repeatedly led the petitioner through the entire ‘‘sequence of events,’’ a process that, according to Morrissey, took several hours

and considerable coaxing. When they were finished,

Morrissey prepared a written statement for the petitioner to sign. In that statement, the third and final

statement, the petitioner provided a more detailed

account of his involvement in the murder: ‘‘[O]n Sunday

March something I was at [the victim’s] apartment with

my son . . . and my wife [Martin]. We visited from

about [2 until 4] p.m. and then walked home. After being

home [a while] I left to walk the dog. I then walked

back up to [the victim’s] apartment and she invited me

in. We each had a cup of coffee (I think [the victim]

had tea) and I sat on the couch. I recall having my

matches and my smoking pipe in my jacket pocket.

‘‘After my coffee I went into the bathroom (which is

located off the bedroom). When I came out [the victim]

was in the bedroom combing her hair. She was wearing

a pink house coat type of outer wear with no bra. (I

could see her breasts when she bent over). I grabbed

her with my hand around her waist area. When I did

that she pushed me. I threw her on the bed and took

off her underwear because I wanted to have intercourse

with her. I got my penis inside her for a few strokes

and then pulled out and masturbated. I did [ejaculate]

on the bed spread when I was finished. I had already

thrown her underwear on the right side of the bed.

After the sex she said she was going to tell my wife

. . . . I then went to the kitchen and got a steak knife

with a hard plastic brown handle and stabbed [the victim] in the stomach while she was [lying] on the couch.

The rest of the incident I do not recall although I admit

to having strangled her.’’ According to Morrissey, the

petitionerindicated that he strangled the victim by placing both of his hands around her neck.

The petitioner signed his third statement at approximately 12:30 a.m. on July 5, 1989. At that time, Morrissey

and Lombardo asked Brooks, their commanding officer,

to speak to the petitioner because the petitioner continued ‘‘to vacillate, and they wanted to see whether . . .
[Brooks] could get him to [stop] doing that.’’ According

to Brooks, the petitioner ‘‘would give a statement to

[his officers], sign it, and then claim that he was only

. . . giving back information that was given to him,

only saying what he thought [the officers] wanted to

hear . . . .’’ Brooks testified that the petitioner’s

‘‘recanting behavior had continued right to [the] end of

[the interrogation],’’ and that Lombardo and Morrissey

enlisted Brooks to speak to the petitioner because

Brooks and the petitioner had a prior relationship, and

the officers thought that Brooks could get the petitioner

‘‘to perhaps take a stand one way or the other.’’ When

Brooks went into the interrogation room and spoke

with the petitioner, the petitioner continued to vacillate

and appeared extremely agitated. At approximately 1:20

a.m., the petitioner was instructed to go home, and he

did so. The petitioner would later testify that he does

not know why he confessed except that he had to go

to the bathroom, and because he wanted to go home.

The petitioner also testified that Morrissey had told him

that, if he did not cooperate with the police, Martin,

his wife, could be charged with a crime, and their son

would become a ward of the state, accusations that

Morrissey has denied.85

It is difficult to read the officers’ account of the petitioner’s statements in light of the other trial evidence

without experiencing the sinking discomfort that comes

with the realization that an injustice may have occurred.

Indeed, no fair-minded person who is familiar with the

evidence in the present case can read the petitioner’s

statements and feel confident that they represent a true

and accurate account of the victim’s murder by the

person responsible for her death. The first statement—

‘‘I was responsible for [the victim’s] death and it was

an accident’’ and ‘‘[m]y mind went blank’’—is totally

devoid of incriminating detail. The second statement—

‘‘I probably made a pass at her and she said no,’’ and,

‘‘[i]f the evidence shows that I was there, and that I

killed her, then I killed her, but I don’t remember being

there’’—sounds more like the statement of a man who,

having just been told by someone he trusts that there

is incontrovertible proof that he sexually assaulted and

murdered his wife’s grandmother, is trying to understand how he could have no memory of such a horrific

event. Although the third statement is more specific,

most of the details bear little resemblance to the actual

crime scene evidence; see footnote 12 of this opinion;

and those that do, in particular, the facts that presumably only the killer would know, have the ring of someone confirming information (‘‘I did [ejaculate] on the

bed spread when I was finished’’ and ‘‘I had already

thrown her underwear on the right side of the bed’’)

rather than conveying it.86

The respondent raises several arguments why there

would be no reasonable probability of a different result

at a new trial notwithstanding the testimony of Martin
and the petitioner’s burn time experts. We do not find

the respondent’s arguments persuasive. For example,

the respondent argues that a jury would be unlikely to

credit Martin’s testimony because she did not inform

the police, until she was questioned by Morrissey two

years after the murder, that the petitioner had walked

their dog on the day of the murder. The record reveals,

however, that the petitioner did not become a suspect

in the victim’s murder until two years after the murder,

at which time Martin was interviewed for the first time

about the petitioner’s whereabouts on the day in question. Indeed, the audio recording of Martin’s interview

reveals, contrary to the respondent’s contentions, that

a jury readily could conclude that, until that moment,

it had never crossed Martin’s mind that her husband

had any role in the victim’s murder.87

The respondent also refers to certain facts that the

state relied on at the petitioner’s criminal trial, most of

which are set forth in this court’s decision in State v.

Lapointe, supra, 237 Conn. 696–702, in which we

rejected the petitioner’s claims on direct appeal, to support the contention that there is no reasonable probability of a differentresult even if a jury were to considerthe

testimony of DeHaan, Kelder and Martin.88 For example,

the respondent argues that, ‘‘before any information

regarding a possible sexual assault became known to

the police or the public, the [petitioner] stated in a

conversation with . . . a friend of the Lapointe family

. . . that ‘it was a shame they killed an old lady, but

they didn’t have to rape her, too.’ ’’ Id., 699. At trial, the

petitioner testified that, on the night of the murder, he

overheard someone at the hospital discussing the fact

that the victim had been sexually assaulted. This is a

perfectly plausible explanation as to how he knew about

the sexual assault because Marvin, a Manchester volunteer fire marshal, testified that he also had heard hospital personnel speaking openly about the sexual assault.

In addition, Elizabeth Martin, the victim’s daughter-inlaw, testified that, on the morning after the murder,

she called the Manchester Police Department and was

informed by Brooks that the victim had been sexually

assaulted. Elizabeth Martin stated that she immediately

conveyed this information to Karen Martin and to her

brother with instructions not to tell their father, the

victim’s son, because she was afraid the news would

make him emotionally distraught. Finally, within days

of the victim’s murder, there was speculation in the

newspaper that the victim had been sexually assaulted

and that Frederick Merrill, a recently released convict

who had committed a similar home invasion and sexual

assault of a fifty-five year old woman just three days

after the victim’s murder and three miles from the victim’s apartment, also had sexually assaulted and killed

the victim.89

The respondent further argues that DeHaan’s and

Kelder’s testimony would not have made a difference
at the petitioner’s criminal trial because it is duplicative

of the testimony of Marvin, who, according to the

respondent, ‘‘assisted [the state fire marshal] in the

investigation, and offered his own burn time estimate

for the defense . . . .’’ Marvin’s estimate, the respondent maintains, ‘‘differed in no meaningful way’’ from

the estimates provided by DeHaan and Kelder. In reliance on these assertions, the respondent contends that

Marvin’s testimony, coupled with the petitioner’s testimony at trial that he was at home with his family

between the hours of 7 and 8 p.m., compels the conclusion that the jury considered and rejected an alibi

defense based on the probable burn time of the fire.

This claim is wholly without merit. Marvin was not a

professional firefighter much less a forensic fire expert;

he was a volunteer firefighter who was called by the

petitioner to testify that, on the night of the murder,

he overheard hospital personnel discussing the fact that

the victim had been sexually assaulted. It is true that,

when asked on direct examination how long it might

have taken for the fire to reach its maximum temperature, Marvin estimated that the fire started about fifteen

to twenty minutes prior to reaching its peak temperature at around 8:10 p.m. Marvin qualified his answer,

however, by stating that it was ‘‘extremely rough’’ and

‘‘real hypothetical,’’ undoubtedly because he was not a

professional fire investigator. Indeed, on cross-examination, Marvin admitted that he really had ‘‘no idea

when the fire was set’’ and that his estimate of the fire’s

maximum temperature was just ‘‘a guess . . . .’’ More

important, however, the petitioner did not rely on Marvin’s estimate to support an alibi defense based on the

fire’s burn time, or for any other purpose. In fact, to

the extent that the petitioner sought to establish that

he could not have murdered the victim because he was

at home when the murder occurred, the petitioner never

contended that his claim was supported by any burn

time evidence. In light of the foregoing, it strains credulity to believe that the jury—entirely on its own, without

any argument by the petitioner’s trial counsel or guidance from the trial court—would have considered an

alibi defense based on Marvin’s rough and inexpert

testimony concerning the time that it took for the fire

to reach its maximum temperature.

The respondent also relies on the testimony of Jean

Strimike, the petitioner’s former neighbor, who testified

that, after the petitioner became president of their four

member condominium association, he memorized all

of the association’s complex rules and bylaws, and was

a stickler about enforcing the rules. Strimike stated that

she and the petitioner got into a heated dispute over

nonconforming flowers that she had planted in front

of their building, and, after she refused to remove them,

the petitioner stomped them into the ground. The most

we can say about this evidence, which very much typifies the kind and quality of evidence that the state pre-
sented at the petitioner’s criminal trial,90 is that itreveals

that the petitioner is someone who could behave poorly

on occasion. It clearly does not give rise to a reasonable

inference that the petitioner was capable of cold

blooded murder.91 Of course, the state will be free to

seek to introduce this evidence at a new trial and, to

the extent it is admissible, to rely on whatever probative

value it may have.

IV

CONCLUSION

The petitioner was forty-two years old when he allegedly committed one of the most brutal crimes in our

state’s history—the rape, torture and murder of a

defenseless eighty-eight year old woman, a person who,

by all accounts, was like a grandmother to him.

Although there is abundant evidence in the record concerning the petitioner’s simplemindedness, his peculiarities and his very rigid way of thinking, one searches the

record in vain for evidence that he ever was physically

violent, that he suffered from a mood disorder, psychosis, drug addiction or anything else that could explain

why, after visiting the victim every Sunday for years,

he suddenly went back to her apartment on the Sunday

in question and brutally murdered her, without his wife

noticing eitherthat he had left their house or any change

in his demeanor or appearance upon his return. Furthermore, at the petitioner’s criminal trial, the state was

not required to commit to any particular time frame for

the murder, arguing only that it occurred sometime

between 5:45 p.m., when the victim was last seen alive

by Howard, her daughter, and 8:05 p.m., when she failed

to answer Howard’s telephone calls. If, however, the

original jury were to have heard and credited DeHaan’s

and Kelder’s testimony that the fire was set between

7:30 and 8:05 p.m., and if that jury also were to have

heard and credited Martin’s testimony that the petitioner was at home with her watching television at that

time, there is not just a reasonable probability of a

different result, there is a near certainty of one. And,

as we have explained, there simply is no reason why the

jury reasonably could not have credited that testimony.

The petitioner therefore has established, under Strickland, that his first habeas counsel’s representation of

him was constitutionally deficient due to counsel’s failure to pursue a Brady claim founded on the state’s

suppression of the Ludlow note because that nondisclosure deprived the petitioner of evidence establishing

a complete and potentially compelling alibi, thereby

gravely undermining the reliability of the verdict against

him. Because the record demonstrates convincingly

that the petitioner is burdened by an unreliable conviction, he is entitled to a new criminal trial.

The judgment of the Appellate Court is affirmed.

In this opinion ROGERS, C. J., and EVELEIGH and
McDONALD, Js., concurred.

* March 31, 2015, the date that this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1 The petitioner was convicted of capital felony, arson murder, felony

murder, murder, arson in the first degree, assault in the first degree, sexual

assault in the first degree, sexual assault in the third degree, and kidnapping

in the first degree. See State v. Lapointe, 237 Conn. 694, 695, 678 A.2d 942,

cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996). His

convictions of arson murder, felony murder, murder, sexual assault in the

first degree, and sexual assault in the third degree were combined with

his capital felony conviction for sentencing purposes ‘‘to comport with

constitutional double jeopardy protections.’’ Id., 695 n.1.

2 Because the state sought the death penalty in connection with the capital

felony charge, a penalty phase hearing was conducted in accordance with

General Statutes (Rev. to 1987) § 53a-46a. The jury found the existence of

a mitigating factor, and, pursuant to § 53a-46a (f), the petitioner received a

sentence of life imprisonment without the possibility of release.

