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LAPOINTE v. COMMISSIONER OF CORRECTION—FIRST DISSENT

ZARELLA, J., with whom ESPINOSA, J., joins, dissenting. Although I disagree with virtually all of the

majority’s analysis and conclusions, I write, in particular, to express my strong objection to the majority’s

creation and application of a new exception to our well

established standard ofreview, an exception that allows

this court to engage in a de novo review of live expert

testimony presented in a habeas proceeding. This new

standard is driven by the majority’s disagreement with

the habeas court’s1 credibility findings, which, if

allowed to stand, are fatal to the claims raised by the

petitioner, Richard Lapointe. The deferential clear error

standard of review that applies to credibility assessments in this context bars the majority from substituting

its own judgment for that of the habeas court; and the

record, which contains ample support for the habeas

court’s findings, prevents a finding of clear error. Hopelessly trapped between its unwillingness to accept the

habeas court’s findings and its inability to overturn them

under our clear error standard, the majority summons

down its deus ex machina: a singular exception to our

clear error standard of review, created just for this case

and those cases ‘‘indistinguishable’’ from this one, that

empowers the majority to reach its desired ending by

retrying in this court the credibility issues settled in

the habeas court. This court, however, is not a factfinding court, and we do not judge the credibility of

witnesses because we lack the constitutional authority

to do so. By making its own findings about the credibility of expert testimony, the majority exceeds the limits

of our jurisdiction and unjustifiably usurps the habeas

court’s role as fact finder, thereby turning the hearing

in that court into little more than an exercise in futility.

The habeas court proceeding is more than just a

conduit for logging the evidence, and that court’s findings represent more than a suggestion. The habeas court

is the sole trier of fact and assessor of credibility, with

the exclusive power to determine the credibility of the

testimony presented to it. See, e.g., Sanchez v. Commissioner of Correction, 314 Conn. 585, 604, 103 A.3d 954

(2014); Gaines v. Commissioner of Correction, 306

Conn. 664, 690, 51 A.3d 948 (2012). We consistently have

deferred to its exclusive role in this regard, properly

relegating our role to reviewing its fact and credibility

findings only to determine whether they find support

in the record. See, e.g., Sanchez v. Commissioner of

Correction, supra, 604.

This court’s power to draw conclusions of fact and

credibility is proscribed not only by practical considerations—unlike the trier, we do not receive evidence firsthand—but also by the limits of our constitutional function. For more than one century, this court has repeat-
edly recognized that it simply does not have the jurisdiction under our constitution to resolve disputed

questions of fact or to assess the credibility of testimony, irrespective of the nature of the claim or the

type of evidence presented to the trier of fact. Styles

v. Tyler, 64 Conn. 432, 442, 30 A. 165 (1894). The bifurcation of the Superior Court from the appellate level

courts leaves the Superior Court as the final arbiter of

fact disputes and limits our role to resolving questions

of law. Id., 444–47. Consequently, we lack jurisdiction

to resolve disputed questions of fact and credibility,

regardless of how this court may attempt to cast the

nature of its inquiry. Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 538, 129 A. 527 (1925). Adhering

to this principle, this court has repeatedly rebuffed suggestions by litigants—and even some judges of this

court—that we may substitute our judgment for that

of the trier of fact when the trier of fact has made

credibility findings after receiving and weighing the evidence. See, e.g., Skakel v. State, 295 Conn. 447, 487 n.25,

991 A.2d 414 (2010) (‘‘[t]his court . . . squarely has

rejected the proposition that a less deferential standard

than abuse of discretion should apply to review of decisions pertaining to evidence [even when such decisions

are] not predicated on an assessment of the witness’

demeanor’’).

By allowing this court to substitute its own judgment

for that of the habeas court on questions about witness

credibility, the majority has exceeded our jurisdiction.

Our law is clear that assessing new witness credibility

in the Strickland2 prejudice/Brady3 materiality context

presents a question of fact for the habeas court and

that, consistent with our jurisdictional limits, we defer

to its findings. See, e.g., Sanchez v. Commissioner of

Correction, supra, 314 Conn. 604, 611; Gaines v. Commissioner of Correction, supra, 306 Conn. 690–91. Our

constitution and case law simply do not permit this

court to usurp the primary and exclusive function