3 To establish that a new trial is required because of a Brady violation,

a defendant must establish, first, that the state failed to disclose evidence,

second, that that evidence is exculpatory, that is, it is favorable to the

defendant, and, third, that the evidence is material. See, e.g., Adams v.

Commissioner of Correction, 309 Conn. 359, 369, 71 A.3d 512 (2013). To

establish materiality, the defendant must demonstrate that there is a reasonable probability that, if the jury had considered the evidence, the result of

the trial would have been different. See id., 370. In this context, a reasonable

probability is a probability sufficient to undermine confidence in the outcome of the original trial. Id., 370–71. Ultimately, materiality is a mixed

question of law and fact that is subject to this court’s plenary review. E.g.,

State v. Ortiz, 280 Conn. 686, 720, 911 A.2d 1055 (2006). We discuss these

requirements more fully in part II of this opinion.

4 As we discuss more fully hereinafter, under Strickland, a defendant can

prevail on a claim of ineffective assistance of counsel only if he can establish

both that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defendant

because there is a reasonable probability that, but for counsel’s substandard

performance, the result of the proceeding would have been different. See,

e.g., Johnson v. Commissioner of Correction, 288 Conn. 53, 63, 951 A.2d

520 (2008). A reasonable probability is a probability sufficient to undermine

confidence in the outcome. See, e.g., Adams v. Commissioner of Correction,

309 Conn. 359, 370–71, 71 A.3d 512 (2013).

5 The Appellate Court affirmed the judgment of the third habeas court in

part, upholding that court’s denial of the petitioner’s claim of actual innocence. See Lapointe v. Commissioner of Correction, supra, 138 Conn. App.

468, 480. The Appellate Court also dismissed in part the petitioner’s appeal.

See id., 480.

6 The procedural background and the vast majority of the historical facts

that follow are not disputed. To the extent that additional facts are relevant

to our disposition of the parties’ claims, we identify them in part III of

this opinion.

7 Dandy-Walker syndrome is a congenital brain malformation known to

cause poor motor skills and, in most cases, cognitive impairment. See generally Lapointe v. Warden, Superior Court, judicial district of Hartford, Docket

No. CV-97-0571161 (September 6, 2000) (Freed, J.).

8 A secretor is a person who secretes blood type antigens into his bodily

fluids. See Stedman’s Medical Dictionary (28th Ed. 2006) p. 1739.

9 Evidence adduced at the petitioner’s criminal trial established that 41

percent of the population have type A blood and that 80 percent of the

population are secretors.

10 Postconviction DNA testing revealed, however, that the pubic hair contained mitochondrial DNA that did not match that of the victim or the

petitioner and that the gloves also contained DNA that did not match that

of the victim or the petitioner.

11 Originally, Ludlow was the lead investigator in the case.

12 For example, the petitioner stated that he had stabbed the victim once

in the stomach while she was lying on the couch; in fact, the killer stabbed

the victim eleven times while she lay on her bed, and all but one of the stab

wounds were to the victim’s back. Although the petitioner told Morrissey

that he had strangled the victim manually, the evidence indicated that she

had been asphyxiated by pressure to the right side of her neck from a

blunt object. The petitioner also stated that the victim was wearing a pink
nightgown that exposed her breasts, but no such article of clothing was

recovered from the crime scene. Rather, the evidence indicated that, at the

time of the attack, the victim was wearing pants, a blouse and a blue sweater,

which the perpetrator forcibly removed. In addition, in the affidavit in support of the warrant for the petitioner’s arrest, Lombardo noted that the

petitioner also ‘‘was inconsistent when talking about the ligatures that were

tied around [the victim’s] neck and arms.’’ According to Lombardo, the

petitioner ‘‘first said that he had bound [the victim] with rope that he had

brought . . . from home. The evidence showed that [the victim] had been

bound with articles of clothing from her closet. [The] [p]etitioner did, however, recant his statement about the rope later in the interview.’’

13 These details were: (1) a semen stain was recovered from the victim’s

bedspread; (2) the victim’s underwear had been thrown to the right side of

the bed; and (3) the victim was stabbed with a steak knife with a hard

plastic handle.

14 The state argued at trial that the petitioner conducted himself in that

manner because he was stalling for time before summoning help.

15 In support of his motion to suppress the incriminating statements, the

petitioner claimed, first, that he never was advised of his rights under

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),

even though he was in police custody when he made the statements and,

second, that the statements were involuntary because they were the product

of police coercion. See Lapointe v. Commissioner of Correction, supra, 237

Conn. 702–703. The trial court found that the petitioner was not in custody

when he was questioned, and, consequently, Miranda warnings were not

required. Id., 703. The trial court further found that, in fact, the petitioner

had been advised of his rights in accordance with Miranda and that he

knowingly and intentionally waived those rights. Id. The trial court also

found that the petitioner’s statements were made voluntarily and were not

the product of police pressure. Id.

16 This court agreed with the state that the trial court properly had determined that the petitioner was not in custody when he made the statements

and that the statements were made voluntarily. Lapointe v. Commissioner

of Correction, supra, 237 Conn. 703.

17 The petitioner also had alleged: ‘‘(1) actual innocence premised on [his]

inability . . . physically and intellectually to carry out and to conceal the

crimes [of] which he had been convicted; (2) prosecutorial impropriety

[stemming from the suppression of] a notebook that contained Lombardo’s

notes from the homicide investigation; (3) discrimination by the state on the

basis of the petitioner’s physical and mental disabilities; [and] (4) ineffective

assistance of trial counsel . . . for their failure, inter alia, to procure the

Lombardo notebook, to retain appropriate experts for the defense at trial

and to argue that men’s gloves and certain hairs of unknown origin that

had been found at the crime scene demonstrated that the petitioner was

innocent of the charged crimes . . . .’’ Lapointe v. Commissioner of Correction, supra, 138 Conn. App. 459. The petitioner further alleged ineffective

assistance of trial counsel on the basis of their failure to present a thirdparty culpability defense predicated on the testimony of witnesses who, on

the night of the murder, saw a man, bearing no resemblance to the petitioner,

flee from the crime scene area in a disheveled condition at approximately

8 p.m., shortly before the fire was reported.

18 In accordance with this testimony, the petitioner claimed in his second

habeas petition that the Ludlow note was exculpatory both for the substance

of the information that it contained about the minimum possible burn time

and because that information would have prompted the petitioner’s trial

counsel to consult a burn time expert and to employ a different trial strategy.

According to the petitioner, this strategy would have prompted trial counsel

to call Martin as a witness and to focus on an alibi defense predicated on

her testimony and the testimony of a burn time expert as to how long the

fire burned.

19 The Appellate Court viewed the evidence in the light most favorable to

the petitioner because the second habeas court had dismissed the habeas

petition inasmuch as the petitioner ‘‘failed to establish the prima facie elements of his claims.’’ Lapointe v. Commissioner of Correction, supra, 113

Conn. App. 388.

20 It would appear that, under the Appellate Court’s assessment of the

evidence, Martin’s testimony alone was exculpatory because, considering

that testimony most favorably to the petitioner, she placed him at home

during the entire period within which the victim’s murder could have been

committed. It also appears, however, that, in the view of the Appellate Court,

the minimum burn time reflected in the Ludlow note buttressed that alibi
evidence. See Lapointe v. Commissioner of Correction, supra, 113 Conn.

App. 392.

We note, in addition, that the Appellate Court also agreed with the petitioner that the second habeas court improperly concluded, albeit without

explanation, that the petitioner had not made a prima facie showing that

first habeas counsel’s representation of the petitioner was constitutionally

deficient on the basis of his failure to allege ineffective assistance of the

petitioner’s trial counsel as a result of their failure to utilize certain evidence

to prove the unreliability of the petitioner’s confessions. See id., 402. In

particular, the petitioner had maintained in his second habeas petition that

first habeas counsel’s representation of the petitioner was ineffective in that

he failed to allege that, in closing argument, trial counsel improperly failed

(1) to argue that the petitioner’s statement describing the clothes that the

victim was wearing at the time of the attack did not match the crime scene

evidence, (2) to argue that a pubic hair recovered from the victim’s sweater,

which presumably was left by the actual killer, could not be linked to the

petitioner, (3) to argue that a pair of men’s gloves recovered from the crime

scene, which had no connection to the petitioner or the victim, was likely

left by the actual killer, (4) to emphasize that the petitioner’s statement that

he manually strangled the victim was inconsistent with the actual method

of strangulation, namely, asphyxiation by pressure to the right side of the

victim’s neck with a blunt object, and (5) to emphasize that the petitioner’s

statement that he had stabbed the victim on the couch did not correlate to

the physical evidence indicating that the victim had been stabbed on the bed.

Id., 399–401. The AppellateCourt concluded, contrary to the determination of

the second habeas court, that these claims, taken together, were sufficient

to establish a prima facie case of ineffective assistance of trial counsel, and,

therefore, the court remanded the case to the habeas court for further

proceedings on that claim, as well. See id., 402, 404.

21 The third habeas court permitted the petitioner to amend his second

habeas petition to include a claim of actual innocence based on newly

discovered DNA evidence. ‘‘The [resulting] operative three count complaint

set forth the following three claims: (1) [First habeas counsel] provided

ineffective assistance . . . by failing to raise as an issue the state’s suppression of its arson expert’s opinion that the burn time of the fire set in

the victim’s apartment was between ‘30–40 mins. Poss.’; (2) [First habeas

counsel] provided ineffective assistance . . . by failing to prove that Culligan and Cosgrove, the petitioner’s trial counsel, provided ineffective assistance . . . by failing to utilize available evidence to demonstrate the factual

unreliability of the petitioner’s inculpatory statements to the police; and (3)

the petitioner was actually innocent of the crimes [of] which he was convicted as evidenced by DNA testing on gloves and a pubic hair collected at

the crime scene.’’ Lapointe v. Commissioner of Correction, supra, 138 Conn.

App. 462.

22 The petitioner also called Martin as a witness at the third habeas trial.

Although she had considerable difficulty recalling with any degree of accuracy events that had occurred on the day of the victim’s murder some

twenty-three years earlier, she stated in no uncertain terms that all of the

statements that she had made about the matter during that time period,

including her 1987 statement immediately following the murder, her 1989

tape-recorded statement to Morrissey, and her 1992 suppression hearing

testimony, were completely truthful. Those statements make clear that, on

the night of the murder, the petitioner was at home with Martin and their son

from 7 p.m. until approximately 8 p.m., when Howard asked the petitioner to

go to the victim’s home to check on the victim.

23 All references to temperature in this opinion are to the Fahrenheit scale.

24 As we explain more fully in part III A of this opinion, the record reveals

that, contrary to Corry’s assertions, DeHaan did not testify either that the

fire was a high energy fire or that the floor temperature inside the victim’s

apartment was 400 degrees when firefighters entered.

25 The third habeas court described the Ludlow note as ‘‘potentially’’ exculpatory in light of the Appellate Court’s conclusion that, contrary to the

determination of the second habeas court, the petitioner had indeed made

out a prima facie case that the note was exculpatory for purposes of Brady.

See Lapointe v. Commissioner of Correction, supra, 113 Conn. App. 392.

Nevertheless, in light of the Appellate Court’s conclusion, it appears that

the respondent was entitled, on remand to the third habeas court, to present

evidence demonstrating why, in his view, the note was not exculpatory,

even though the petitioner established a prima facie basis for his claim.

See, e.g., Adams v. Commissioner of Correction, 309 Conn. 359, 369–70, 71

A.3d 512 (2013) (to prove Brady violation, defendant must establish that

state’s withholding of information was both exculpatory and material). The
third habeas court observed, however, that the Appellate Court ‘‘concluded

that the petitioner has established the exculpatory nature of the Ludlow

note and [therefore] satisfied the first prong ofthe Brady analysis.’’Considering itself bound by this determination, the third habeas court treated the

Ludlow note as exculpatory.

With respect to the issue of whether the state improperly had failed to

disclose the Ludlow note, the third habeas court observed that there was

‘‘no indication or evidence that the . . . note was wilfully suppressed’’ by

the state. The third habeas court did not decide whether the note nevertheless had been suppressed inadvertently by the state; instead, for purposes

of its analysis, the third habeas court assumed, without deciding, that the

state unwittingly had failed to disclose it to the petitioner priorto his criminal

trial. The respondent has not raised either ground in its appeal from the

Appellate Court’s judgment.

26 As we explain more fully in part III A of this opinion, contrary to the

third habeas court’s finding, Corry did not dispute DeHaan’s estimate of the

peak temperature.

27 As we explain more fully in part III A of this opinion, Corry did not

dispute Kelder’s testimony either with respect to the fire’s energy level or

with respect to the fire’s peak temperature.

28 See footnote 3 of this opinion.

29 See footnote 4 of this opinion.

30 The third habeas court also rejected the petitioner’s claim of actual

innocence based on DNA testing of the gloves and the pubic hair recovered

from the crime scene, as well as the claim that first habeas counsel’s representation of the petitioner was constitutionally deficient on the basis of his

failure to demonstrate ineffective assistance of trial counsel as a result of

their failure to utilize available evidence to demonstrate the unreliability of

his confessions. As to the first claim, ‘‘[a]lthough the [third habeas] court

found that the petitioner had presented newly discovered evidence with

respect to DNA analysis, it concluded that the results were unreliable,

particularly as to the pair of gloves, because of contaminated or potentially

contaminated DNAsamples. With respect to the pubic hair, the [third habeas]

court stated that it could not be determined with any degree of certainty

how the hair came to rest on the [victim’s] blue sweater. Although the DNA

analysis excluded the petitioner as a donor, the [third habeas] courtreasoned

that the hair could have come from the perpetrator or it could have been

transferred to the crime scene in a manner unassociated with the attack on

the victim.’’ Lapointe v. Commissioner of Correction, supra, 138 Conn. App.

463. With respect to the second claim, the third habeas court concluded

that, although trial counsel could have done more to highlight the various

ways in which the petitioner’s statements were inconsistent with the evidence, those discrepancies were otherwise readily discernible to the jury,

and, consequently, the petitioner was not prejudiced by trial counsel’s failure

to emphasize the inconsistencies.

31 ‘‘The record contains testimony that it took the petitioner approximately

ten to fifteen minutes to walk from his home to the victim’s apartment.

There also is testimony that because the petitioner has Dandy-Walker [s]yndrome, he is slow and unsteady on his feet.’’ Lapointe v. Commissioner of

Correction, supra, 138 Conn. App. 477 n.19. Thus, it would have taken the

petitioner at least twenty minutes to walk to and from the victim’s apartment,

and it likely would have taken him longer if he had his small dog with him,

as he asserted in his statements to the police.

32 In support of its conclusion, the Appellate Court also stated: ‘‘The petitioner exercised his sixth amendment right to a trial by an impartial jury.

If the Ludlow note had been disclosed to trial counsel, however, it would

have been the responsibility of the jury and not the court to weigh the

credibility of the arson experts. Whether the burn time evidence, which was

so critical in buttressing [the petitioner’s] alibi defense, raised a reasonable

doubt as to the petitioner’s guilt would best be a determination left to the

jury and not a habeas court.’’ Lapointe v. Commissioner of Correction,

supra, 138 Conn. App. 476–77 n.17.

33 We note that, on appeal to the Appellate Court, the petitioner also

claimed that the third habeas court improperly had rejected his actual

innocence claim and his claim that first habeas counsel’s representation

was constitutionally deficient on the basis of his failure to establish that

trial counsel had rendered ineffective assistance by not utilizing the available

evidence—in particular, the many inaccuracies in the petitioner’s statements

about the how the crime was committed—to demonstrate that his admissions were unreliable. See Lapointe v. Commissioner of Correction, supra,

138 Conn. App. 464, 468. The Appellate Court rejected the first claim; id.,
468; and declined to reach the second claim in light of its determination

that the petitioner was entitled to a new trial due to the state’s suppression

of the Ludlow note in violation of Brady and first habeas counsel’s deficient

performance under Strickland owing to his failure to pursue that claim

competently. See id., 479–80 n.22.

In addition, the respondent claimed in the Appellate Court that the state

had not suppressed the Ludlow note. Id., 472 n.16. With respect to this issue,

the Appellate Court acknowledged that the third habeas court had assumed

without deciding that the note was inadvertently suppressed by the state;

id., 472; and then stated: ‘‘On appeal, the respondent argues that the Ludlow

note was not suppressed because it was preliminary and speculative, and

the petitioner’s trial counsel knew of its essential facts. The [third] habeas

court did not address those claims. In its memorandum of decision, the

[third habeas] court stated: ‘There is no indication or evidence that the

Ludlow note was [wilfully] suppressed, so this court will assume, without

deciding, solely for purposes of addressing the petitioner’s claim, that the

Ludlow note was inadvertently suppressed.’ . . . Without any further analysis by the [third habeas] court, the record is inadequate . . . to address

this argument of the respondent.’’ Id., 472 n.16. Because, however, the

respondent had prevailed in the third habeas court, he had no reason to

seek a determination with respect to his claim that the Ludlow note had

not been suppressed. Consequently, the record was inadequate for review

of the issue through no fault of the respondent, and the Appellate Court

therefore should have remanded the case to the habeas court for a resolution

of the issue. On appeal to this court, however, the respondent has not

challenged the decision of the Appellate Court with respect to this issue,

and, therefore, the respondent has waived any such claim. We do note,

however, that, even if the respondent had preserved the issue, and sought

a remand to resolve it, there is a substantial likelihood that he would not

prevail, albeit for an entirely differentreason than that given by the Appellate

Court. Specifically, if, contrary to the assumption of the third habeas court,

the Ludlow note had not been suppressed by the state, the petitioner likely

would be able to establish in his habeas proceeding, first, that first habeas

counsel should have recognized the exculpatory nature of the note and,

second, that his failure to pursue a claim predicated on the note constituted

ineffective assistance of counsel, thereby entitling the petitioner to a new

trial, which the Appellate Court ordered in any event.

Finally, the respondent raised no claim in the Appellate Court with respect

to issue of whether the Ludlow note was exculpatory. Consequently, the

respondent has abandoned any such claim.

34 The state’s ‘‘obligations under Brady to disclose such information [do]

not depend on whether the information to be disclosed is admissible as

evidence in its present form. The objectives of fairness to the defendant,

as well as the legal system’s objective of convicting the guilty rather than the

innocent, require that the prosecution make the defense aware of material

information potentially leading to admissible evidence favorable to the

defense.’’ United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007).

35 Such error occurs ‘‘when there is no evidence in the record to support

[the court’s finding of fact],’’ or when, although there is evidence to support

the factual finding, the reviewing court, upon consideration of the entire

record, ‘‘is left with a definite and firm conviction that a mistake has been

committed.’’ (Internal quotation marks omitted.) State v. Benjamin, 299

Conn. 223, 236, 9 A.3d 338 (2010).

36 With respect to the materiality of withheld evidence, we have stated

that we will give weight to the determination of the trial judge deciding that

issue, even though our review is plenary, if that same judge also presided

over the defendant’s criminal trial. See State v. Ortiz, supra, 280 Conn.

721–22. We do so because, in that circumstance, the judge had the opportunity to observe the trial proceedings firsthand and, as a consequence, is

well positioned to assess the strength of the original trial evidence in relation

to the evidence withheld by the state. See id., 721. In the present case,

however, no such respect is due because the third habeas court, Nazzaro,

J., did not preside over the petitioner’s criminal trial.

37 As we have explained; see footnote 33 of this opinion; the respondent

has abandoned any claim that he may have had with respect to whether,

first, the Ludlow note was, in fact, exculpatory and, second, the state did,

in fact, suppress the note.

38 Thus, we do not ask whether the jury conceivably could have credited

the expert testimony. The standard, rather, is whether there is a reasonable

probability of the jury having credited the expert testimony, thereby giving

rise to a probability of a different verdict sufficient to undermine confidence

in the outcome.
39 We note that, on several occasions, the third habeas court cast its

materiality analysis in terms of whether the outcome of the petitioner’s

criminal trial reasonably would have been different if he had had the benefit

of the expert burn time testimony for purposes of that trial. See Lapointe

v. Commissioner of Correction, Superior Court, judicial district of Tolland,

Docket No. CV-02-0818542-S (April 15, 2011) (concluding that petitioner had

failed to show ‘‘how [the expert burn time testimony] reasonably would

have led the jury to conclude [that] there was reasonable doubt in light of

all the evidence presented to the jury’’ [emphasis added]); see also id. (‘‘[t]he

court is unable to conclude that [first habeas counsel’s] failure to have an

arson/fire expert testify in the first habeas [proceeding] would have resulted

in anything different [from the present] habeas [case]: a prototypical battle

of the experts resulting in diverging opinions’’ [emphasis added]). The third

habeas court did correctly state, however, that, under Brady, the petitioner

must establish that the withheld evidence ‘‘could reasonably be taken to

put the whole case in such a different light as to undermine confidence in

the verdict,’’ and that, ‘‘if the [withheld] evidence creates a reasonable doubt

[regarding the petitioner’s guilt] that does not otherwise exist, constitutional

error has been committed.’’ (Internal quotation marks omitted.) For purposes of this appeal, we may presume that the third habeas court applied

the proper legal standard because, as we explain more fully hereinafter,

due to the nature of the testimony that is the subject of the petitioner’s

Brady claim, we review that testimony de novo.

40 When the issue of materiality gives rise to a disputed factual issue the

resolution of which requires credibility findings by the trial court, we will

give appropriate deference to those findings if they are supported by the

record. We emphasize, however, that, because the predictive judgment of

whether a jury reasonably might credit the Brady material, such that the

jury reasonably might find the defendant not guilty, gives rise to a question

of law, our deference to the trial court’s fact-finding is always tempered by

an independent and searching examination of the record.

41 In Behn, which also involved a petition for a new trial based on newly

discovered scientific evidence; see State v. Behn, supra, 375 N.J. Super.

413–14; the Appellate Division of the New Jersey Superior Court similarly

declined to deferto the trial court’s finding that the expert scientific evidence

did not warrant a new trial. See id., 431–33. In that case, the trial court

denied the new trial petition without a hearing in light of its determination

that the newly discovered evidence, which was presented to that court in

the form of comprehensive affidavits from the expert witnesses for the

defense, was not ‘‘of the sort that would probably change the jury’s verdict

if a new trial were granted.’’ (Internal quotation marks omitted.) Id., 432.

The Appellate Division reversed the judgment of the trial court and ordered

that the defendant, Chael S. Behn, be granted a new trial; id., 434; explaining

that it was not necessary to remand the case for an evidentiary hearing, at

which the trial court could hear live testimony from the expert witnesses,

because the affidavits provided a sufficient basis for relief. See id. The

Appellate Division observed that the trial court, ‘‘not having presided over

[Behn’s criminal] trial, was in no better position to [perform the requisite]

analysis than [the Appellate Division]. . . . [T]he [materiality question] presents a mixed question of law and fact, requiring that [the Appellate Division]

give deference to supported factual findings of the trial court . . . but

review de novo the [trial] court’s application of any legal rules to such

factual findings. . . . In this instance, the [trial] judge’s conclusion on the

[materiality] prong [does] not involve any underlying factual findings but

only a legal conclusion, [namely] whether the newly discovered evidence

probably would have affected the jury’s verdict. As such, [the Appellate

Division] exercise[s] de novo review.’’ (Citations omitted; internal quotation

marks omitted.) Id., 432–33. In granting a new trial without remanding the

case for an evidentiary hearing on the reliability of the expert testimony,

the Appellate Division necessarily concluded that the persuasive force of

the proffered expert testimony was sufficient to warrant a new trial without

any finding by the trial court as to the personal credibility of the experts.

42 Our conclusion in this regard is limited to the kind of fact-finding that

is implicated in the Brady context. In cases involving claims under Brady,

the function of the habeas court is to determine whether the evidence

withheld by the state is sufficiently credible that a jury reasonably could

credit it and, if so, whether the evidence also is sufficiently pertinent to an

issue in the case that it reasonably could lead to a different result. This

predictive evaluation of the evidence is different from the ordinary case, in

which the fact finderis responsible forthe ultimate assessment of credibility.
Thus, as the Pennsylvania Supreme Court recently explained, ‘‘[a]ssessing

credibility for purposes of [Brady] prejudice is not necessarily the same

thing as assessing credibility at a trial.’’ Commonwealth v. Johnson, 600 Pa.

329, 359, 966 A.2d 523 (2009). After observing that its research had revealed

no case that ‘‘specifically sets forth a standard for credibility determinations’’

in that context, the court in Johnson explained that ‘‘[l]ogically, however,

credibility assessments [for purposes of Brady] are not absolutes, but must

be made with an eye to the governing standard of a ‘reasonable probability’

that the outcome of the trial would have been different.’’ Id. Because, in

addressing a claim under Brady, a habeas court’s credibility determination

is not an ‘‘absolute’’ finding, as the factual findings of the ultimate finder

of fact are, but merely is a threshold evidentiary assessment required for

the purpose of determining whether the ultimate finder of fact reasonably

could credit the evidence, the principle that reviewing courts typically defer

to credibility findings in the Brady context has its sole basis in the fact that

the habeas court is ordinarily in a better position to judge credibility, and

is not based on the general prohibition against appellate fact-finding. Consequently, when this court is in as good a position as the habeas court to assess

credibility for the purpose of reviewing a claim under Brady, reviewing the

habeas court’s credibility assessment de novo does not place this court in

the improper role of finding ultimate facts but merely allows this court to

carry out its proper role of determining the legal question of materiality

under Brady. Indeed, because we ultimately must decide whether the state

violated the petitioner’s due process rights by withholding exculpatory evidence, and because the superior position of the third habeas court to view

firsthand the testimony of the parties’ experts had nothing to do with its

credibility findings on that issue, we would be abdicating our responsibility

with respect to the issue of materiality if we did not review those findings

de novo.

43 In addition, as this court recently explained in clarifying the standard

of review for Brady claims, the issue of materiality is subject to plenary

appellate review, but deference is to be afforded the trial court’s findings

with respect to the ‘‘underlying historical facts . . . .’’ State v. Ortiz, supra,

280Conn. 720. The present case, however, does notrequire any such findings,

and the third habeas court made none. Moreover, the third habeas court’s

probabilistic assessment as to whether a jury reasonably might credit the

exculpatory testimony of the petitioner’s experts was based solely on the

court’s perception of the strength of those opinions and not on anything

having to do with the experts’ experience, qualifications, character, veracity

or demeanor during their testimony.

44 In support of this contention, the respondent claims that the Appellate

Court improperly (1) failed to defer to the credibility findings of the third

habeas court, (2) failed to consider the petitioner’s expert testimony ‘‘in the

context of the entirety of the evidence of record,’’ in particular, the evidence

adduced at the petitioner’s criminal trial, and (3) applied an incorrect test

with respect to the materiality of the petitioner’s expert testimony. We reject

the respondent’s first claim because, as we have explained; see part II B of

this opinion; see also part III B 2 of this opinion; under the circumstances

presented, the Appellate Court properly conducted a de novo review of the

third habeas court’s credibility findings. We reject the respondent’s second

claim for the reasons set forth in part III C of this opinion.

We also reject the respondent’s third claim, which is predicated on the

assertion that the Appellate Court, in determining that the petitioner’s expert

testimony satisfied the Brady materiality test, ‘‘improperly based [its decision on] that which it independently deemed to be conceivable, not [on]

that which was reasonably probable in light of the [third] habeas court’s

finding regarding credibility and the entirety of the evidence of record.’’ In

support of this argument, the respondent relies on the statement of the

Appellate Court that the testimony of the petitioner’s experts, ‘‘if believed

by the jury, could have resulted in the jury’s finding that it was temporally

impossible for the petitioner to have committed the crimes [of] which he

was convicted.’’ Lapointe v. Commissioner of Correction, supra, 138 Conn.

App. 479. According to the respondent, this language indicates ‘‘that the

Appellate Court only paid lip service to Brady’s ‘reasonable probability’

standard, while, in actuality . . . it reached its own materiality determination speculating on the basis of what ‘could have’ happened ‘if’ certain

evidence had been believed.’’ We do not agree that the Appellate Court

resorted to speculation and conjecture in deciding the issue of materiality.

The Appellate Court expressly stated that a Brady violation may be established only ‘‘by showing that the favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine confidence in the verdict. . . . [E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’’ (Citation

omitted; emphasis added; internal quotation marks omitted.) Lapointe v.

Commissioner of Correction, supra, 138 Conn. App. 476. We have no doubt

thattheAppellateCourt, having recited the correct standard for materiality—

one that requires a reasonable likelihood that the result of the original trial

would have been different—also applied that standard. Indeed, we cannot

conceive how the Appellate Court possibly could have concluded, as it did,

that the unavailability of the expert burn time testimony ‘‘affected the overall

fairness of the trial and was so unfair as to undermine [its] confidence in

the jury’s verdict’’; id., 478–79; if it had determined only that that testimony

provided a remote or speculative possibility of a different result. As the

respondent himself acknowledges, ‘‘[i]t is well established that [m]ere conjecture and speculation are not enough to support a showing of prejudice’’

in this context. (Internal quotation marks omitted.) Sinchak v. Commissioner of Correction, 126 Conn. App. 670, 678, 14 A.3d 348, cert. denied,

301 Conn. 901, 17 A.3d 1045 (2011). Therefore, we review the Appellate

Court’s use of the term ‘‘if’’ as properly reflecting its engagement in a

probabilistic assessment of the effect of the Brady material on the jury’s

assessment of the evidence. Accordingly, there is no merit to the respondent’s contention that the Appellate Court relied on an improper test to

determine materiality.

45 Specifically, DeHaan testified that ‘‘the fire never got much more than—

well, it was in the order of 250 to 350 kilowatts at its maximum. . . . In

plain language . . . [that] would probably be about the same as an average

fireplace fire.’’ He further explained that, in the event that there had been

more ventilation—for example, if a door or window had been open during

the fire—‘‘a love seat like [the one in the victim’s apartment] is capable of

generating [a] maximum heat release rate . . . in the order of 2000 kilowatts. In other words, it would have been six times [as] big [of a] fire; the

fire would have basically reached the ceiling, actually spread across the

ceiling, and it might have actually brought this whole room to involvement.’’

46 The respondent argues that Kelder also opined that the ground level

temperature in the apartment at the time the firefighters entered was 400

degrees or more, a temperature at which the firefighters concededly would

have been burned. On the contrary, Keldertestified that, once Boland opened

the sliding door, ‘‘the heat became lesser right away. It . . . vent[ed] itself

right out the door,’’ which allowed the firefighters to enter. Indeed, according

to Kelder, ‘‘there was not a lot of heat in that room at the time they entered.’’

We note that, on cross-examination, Kelder was asked whether, on the

basis of the firefighters’ trial testimony, he could estimate the temperature

inside the apartment when the firefighters entered. Kelder responded that

it was probably 600 to 800 degrees at floor level when Tomkunas touched

the outside of the front door, at which point, as far as Kelder could recall,

another firefighter opened the sliding glass doors, ‘‘dissipating the smoke

and heat . . . right out the door.’’ Kelder further stated, however, that he

would have to review the transcript of the trial testimony of the firefighters

a second time to formulate a more precise estimate of what the temperature

was when they arrived and that, in any event, his analysis of the fire was

dependent on factors other than entry level temperatures.

47 DeHaan testified as follows on cross-examination:

‘‘Q. Now, in your testimony, you indicated that you estimated that the

temperature in the apartment when . . . Tomkunas entered was 300

degrees?

‘‘A. No, I think I said 400 degrees.

‘‘Q. Did you say 400 degrees?

‘‘A. I believe I did, yes. I talked about a lot of temperatures. . . .

‘‘Q. Well . . . what exactly do you mean by that?

‘‘A. I’m talking about the hot gas layer temperature, because it wouldn’t

have been much hotter than that and still left so much . . . relatively undamaged in the structure. If it had been much over 400 degrees . . . then there

would have been more thermal damage to materials in the structure, in the

smoke layer. If [it had] been much lower than that, then . . . Tomkunas

would not have necessarily been dissuaded from entering.’’

48 When asked whether it was ‘‘significant that the rug in the apartment

hadn’t burned in any way,’’ DeHaan stated: ‘‘Yes, that shows that the temperature of the hot smoke layer never got above a certain threshold because
the hotter that smoke layer is, the more intense the radiant heat is, and the

lack of damage to the . . . synthetic fiber rug indicates that the radiating

heat was very limited [be]cause what happens is that, even under fairly low

radiant heat intensities, synthetic fabrics, like carpets, tend to start to melt,

and, when they do, they get kind of crispy to the touch; once they cool off

again, they’re kind of—you can actually rub your hand across [them] and

detect that thermal effect . . . but there was no reported melting or ignition,

even close to ignition [of the victim’s carpet], and that . . . set a limit for

just how hot that hot smoke layer was [at its peak].’’

49 In contrast, both DeHaan’s report and Kelder’s report were introduced

as full exhibits.

50 Accordingly, the third habeas court’s conclusory—and factually unsupported—assertion that DeHaan’s burn time estimate was inconsistent with

the ‘‘historical and physical evidence marshaled by Corry’’ is puzzling. As

we have indicated, all three experts were provided with the same information

and materials about the fire. Although Kelder and Corry visited the victim’s

apartment complex as part of their review of the evidence, DeHaan was

provided with a set of architectural drawings, and his testimony indicates

that he assumed for purposes of his analysis the same conditions that Kelder

and Corry observed firsthand, namely, an airtight compartment with a high

insulation factor. DeHaan testified that visiting the apartment twenty-three

years after the fire would have served no useful purpose because the fire

was a contents fire, and the contents were no longer available for inspection.

Indeed, there was no material difference in the underlying testimony of the

three experts; their testimony differed only with regard to their ultimate

opinion as to the estimated burn time.

51 Specifically, Corry testified as follows:

‘‘A. Based on the evidence from witnesses and so forth, I would say 5:45

[p.m.], based on the fact that . . . Howard, the [victim’s] daughter, drove

by and said she saw [the victim] outside emptying trash between 5:30 and

5:45 [p.m.], and probably 7:55 [p.m.], which is when . . . Howard claimed

she called [the victim] and there was no answer on the [tele]phone.

‘‘Q. And what is the basis of your conclusion based on those facts?

‘‘A. Well, [the victim] was in the apartment and she didn’t answer the

[tele]phone, so she had already been assaulted and was probably incapacitated at that point.

‘‘Q. So . . . with regard to the earlier time, when she was viewed outside

the apartment, that was clearly before the fire was set?

‘‘A. Right.

‘‘Q. So . . . in your opinion, the fire could have been set at any time

within that time frame?

‘‘A. I think so, yes. I believe that’s when it was set.’’

Along the same lines, Corry predicated certain other conclusions about

the fire’s burn time on facts or assumptions unrelated to the dynamics of

the fire itself. For example, Corry opined that the ignition point of the fire

was ‘‘on the bottom of the back of the couch.’’ When asked why, he stated:

‘‘Only because it would [require] . . . a match, and that’s what [the petitioner] said in his [third statement to the police, namely] . . . that he had

a match.’’

52 Justice Zarella’s view of this case, then, is very simple. He asserts that

the Appellate Court ‘‘removed any requirement that the petitioner make a

credibility showing’’ under Brady, and, ‘‘[a]s a result, the Appellate Court

analyzed the petitioner’s claim by hypothesizing what a jury could find, if

it credited the new evidence. . . . The Appellate Court granted the petitioner a new trial on the basis of the results of this speculation. . . . The

issue presented to this court is whether the Appellate Court properly concluded as it did.’’ (Citations omitted; emphasis in original.) Of course, the

only possible answer to this question is ‘‘no,’’ and Justice Zarella supplies

it. As we explain hereinafter, however, in characterizing the issue as he

does, Justice Zarella sets up, and then demolishes, the flimsiest of straw men.

53 Thus, there simply is no justification for Justice Zarella to attribute to

the Appellate Court an absurd standard of review. But, even if there were

some question as to whether the Appellate Court had engaged in plenary

review of the credibility of the parties’ expert testimony or, as Justice Zarella

argues, no review at all, we would not accept Justice Zarella’s contention

because it is well established that we would read any such ambiguity to

support rather than to undermine the Appellate Court’s judgment. See, e.g.,

Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230

Conn. 764, 773, 646 A.2d 790 (1994).

54 What would be surprising is if the respondent had argued that the

AppellateCourt simply assumed the credibility ofthattestimony and,further,

that the habeas court likewise has no role in assessing the testimony. Indeed,
the absurdity of attributing such a position to the Appellate Court is reflected

in Justice Zarella’s characterization of the issue of law that, he claims, is

presented by this appeal, namely, whether the petitioner has the ‘‘burden

to establish the credibility of new evidence in order to prove Strickland/

Brady prejudice and the [third] habeas court’s role in determining whether

the petitioner has met that burden.’’ Because it is axiomatic that the petitioner bears such a burden—in other words, because the credibility of

evidence presented to establish a Brady claim most certainly cannot be

assumed—to ask the question that Justice Zarella poses is to answer it.

55 As we have explained, the respondent also claims that the Appellate

Court misapplied the reasonable probability standard for ascertaining materiality under Brady by improperly speculating as to what a jury might find

on the basis of that testimony ratherthan determining whether the testimony

gave rise to a reasonable prospect of a different outcome. See footnote 44

of this opinion. Of course, that claim is entirely different from the claim

that Justice Zarella raises sua sponte.

56 We therefore reject Justice Zarella’s contention that our decision in the

present case is somehow inconsistent with Blumberg Associates Worldwide,

Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 84 A.3d 840

(2014) (Blumberg), in which we limited the discretion of this court and the

Appellate Court to identify and address claims not raised by the parties in

recognition of the fact that ‘‘our system is an adversarial one in which the

burden ordinarily is on the parties to frame the issues, and the presumption

is that issues not raised by the parties are deemed waived.’’ Id., 164. Because

we are addressing and resolving the claim that the respondent has raised,

the principles underlying Blumberg simply are not implicated.

57 For his part, the petitioner argues that the Appellate Court correctly

concluded that his experts were worthy of belief and that he was entitled

to have a jury make the ultimate determination of whether to credit their

testimony or that of the respondent’s expert. Indeed, the petitioner argues

that the judgment of the Appellate Court should be affirmed because ‘‘[t]he

point is all the experts, as made clear by the [third] habeas court, offered

credible evidence as to the fire’s burn time, all of which established that

the suppression of the burn time was an important and significant issue

going to the heart of the prosecution. It was not for the [third] habeas court,

in what it concedes was a ‘contest among experts,’ to determine materiality

based on which expert it found the most credible.’’ To the extent that Justice

Zarella recites various arguments that the petitioner has not made, those

arguments are beside the point. Because the respondent is the appellant in

this appeal, we focus on whether the respondent’s arguments are sufficiently

persuasive to warrant reversal of the Appellate Court’s judgment.

58 Justice Zarella also contends that, ‘‘[b]ecause neither party has claimed,

either in this court or the Appellate Court, that an appellate tribunal can

properly make its own credibility assessments . . . we have no briefing

from the parties on [this issue] . . . .’’ Once again, the record flatly contradicts Justice Zarella’s contention. The respondent’s brief contains an extensive discussion of why, in the respondent’s view, the third habeas court

properly resolved the materiality question as it did. Indeed, as we discuss

subsequently in this opinion; see part III C of this opinion; Justice Zarella’s

arguments concerning the evidentiary underpinnings of the third habeas

court’s conclusions regarding the burn time evidence mirrorthe respondent’s

arguments in all respects—arguments that, according to Justice Zarella, the

respondent was deprived of the opportunity to make, thus forcing Justice

Zarella to make them on his own.

59 We also note that, according to Justice Zarella, the third habeas court

concluded that the petitioner’s burn time testimony ‘‘likely would not be

admissible’’ because it ‘‘would not be helpful to a jury . . . .’’ Footnote 23

of Justice Zarella’s dissenting opinion. In support of this assertion, Justice

Zarella relies on the following italicized language in the third habeas court’s

memorandum of decision: ‘‘The experttestimony on the fire and its estimated

total burn time would not be in the ordinary knowledge and experience of

the typical juror. While it may be relatively easy to conclude that expert

testimony such as what was presented to [the third habeas] court could

have been presented to the jury, the use of such experts would not have

assisted the jury in knowing precisely when the fire was set.’’ (Emphasis

added.) Contrary to Justice Zarella’s assertion, it is perfectly clear that, in

using this language, the third habeas court in no way was suggesting that

the testimony of DeHaan and Kelder—two highly experienced and qualified

experts in the science of fire reconstruction who, in the words of the third

habeas court, were embroiled with Corry in ‘‘a prototypical battle of the
experts’’—would have been inadmissible at the petitioner’s criminal trial.

Rather, the court was merely explaining why, in its view, a jury would not

be persuaded by that testimony, that is, because it was not sufficiently

definite or precise as to when the fire was set. The third habeas court

expressly stated that its rejection of the petitioner’s claim was predicated

on its determination that Corry’s testimony was entitled to ‘‘more credit or

weight’’ than the testimony of DeHaan and Kelder, and not, as Justice Zarella

claims, that the testimony of DeHaan and Kelder was inadmissible. In fact,

the third habeas court would have been incorrect as a matter of law if it

had reached the conclusion that Justice Zarella attributes to it because it

is undisputed that the testimony of the petitioner’s experts, if credited along

with Martin’s testimony, would provide the petitioner with a complete alibi.

60 As we previously noted, the third habeas court’s credibility determination was not predicated on any underlying findings that required a firsthand

assessment of witness credibility. Justice Zarella, however, asserts that the

third habeas court ‘‘necessarily depended on’’ the testimony of Igoe, a witness at both the petitioner’s criminal trial and the third habeas trial, in

crediting the opinion of Corry over the opinion of DeHaan. In support of

this assertion, Justice Zarella observes that Igoe, whom the petitioner called

as a witness, tested a small portion of the foam from inside the couch many

hours after the fire was extinguished and indicated that it burned slowly,

whereas DeHaan testified that, in his view, the couch itself had burned

rapidly. Justice Zarella’s assertion that the third habeas court relied on this

testimony in crediting Corry’s opinion is incorrect. Igoe further testified

that he never soughtto determine the burn time ofthe fire and neverrendered

an opinion about how long the fire burned. In fact, as the respondent states

in his brief to this court, ‘‘Igoe . . . made [it] abundantly clear when he

testified at the [third habeas] trial that he could opine only that it may have

taken anywhere from ‘several minutes to several hours’ for the fire to ‘get

rolling,’ ’’ depending on the conditions in the house. In other words, Igoe

did not know whether the fire consumed the couch in moments or hours.

This testimony explains why the third habeas court did not include Igoe’s

testimony as one of the several reasons why he credited Corry over DeHaan:

whatever Igoe may have meant when he stated that the portion of the couch

that he tested had burned slowly, there is nothing in that testimony that

would cast doubt on DeHaan’s opinion regarding the burn time of the fire.

Moreover, Igoe’s testimony about the couch foam did not support Corry’s

analysis over DeHaan’s or Kelder’s because, as we previously have explained,

all three experts were in complete agreement about the dynamics of the

fire and burn properties of the materials comprising the couch. Specifically,

they all agreed that the materials, including the foam inside the couch

cushions, were highly flammable and could support a powerful (high energy)

fire if there had been more oxygen in the victim’s apartment. They also

agreed that the fire, which was set on the back of the couch, not the couch

cushions, burned out before it could involve the couch cushions. Photographs of the crime scene reveal that the couch cushions were relatively

intact in comparison to the back of the couch, which was completely

destroyed, and Corry himself believed that something must have been lying

across the couch to prevent the fire from spreading to the cushions. Consequently, Igoe’s testimony at the third habeas trial could have had no bearing

on the third habeas court’s evaluation of the parties’ expert testimony.

61 In none of the cases on which Justice Zarella relies to support his

contention; see, e.g., Sanchez v. Commissioner of Correction, 314 Conn.

585, 611–12, 103 A.3d 954 (2014); Anderson v. Commissioner of Correction,

313 Conn. 360, 375, 98 A.3d 23 (2014), cert. denied sub nom. Anderson v.

Semple, U.S. (83 U.S.L.W. 3678, February 23, 2015); did we have

occasion to address the exceptional situation, presented here, in which this

court is in as good a position as the trial court to judge credibility for

purposes of the Brady materiality determination. Consequently, there is

nothing in any of those cases that forecloses our de novo review of the

credibility findings of the third habeas court in the present case.

62 Of course, a defendant seeking a new trial on the basis of newly discovered evidence bears a significantly higher burden of establishing the materiality of the evidence at issue than a defendant raising a claim under Brady

or Strickland. This is so, of course, because Brady and Strickland seek to

vindicate the defendant’s fair trial rights, whereas a new trial petition based

on newly discovered evidence does not.

63 In fact, the second step of the materiality analysis in this very case

provides such an example. Under Brady and Strickland, it must be determined whether the evidence at issue, when considered in the context of
the original trial, is of sufficient import relative to that original trial evidence

to undermine confidence in the verdict. As in all such cases, our review of

that determination is de novo because we are as well situated as the habeas

court to make that decision.

64 Justice Zarella also asserts that ‘‘[s]ubsequent cases from the Indiana

Court of Appeals appear to have limited, if not overruled, the holding in

Bunch.’’ Footnote 21 of Justice Zarella’s dissenting opinion. Our review of

the cases that Justice Zarella cites reveals otherwise. On the contrary, those

cases uniformly underscore the court’s continued support of Bunch. See,

e.g., White v. State, 978 N.E.2d 475, 481 (Ind. App. 2012) (agreeing with

court in Bunch that reviewing court should not deferto threshold admissibility finding of postconviction court when that finding did not involve credibility determination because, in such circumstances, reviewing court is ‘‘in the

same position as the trial court and therefore [is] able to independently

assess the evidence . . . without invading the province of the trial court’’

[internal quotation marks omitted]), trans. denied, 982 N.E.2d 1016 (Ind.

2013); see also Cardinal Ritter High School, Inc. v. Bullock, 17 N.E.3d 281,

291 (Ind. App. 2014) (citing Bunch approvingly for proposition that it is not

necessary for reviewing court to defer to postconviction court’s assessment

of expert’s scientific evidence when ‘‘the assessment was not based on

demeanor but on evidence that was also in front of the [reviewing] court’’).

65 Justice Zarella accuses us of posing these two examples in an attempt

to ‘‘distract’’ the readerfrom our‘‘constitutional transgression’’ in the present

case. Footnote 17 of Justice Zarella’s dissenting opinion. On the contrary, we

pose them to highlight the flaws in Justice Zarella’s constitutional analysis.

Justice Zarella further explains that these ‘‘two undisputed propositions’’

merely present ‘‘mixed questions of law and fact’’ that this court previously

has acknowledged are subject to de novo review. Id. To the extent that we

understand Justice Zarella’s argument, it proves our point, first, because

neither the clearly erroneous standard nor our Kitchens waiver inquiry

represents a mixed question of law and fact, whereas the Brady materiality

standard is properly characterized in that manner. E.g., State v. Ortiz, supra,

280 Conn. 720. Furthermore, although we have labeled the second prong

of the clearly erroneous standard and the Kitchens waiver test as posing

questions of law—because they are to be decided by the reviewing court,

without regard to any findings by the trial court—they undeniably involve

fact-finding of the most basic kind, and Justice Zarella makes no attempt

to demonstrate otherwise. Of course, we are not now questioning our authority to make the kind of findings required in those two examples; we note

them, rather, because they are manifestly inconsistent with Justice Zarella’s

insistence that our exercise of de novo review in the present case is somehow unconstitutional.

66 Such a claim is also belied by the record because DeHaan actually

testified that exposure to 300 or 400 degree temperatures for any period of

time ‘‘would . . . give you second, third degree burns . . . .’’

67 Justice Zarella asserts that ‘‘[t]he majority attempts to reconcile

DeHaan’s testimony on this point by claiming that DeHaan, in stating that

one could have approached the fire and extinguished it, meant that one could

have approached the fire if one were wearing proper protective equipment.

Curiously, however, no such qualification appears in DeHaan’s testimony

on this point—the majority has simply made this up out of whole cloth.’’

Footnote 27 of Justice Zarella’s dissenting opinion. Although it certainly is

true that no such qualification appears in DeHaan’s testimony, this is only

because none was sought by the parties, presumably because they did not

perceive the need for one. We also do not believe that an explanation is

required because, unlike Justice Zarella, we do not read DeHaan’s testimony

concerning the fire’s energy level in isolation so as to render it nonsensical

or absurd. Rather, we read it in the context of DeHaan’s entire testimony,

including his testimony that Tomkunas was unable to enter the victim’s

apartment because he lacked the proper attire and breathing equipment,

and not because the fire was of such magnitude as to preclude entry by a

properly equipped firefighter. Indeed, it was undisputed among the experts

that the fire never spread beyond the couch and was reduced to a smoldering

fire quickly due to decreasing levels of oxygen.

68 We note that Justice Zarella also argues that the third habeas court

‘‘was fully justified in concluding that Kelder’s opinion would be excluded

from a criminal trial altogether’’ because ‘‘[t]he petitioner did not provide

any evidence to show that Kelder used scientifically valid methods to investigate the fire, rendering his testimony not credible and inadmissible.’’ For

the reasons that we previously discussed; see footnote 59 of this opinion;
we reject Justice Zarella’s contention that the third habeas court concluded

that Kelder’s testimony was inadmissible. Nor is there any support in the

record for Justice Zarella’s contention concerning the admissibility of Kelder’s testimony. Even if Justice Zarella is correct, a jury only would have to

credit one of the petitioner’s experts to conclude that it was temporally

impossible for the petitioner to have committed the crimes with which he

was charged.

69 Justice Espinosa also has issued a dissenting opinion. To the extent

that her opinion purports to raise any relevant points of law, they are

identical to those raised by Justice Zarella, whose dissenting opinion we

already have addressed. Thus, no substantive response to Justice Espinosa

is called for. We are constrained, however, to make the following brief

observation. It often has been repeated and long understood that the principal purpose of the ‘‘great writ’’ of habeas corpus, which traces its origins

to the Magna Carta, is ‘‘to serve as a bulwark against convictions that violate

fundamental fairness.’’ (Internal quotation marks omitted.) Luurtsema v.

Commissioner of Correction, 299 Conn. 740, 757, 758, 12 A.3d 817 (2011).

‘‘Because the writ is intended to safeguard individual freedom against arbitrary and lawless state action, it must be administered with the initiative

and flexibility essential to [e]nsure that miscarriages of justice within its

reach are surfaced and corrected.’’ (Internal quotation marks omitted.) Id.,

757–58. Today, a majority of this court, applying those venerable legal principles following a scrupulous and objective review of the trial record, upholds

the decision of a unanimous panel of the Appellate Court in concluding

simply that the state’s Brady violation, and the failure of the petitioner’s

habeas counsel to recognize that violation, entitles the petitioner to a

new trial.

Justice Espinosa reaches a different conclusion, which, of course, is her

right. Rather than support her opinion with legal analysis and authority,

however, she chooses, for reasons we cannot fathom, to dress her argument

in language so derisive that it is unbefitting an opinion of this state’s highest

court. Perhaps worse, her interest lies only in launching groundless ad

hominem attacks and in claiming to be able to divine the (allegedly improper)

personal motivations of the majority. We will not respond in kind to Justice

Espinosa’s offensive accusations; we are content, instead, to rely on the

merits of our analysis of the issues presented by this appeal. Unfortunately,

in taking a different path, Justice Espinosa dishonors this court.

70 This court has long recognized that ‘‘confessions represent the most

damaging evidence of guilt . . . . State v. Ruth, 181 Conn. 187, 199, 435

A.2d 3 (1980); see also State v. Patterson, 276 Conn. 452, 473, 886 A.2d 777

(2005) (evidence regarding an accused’s admission of guilt generally is

extremely important to the state and damaging to the accused); Commonwealth v. DiGiambattista, 442 Mass. 423, 446, 813 N.E.2d 516 (2004) ([t]here

is no dispute that the evidence of a defendant’s alleged statement or confession is one of the most significant pieces of evidence in any criminal trial).’’

(Citation omitted; internal quotation marks omitted.) State v. Lockhart, 298

Conn. 537, 596, 4 A.3d 1176 (2010); see also Colorado v. Connelly, 479 U.S.

157, 182, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986) (‘‘[t]riers of fact accord

confessions such heavy weight in their determinations that the introduction

of a confession makes the other aspects of a trial in court superfluous, and

the real trial, for all practical purposes, occurs when the confession is

obtained’’ [internal quotation marks omitted]); Ex parte Soffar, Texas Court

of Criminal Appeals, Docket Nos. WR-29 980-03, WR-29 980-04 (Tex. Crim.

App. October 3, 2012) (‘‘Juries routinely accept the notion that an innocent

person would never confess to a crime he didn’t commit; therefore, if a

person has confessed, he must be guilty. . . . Unfortunately, that commonsense position is not necessarily accurate. Legal literature is littered with

cases in which innocent people confess to crimes that they have not committed. . . . [O]nce a confession is introduced into evidence against a suspect

at trial, it almost inevitably leads to a suspect’s conviction. [Indeed] . . .

[s]tudies show that individuals who falsely confessed and chose to take

their cases to trial were [found guilty] by juries [73 to 81 percent] of the

time before having their innocence proven.’’ [Footnotes omitted; internal

quotation marks omitted.]); M. Berger, ‘‘False Confessions—Three Tales

from New York,’’ 37 Sw. U. L. Rev. 1065, 1067 (2008) (‘‘No one doubts that

confessions have an enormous impact. Once jurors hear the defendant

confessed, the result is likely to be a guilty verdict regardless of [the]

defendant’s attempted explanation. The notion that an innocent suspect will

admit to committing a crime is deeply counter to most persons’ assumptions

about how they would respond if falsely accused. . . . [F]ew, if any phenom-
ena of human behavior . . . are less intuitive than that of false confessions.’’

[Footnote omitted; internal quotation marks omitted.]).

71 Shortly after Lombardo took over the investigation of the murder and

sexual assault of the victim, he obtained a saliva sample from Brad Thomas,

a suspect in another sexual assault case. Test results revealed that Thomas,

like the petitioner, also was a secretor with type A blood. According to

Lombardo, Thomas was eliminated as a suspect because there were sperm

in the semen sample from the sex crime kit in the other sexual assault case

in which he had been charged. This fact might not eliminate Thomas as a

source of the semen at the crime scene. See footnote 73 of this opinion.

72 Although there is no evidence in the record concerning the age of the

stain, it always has been assumed that it was left by the killer and, therefore,

that the killer is a secretor with type A blood.

73 Novitch testified that ‘‘[a]n ejaculation is not a homogeneous mixture,’’

and because ‘‘the sperm cells [that contain DNA] are heavy,’’ they frequently

do not combine with the other components of the semen. As a result, Novitch

further explained: ‘‘[V]ery often, when I find a seminal stain, there isn’t any

sperm in that . . . stain,’’ even though the donor’s semen does, in fact,

contain sperm.

In addition, John Coleman, a forensic scientist employed by Life Codes

Corporation, also examined the semen stain from the victim’s bedspread.

Testifying on behalf of the state, he explained that heat will degrade the

DNA in semen such that, ‘‘at 100 degrees, [it] would certainly affect the

DNA molecule.’’ As we previously indicated, the parties’ fire experts testified

at the third habeas trial that temperatures inside the victim’s apartment

likely reached 400 to 600 degrees during the fire.

74 See, e.g., State v. Perea, supra, 322 P.3d 642–44 and nn.10–18 (discussing

some of extensive literature on false confessions and factors likely to produce them); B. Garrett, ‘‘The Substance of False Confessions,’’ 62 Stan. L.

Rev. 1051, 1060 (2010) (‘‘Over the past two decades, scholars, social scientists, and writers have identified at least 250 cases in which they determined

that people likely falsely confessed to crimes. New cases are regularly

identified.’’); D. Harkins, ‘‘Revisiting Colorado v. Connelly: The Problem of

False Confessions in the Twenty-First Century,’’ 37 S. Ill. U. L.J. 319, 320

(2013) (‘‘[T]he advent of DNA testing has provided a powerful new way to

conclusively demonstrate that false confessions occur much more frequently

than was previously understood. . . . In fact, recent studies have illustrated

that roughly one-fourth of all DNA exonerations involved a false admission

of guilt—a staggering figure that is indicative of the power of confession

evidence.’’).

75 Although the trial court found that the petitioner was not actually in

police custody when he made his statements, the interrogation, which took

place at the station house at the request of the police, lasted nine hours,

and the petitioner did not leave until he was told to do so in the early

morning hours of the following day. These circumstances, coupled with the

petitioner’s mental impairment, gave rise to a scenario that, in many respects,

was akin to custodial interrogation. See, e.g., State v. Mangual, 311 Conn.

182, 193, 85 A.3d 627 (2014) (‘‘[a]s used in . . . Miranda [and its progeny],

‘custody’ is a term of art that specifies circumstances that are thought

generally to present a serious danger of coercion’’ [internal quotation marks

omitted]); see also In re Kevin K., 299 Conn. 107, 127, 7 A.3d 898 (2010)

(explaining that ‘‘[a] person is in custody . . . if, in view of all the surrounding circumstances, a reasonable person would have believed [that] he

was not free to leave’’ [internal quotation marks omitted]).

76 Significantly, in 2011, our legislature sought to address the growing

concern over false and coerced confessions by enacting Public Acts 2011,

No. 11-174, § 1 (P.A. 11-174), codified at General Statutes § 54-1o, which

mandates that all custodial interrogations of persons suspected of committing certain enumerated felonies be electronically recorded. Public Act 11-

174, § 1, became effective January 1, 2014.

77 Brooks, Lombardo’s commanding officer, testified that, prior to their

interrogation of the petitioner, he and his officers had heard ‘‘from a number

of people’’ that the petitioner ‘‘was slightly retarded . . . .’’ According to

Brooks, the petitioner was always ‘‘friendly’’ and ‘‘talkative’’ but did not

‘‘impress [him] . . . as being an intellectually bright individual . . . .’’ He

was, according to Brooks, ‘‘different . . . .’’ When asked to explain in what

way the petitioner was different, Brooks responded: ‘‘One primary factor

is that [he] did not drive a car. [There is] [n]o law against that, but [it is]

highly unusual in our society today.’’ Brooks also noted that the petitioner

‘‘moved from job to job, and they were primarily low paying, low skilled
type of jobs.’’

78 The petitioner was fifteen years old when he developed a condition,

related to Dandy-Walker syndrome, that required him to undergo five surgeries to relieve intercranial pressure.

79 For example, Thomas Moriarty, an attorney from Manchester, testified

that the petitioner and Martin, his wife, were regular customers at the

supermarket Moriarty managed during law school. According to Moriarty,

the petitioner was ‘‘very simple,’’ ‘‘more like a child inside a man’s body.’’

Moriarty testified that the petitioner was ‘‘really a jolly little . . . guy, you

know. He was kind, and he was courteous. But . . . he was very simple.

And his wife, frankly, came across the same way.’’ Moriarty testified that

the petitioner was so gullible that, when he told him that the bananas sold

in the store were grown on trees located behind the store, the petitioner

asked repeatedly if Moriarty would show him the trees.

According to Robert Russo, a priest at Saint Bridget Church in Manchester,

it was ‘‘readily apparent’’ to anyone who knew the petitioner that his ‘‘mental

capacity was not up to par.’’ Russo stated that, although people teased the

petitioner quite a bit about it, he ‘‘took [it] in a very [kind] way. He would

laugh about it [and] joke about it. . . . [People] obviously knew he was

slow, and they would try to engage him in conversation that was far above

his mental abilities. And [the petitioner] would always try to respond. But,

of course, he couldn’t do it. And so they would laugh at that, make jokes

about it.’’

Michael Andreo, the owner of a supermarket at which the petitioner

worked for several years, testified that the petitioner was ‘‘[m]entally . . .

incapable’’ of running a cash register or even stocking shelves. ‘‘He tried to

stock shelves,’’ but he would ‘‘get mixed up’’ and put things in the wrong

place.

Elizabeth Martin, the petitioner’s mother-in-law, testified that both the

petitioner and his wife had the mentality of ‘‘eight year old[s] . . . .’’ When

asked how they were able to function at home if this were the case, Elizabeth

Martin responded: ‘‘Well, I hate to hurt [the petitioner’s] feelings, but not

great. . . . [The petitioner’s wife] couldn’t really do housework [because

of her physical disability]. So, it was . . . left to [the petitioner]. And most

things . . . my husband [had] to [do for them]. A lot of the things [in the

house] . . . were broken . . . . [The petitioner] was awkward. He wasn’t

well coordinated.’’

80 The petitioner was evaluated by the following mental health professionals and physicians: Kenneth M. Selig, a forensic psychiatrist in private practice; Anne M. Phillips, a clinical psychologist in private practice; Walter M.

Phillips, chief of psychology at Waterbury Hospital and a member of the

faculty at Yale University; Geraldine R. Cassens, a neuropsychologist at the

Institute of Living in the city of Hartford; Gus Anderson, a neurologist in

private practice; and Donald R. Grayson, a psychiatrist in private practice.

Reports were obtained from all of these experts and introduced at various

stages of the proceedings.

81 At trial, Grayson testified that the petitioner’s higher than expected IQ

score on a test administered by Anne M. Phillips was the result of the

petitioner’s ability to ‘‘[memorize] a great deal of ‘ice cream knowledge,’ ’’

such as state capitals, information that makes him appear more intelligent

than he really is but does little to help him navigate or function in the dayto-day world.

82 As this court explained in its decision in the petitioner’s direct appeal

from the judgment of conviction, ‘‘[i]n order to counter the [petitioner’s]

experts’ opinions concerning the [petitioner’s] possible inability to assert

himself and their testimony that the [petitioner] might be meek and highly

suggestible, the state presented several witnesses, both at the suppression

hearing and during rebuttal at trial, who testified that, in view of their

personal experiences with the [petitioner], they found him to be extremely

independent, assertive, argumentative and even hot tempered.’’ State v.

Lapointe, supra, 237 Conn. 723. Upon review of the aformentioned testimony, however, it is clear that only one of the witnesses, the petitioner’s

former neighbor, described the petitioner as argumentative and hot tempered. On appeal, the respondent relies on the testimony of this witness—

who claims that the petitioner once stomped her flowers into the ground

in a fit of pique because the flowers were planted in violation of their

condominium association’s rules—in support of the argument that, even if

the original jury had considered the original trial evidence together with

the new alibi evidence, there is no reasonable probability that the result

would have been different. As we explain more fully hereinafter, the testi-
mony of the petitioner’s neighbor, like the testimony of the state’s other

rebuttal witnesses, most of whom were members of the victim’s family,

does not instill confidence in the verdict. To the contrary, most of it strongly

reinforced the testimony of defense witnesses that the petitioner is a socially

odd and childlike man, with a very rigid approach to life.

83 Lombardo testified at length regarding the petitioner’s body language

during the interrogation. Lombardo told the jury that, in his experience, the

petitioner’s passivity and failure to object loudly, as well as the way he sat

in ‘‘a runner’s position’’ and wrung his hands, was indicative of ‘‘someone

who [was] being deceptive or trying to hide something.’’ It bears mention,

however, that, at the petitioner’s first habeas trial, Richard Leo, a leading

authority on police interrogation methods and false confessions, testified

that the commonly held belief among police officers that deception can

be determined merely by observing someone’s body language is ‘‘totally

pseudoscientific . . . . [I]f somebody is slumped over, if somebody is passive, if somebody utters quiet denials, if somebody is in a runner’s position,

somebody is sweating, evasive or nervous, that is not necessarily indicative

of guilt . . . .’’ Leo’s observation that the police officers make poor lie

detectors has been confirmed in a number of recent studies. See, e.g., G.

Gudjonsson, ‘‘False Confessions and Correcting Injustices,’’ 46 New Eng. L.

Rev. 689, 696 (2012) (‘‘[c]oncerns have been raised that the [Reid behavioral

analysis interview] indicators represent little more than common-sense

beliefs about deception that are contradicted by scientific studies and place

innocent . . . suspects at risk of being misclassified and giving a false

confession’’); R. Leo, ‘‘False Confessions: Causes, Consequences, and Implications,’’ 37 J. Am. Acad. Psychiatry L. 332, 334 (2009) (‘‘[S]ocial scientific

studies have repeatedly demonstrated across a variety of contexts that

people are poor human lie detectors and thus are highly prone to error in

their judgment about whether an individual is lying or telling the truth. Most

people get it right at rates that are no better than chance [that is, 50 percent]

or the flip of a coin. Moreover, specific studies of police interrogators have

found that they cannotreliably distinguish between truthful and false denials

of guilt at levels greater than chance; indeed, they routinely make erroneous

judgments. The method of behavior analysis taught by [one well established]

police training firm . . . has been found empirically to lower judgment

accuracy, leading [two researchers] to conclude that the [foregoing method

of behavior analysis] may not be effective—and, indeed, may be counterproductive—as a method of distinguishing truth and deception . . . .’’ [Citation

omitted; footnotes omitted; internal quotation marks omitted.]); J. Masip et

al., ‘‘Is the Behaviour Analysis Interview Just Common Sense?,’’ 25 Applied

Cognitive Psychol. 593, 595 (2011) (‘‘[T]he behavioural indicators of deception [established by earlier research] do not coincide with the scientific

evidence accumulated over several decades of [more recent] empirical

research. . . . [More recent research reveals] that observers’ accuracy in

judging the veracity of truthful and deceptive [video-recorded] statements

was lower if the observers had previously been trained to detect deception

using . . . cues [established by that earlier research] than if they had not

been trained.’’ [Emphasis in original.]). We acknowledge Leo’s testimony

and the foregoing related scholarly articles merely to point out that any

testimony by Lombardo at a new trial concerning the petitioner’s purportedly

incriminating body language may well be subject to substantial impeachment, thereby minimizing or even eliminating whatever adverse effect that

testimony might have had on the petitioner at his criminal trial.

84 As we discuss more fully in footnote 91 of this opinion, the witness to

whom Lombardo was referring, King, the victim’s next door neighbor, testified at the petitioner’s criminal trial that she never told Lombardo or anyone

else that she had seen the petitioner walking his dog near the victim’s

apartment on the evening of the victim’s murder.

85 As the petitioner contends, a secretly recorded interview of Martin by

Morrissey, which came to light after Morrissey had testified at the hearing

on the petitioner’s motion to suppress, provides strong support for the

petitioner’s account of his own interrogation. Specifically, the audio

recording demonstrates that Morrissey threatened Martin with arrest and

repeatedly told her that she could lose custody of her son if she did not

provide Morrissey with incriminating information about the petitioner.

Because the recording came to light while the suppression hearing was

ongoing, the trial court, Barry, J., permitted the petitioner’s trial counsel to

recall Morrissey to be questioned about the recording and the discrepancies

between it and Morrissey’s earlier testimony regarding his interview of

Martin. At that time, Morrissey acknowledged that, when he first appeared

as a witness, and in the affidavit that was filed in support of the application
for the petitioner’s arrest warrant, Morrissey provided inaccurate and misleading testimony concerning his interview of Martin and the statements

she gave during that interview. Indeed, we have reviewed the suppression

hearing testimony that Morrissey provided both before and after the disclosure of the recording, as well as the recording itself, and we are compelled

to observe that the numerous discrepancies between Morrissey’s original

account of his interview with Martin and what actually transpired during

that interview as reflected in the recording are very troubling and call into

serious question the credibility of one of the state’s key witnesses. In his

amended habeas petition, the petitioner alleged that his trial counsel provided ineffective assistance by failing to present the recording to the jury

to impeach Morrissey’s testimony and to establish that the petitioner’s confession was coerced and false. The third habeas court rejected this claim,

concluding, inter alia, that, although the recording was ‘‘laden with implicit

threats’’ to Martin, trial counsel’s failure to use it at trial was a ‘‘tactical

decision’’ that did not rise to the level of ineffective assistance of counsel,

a determination that the petitioner challenged on appeal to the Appellate

Court. The Appellate Court did not reach this issue, however, in light of its

determination that the petitioner was entitled to a new trial on the basis of

the state’s suppression of the Ludlow note. See Lapointe v. Commissioner

of Correction, supra, 138 Conn. App. 479–80 n.22. On appeal to this court

following our granting of certification, the petitioner raises as an issue his

trial counsel’s failure to present the recording of Morrissey’s interview of

Martin as an alternative ground for affirmance. Like the Appellate Court,

we need not reach this issue in light of our determination that the petitioner

is entitled to a new trial due to the state’s suppression of the Ludlow note.

We agree with the Appellate Court, however, that it is difficult to discern

why trial counsel would not have presented this evidence to the jury ‘‘when

the stated trial strategy was to demonstrate the falsity of the petitioner’s

statements’’; id., 480 n.22; and when the evidence bore so directly on the

credibility of Morrissey, the officer who had elicited the most incriminating

statement from the petitioner and whose truthfulness and reliability regarding the circumstances under which that statement was elicited were critical

to the state’s case.

Furthermore, notwithstanding the third habeas court’s ruling, we have

little doubt that the petitioner’s counsel will make effective use of the

recording at a new trial, if the state elects to retry the petitioner, both to

impeach Morrissey’s credibility and to bolster the petitioner’s claim that the

burn time estimates provided by DeHaan and Kelder prove that it was

temporally impossible for the petitioner to have committed the crimes of

which he was convicted because the testimony of DeHaan, Kelder and

Martin provides him with a complete and compelling alibi.

86 For present purposes, our focus, of course, is the import of the burn

time evidence relative to the strength of the case that the state presented

against the petitioner; see, e.g., Rocha v. Thaler, 619 F.3d 387, 396 (5th Cir.

2010) (‘‘[t]he materiality of Brady material depends almost entirely on the

value of the evidence relative to the other evidence mustered by the state’’

[internal quotation marks omitted]), cert. denied, U.S. , 132 S. Ct.

397, 181 L. Ed. 2d 255 (2011); a case that, as we have explained, was

predicated largely on his statements to the police. As we also have explained,

a real concern arises over the reliability of the petitioner’s admissions in

light of his physical and mental impairments, the nature and substance of

his admissions, and the manner in which they were obtained. Indeed, this

commonsense concern has been substantiated by numerous articles and

studies on false confessions that have been published in the more than

two decades that have passed since the petitioner’s criminal trial. We also

acknowledge the testimony of Richard Leo, a much published and frequently

cited expert on false confessions—his research on false confessions has

been cited by numerous courts, including the United States Supreme Court—

who testified at the petitioner’s first habeas trial in support of the petitioner’s

claim of actual innocence. Following a hearing at which the first habeas

court determined that Leo’s proffered testimony was both reliable and relevant, Leo testified that false confessions have certain telltale signs. For

example, he noted that a classic interrogation tactic is ‘‘to suggest to the

suspect that it was merely an accident, because it lowers the level of culpability. . . . It gives the suspect a way to believe that they’re either not going

to get punished or they [will] get a lesser level of punishment. [The] police

are trained in this technique. It’s one of the most common techniques.’’ Leo

explained that, whenever a suspect confesses to a crime by claiming that

it was an accident, as the petitioner did in the present case, it is safe to

assume that the interrogator put the idea into the suspect’s head. Leo further

testified that the petitioner’s repeated reference to having no memory of

the crime and statements to the effect that his mind must have gone blank

are other strong indicators of a false confession. In most false confession

cases, Leo explained, a suspect gets to a point at which he ‘‘stop[s] challeng-
ing the evidence and . . . come[s] to doubt the reliability of [his] memory,

and [he] come[s] to make statements like, ‘well, maybe I was blacking out’

. . . . [He tries] to understand [how] it’s possible that [he] could have done

this with [no] recollection or memory of having done it, and [he will] say

things like [the petitioner said in the present case]: ‘Maybe my mind went

blank; maybe that’s what happened . . . .’ ’’ Leo also was troubled by the

highly equivocal nature of the petitioner’s statements: ‘‘[The petitioner states

in the second statement], ‘I probably made a pass at her and she said no.’

People who come to doubt their memory because of the [false] evidence

ploy, because they’re gullible, because they’re naive and believe [that the]

police wouldn’t lie to them [about the evidence] . . . talk in conditional

and ambivalent language: I probably did this; I could have done that; I must

have done this; I would have done that. They express uncertainty in how

they describe or admit to something, and that uncertainty essentially demonstrates their absence of actual knowledge. They’re speculating about something.’’ Leo also observed: ‘‘The next line is, ‘if the evidence shows I was

there and that I killed her, then I killed her, but I don’t remember being

there.’ Again, this is the kind of reasoning someone goes through when [he]

come[s] to doubt [his] memory. I don’tremember doing it, but, if the evidence

is there, I must have done it.’’ According to Leo, ‘‘this is how innocent

false confessors who lack the actual knowledge of how the crime occurred

[confess]. They talk in conditional language . . . .’’

Leo further noted that all three of the petitioner’s statements ‘‘contained

factual errors that shouldn’t be there if it’s a confession of a truthful person.

. . . [The petitioner] says that he strangled her manually, but, apparently,

she was not strangled manually. He [says] that he physically raped her, but

. . . there was no penile rape. These are errors. He says he tied her up with

rope initially, but she was not tied up with rope. These are the kinds of

errors that guilty people don’t make. . . . Conversely, when one looks at

false confession cases, these are exactly the kind of errors that innocent

false confessors make because they demonstrate a lack of actual knowledge.

They communicate ignorance. In the typical false confession case, [in which]

something like this occurs, the false confessor is guessing. They’re trying

to infer what occurred, they’re trying to feed back the information that they

have ascertained, or they’re just making it up, and they get it wrong.’’ In

this regard, we deem it noteworthy that, when Lombardo was asked how

the petitioner responded when Lombardo confronted him with the fact

that a witness purportedly had seen him walking his dog near the victim’s

apartment at 7 p.m., Lombardo stated that the petitioner had simply ‘‘agreed’’

that the information that the witness provided was accurate, even though, as

we explained in footnotes 84 and 91 of this opinion, no such witness existed.

Of course, Leo did not testify at the petitioner’s criminal trial. Thus, we

do not rely on his habeas testimony in evaluating the strength of the state’s

case at the petitioner’s criminal trial. We recite that testimony, rather, only

to underscore our conclusion, which is predicated on the nature of the

petitioner’s admissions and the circumstances under which they were

obtained, that his admissions are unreliable, a claim that the petitioner’s

trial counsel raised at his criminal trial.

87 The respondent also argues that a jury likely would discount the petitioner’s alibi in light of Martin’s suppression hearing testimony that she could

not account forthe petitioner’s whereabouts between 6:15 and 7 p.m. Specifically, the respondent argues that ‘‘Martin’s account changed every time she

officially spoke about [the] petitioner’s whereabouts,’’ which will ‘‘[reflect]

poorly [on] her credibility.’’ We reject this argument because it ignores the

context in which Martin’s testimony was elicited. At the hearing, Martin

was asked by the state, ‘‘from the time you began to get your son ready for

bed, until the time you came down with your son to watch [television], did

you see your husband at all?’’ Martin responded, ‘‘No. I did not.’’ The state

then asked Martin whether she knew ‘‘where he was’’ during that time. Martin

responded: ‘‘He was downstairs.’’ The following colloquy then took place.

‘‘Q. Do you know he was inside the house during the whole time or not?

‘‘A. I don’t know, I guess.

‘‘Q. . . . So, if he’d been outside of the house during that time, you

wouldn’t have known it, is that fair to say?

‘‘A. Yes.

‘‘Q. . . . And you have no way of knowing whether he stayed in the house

during that time or whether he left? Is that fair to say?

‘‘A. I guess. . . . That’s fair, so yes.

* * *

‘‘Q. . . . And I take it that’s not something that occurred to you when

you talked to [Detective Morrissey], that [the petitioner] might have left

[while you were upstairs] . . . ?

‘‘A. No. . . . I didn’t even think of that.

‘‘Q. . . . So, you just assumed he was home because you didn’t . . .

know any different?
‘‘A. [Yes].

‘‘Q. . . . But you didn’t see him at all during that bedtime procedure with

your son . . . ?

‘‘A. No. I did not. . . . I assumed he was home.

‘‘Q. . . . And you wouldn’t know, one way or the other?

‘‘A. No.’’

Contrary to the respondent’s contention, we believe that a jury readily

could conclude that it had never had occurred to Martin, until the state

presented the idea to her at the suppression hearing, that the petitioner had

slipped out of the house and, while Martin was upstairs getting their son

ready for bed, walked to the victim’s apartment, sexually assaulted and

murdered her, and set her apartment on fire, and then returned home before

Martin came downstairs, looking and acting no differently than when she

had seen him thirty to forty-five minutes earlier.

88 We note that, in support of his contention that the state’s case against

the petitioner was founded on ‘‘compelling evidence of guilt,’’ the respondent

quotes extensively from our statement of the facts in State v. Lapointe,

supra, 237 Conn. 696–702, in which we recited the facts that the jury reasonably could have found. It is apparent from even a cursory review of that

factual recitation that we set forth those facts in the light most favorable

to the state, even though the petitioner had made no claim of evidentiary

insufficiency. The petitioner’s direct appeal afforded us no opportunity to

assess the strength of the state’s case; because our current task is to determine the importance of the suppressed evidence in relation to the strength

of the state’s evidence at the petitioner’s criminal trial, we examine that

evidence objectively rather than in the light most favorable to the state.

See, e.g., Kyles v. Whitley, supra, 514 U.S. 441–54 (affording no deference

to government’s theory of guilt when reviewing original trial evidence to

determine materiality of Brady material); Tice v. Johnson, 647 F.3d 87, 110

(4th Cir. 2011) (‘‘[the court is] not bound . . . to view the facts in the light

most favorable to the prosecution’’).

89 At the petitioner’s criminal trial, the court allowed the petitioner to

introduce into evidence numerous articles from The Hartford Courant and

The Journal Inquirer, a Manchester newspaper, for the limited purpose of

establishing that, contrary to the state’s contentions, it was widely known

that, within days of the victim’s murder, the victim had been sexually

assaulted. Some of the articles contain information concerning a sexual

assault in the town of South Windsor and the similarities between that crime

and the victim’s murder. Merrill, a career criminal who was released from

prison one month before the victim’s murder, was immediately arrested for

the South Windsor sexual assault.In one ofthe articles, Merrill was described

by Edward Daily, a lieutenant and spokesperson for the Connecticut State

Police, as ‘‘ ‘one of the most evil men’ ’’ that Daily ever had encountered.

S. Jensen, ‘‘Police: ‘Peanut Butter Bandit’ No Joke,’’ Journal Inquirer, March

13, 1987, p. 18. According to the same article, Merrill was questioned in

connection with the victim’s murder because of the similarities between

the two crimes and their close proximity to one another. See id.

We note, in addition, that, in his first habeas petition; see footnote 17 of

this opinion; the petitioner alleged ineffective assistance of trial counsel on

the basis of their failure to utilize available evidence to raise a third-party

culpability defense. In support of this claim, the petitioner presented the

testimony of Paulette DeRocco, a Manchester resident, who stated that, on

March 9, 1987, the day after the murder, she contacted the police to inform

them that, at approximately 8 p.m. the night before, she and hertwo teenaged

children were driving past the victim’s apartment complex on their way

home when they saw a man running from the complex ‘‘like he was being

chased by a pack of dogs.’’ DeRocco had to slam on her brakes to avoid

hitting him. According to DeRocco, the man was wearing ‘‘dark . . . maintenance worker’s type clothes’’ and appeared ‘‘disheveled with [his] shirttail

partially out.’’ DeRocco told the police that she and her children watched

the man running down the street until he disappeared behind a building.

DeRocco contacted the police as soon as she heard about the victim’s

murder because she thought that there might be a connection between the

crime and the man she had seen fleeing the immediate vicinity of the crime

scene. According to DeRocco, when she and her children arrived home on

the night of the victim’s murder, ‘‘the sirens were going off’’ in town, and

she remembered thinking that it was strange that they would go off right

after she had observed someone so suspicious. The description that DeRocco

gave of the man she saw running from the victim’s apartment complex bore

no resemblance to the petitioner. DeRocco testified that the police took

her statement and asked her to review photographs of possible suspects,
but she was unable to identify anyone. The first habeas court rejected the

petitioner’s claim concerning his trial counsel’s failure to raise a third-party

culpability defense on the ground that DeRocco’s testimony was insufficient

to link the unidentified person to the victim’s murder. See Lapointe v.

Warden, supra, Superior Court, Docket No. CV-97-0571161. The petitioner

did not challenge this determination or any of the first habeas court’s other

determinations concerning the claims alleged in the first habeas petition on

appeal. We express no view with respect to the admissibility of this thirdparty culpability evidence at a new trial.

90 The respondent identifies a litany of other purportedly unusual and

suspicious conduct by the petitioner that the state argued at trial was evidence of his guilt, including the following: (1) the petitioner used King’s

front door rather than her back door when he went to use her telephone,

even though King’s back door was closer to the victim’s apartment; (2)

when the petitioner first used King’s telephone, he called Martin and Howard

rather than the fire department, even though, following the victim’s murder,

he told a police officer that he thought he smelled smoke while on his way

over to the victim’s apartment and that the door was warm to the touch;

(3) the petitioner told Howard that the back door was locked when he

arrived at the victim’s apartment, even though firefighters found it unlocked;

(4) the petitioner did not inform the first firefighter on the scene that the

apartment was ‘‘occupied by an elderly and sickly relation’’ but, instead,

yelled, ‘‘ ‘[t]his is it; this is the place’ ’’; (5) over the years, the petitioner

peppered the police with questions about the status of the investigation and

whether he was a suspect in the case; and (6) the petitioner testified that

he may have walked his dog a second time on the day of the murder and

allegedly told a family friend that he visited the victim several times on the

day of the murder. Suffice it to say that we do not believe that a jury would

necessarily find any of this conduct particularly odd or suspicious, even for

the average person, and would likely find it much less so for the petitioner,

a person who, by all accounts, is easily confused and does not perceive or

respond to things in the ordinary way.

91 The weakness of the state’s case is further demonstrated by the respondent’s reliance on the testimony of King, the victim’s neighbor, who, the

respondent argues, ‘‘testified that she had seen the petitioner walking his

dog near the victim’s apartment shortly after 7 p.m. on the day [of the

victim’s murder].’’ A review of the record reveals, however, that King did

not testify that she saw the petitioner walking his dog near the victim’s

apartment at 7 p.m. Rather, Lombardo testified that King told him, two

years after the murder, that she had seen the petitioner walking his dog at

7 p.m. King, however, at both the hearing on the petitioner’s motion to

suppress and at the petitioner’s criminal trial, strenuously denied ever telling

Lombardo any such thing. King stated that the only time she saw the petitioner on the day of the murder was when he came to her apartment to use

the telephone, first to call Martin and Howard, and then, a few minutes

later, to call the fire department.

The respondent’s reliance on such purported facts does not end with

King’s testimony. For example, the respondent contends that ‘‘the jury had

evidence, in the form of the results of psychological testing, that the petitioner may have been a person who: was overly sensitive to criticism;reacted

to even minor problems with anger and hostility; tended to externalize

blame; bore grudges and worked to get even with those he perceived to

have wronged him; and exhibited sexual deviation.’’ In support of this contention, the respondent cites the testimony of Anne M. Phillips, one of the

psychologists who examined the petitionerfollowing his arrest. See footnote

80 of this opinion. A review of Phillips’ testimony, however, reveals that it

provides no support for the respondent’s assertions. According to Phillips,

the test results at issue were the petitioner’s raw scores on the Minnesota

Multiphasic Personality Inventory (MMPI) test, an examination consisting

of 567 true orfalse questions that she administered to the petitionerfollowing

his arrest. Phillips explained that the computer program that scores the test

is designed to flag any potential areas of concern, regardless of whether

they are applicable to the test taker, and that it is the clinician who ultimately

determines their applicability. Phillips explained that the test does not take

into account the individual circumstances of the test taker, which bear

heavily on how the test results are interpreted by the test administrator.

For example, Phillips explained that a patient may score high on the depression scale, but, if the clinician knows that the test taker’s mother recently

died, the score is interpreted in light of the test taker’s grief related to that

loss. With respect to the petitioner, Phillips explained that it would be highly
unusual for a person, incarcerated for a crime that he says he did not commit

and facing a possible death sentence, not to score high on the anger or

paranoia scales. As for sexual deviancy, Phillips further explained that there

is only one question on the MMPI testthatrelates to sexuality, and the answer

is recorded under a category labeled ‘‘Sexual Concern and Deviation.’’ The

question is: ‘‘I wish I [was] not bothered by thoughts of sex.’’ Because the

petitioner answered ‘‘true’’ to this question, sexual concern or deviation

was flagged as a potential area of concern. Phillips stated that, on the basis

her follow-up discussions with the petitioner, she ruled out any problems

relating to sexual deviancy. Indeed, according to Phillips, the Megargee

typology section of the MMPI test, ‘‘a system developed for classifying

incarcerated inmates according to their degree of psychological disturbance,

their adjustment to incarceration, their propensity for impulsive and dangerous behavior, and the most appropriate form ofincarceration and treatment,’’

classified the petitioner ‘‘as . . . Type I . . . . which is . . . considered

to be the most stable and most benign of the ten Megargee profiles.’’ Phillips

explained that ‘‘it’s a profile that is an essentially normal one . . . . [I]ndividuals matching [this] . . . profile tend . . . not to be convicted [of]

crimes of an impulsively hedonistic nature, and their problems do not appear

to stem from difficulties in interpersonal adjustment or from psychopathology. Offenders matching this type tend to have a more ‘benign’ record

than other convicted felons. . . . There appears to be no pressing need for

psychological treatment and restrictive administrative management . . . .

Research supports the view that Type I inmates tend to adjust well to

prison and present few disciplinary problems.’’ According to Phillips, prison

officials rely on a prisoner’s Megargee typology in determining his or her

status as an inmate.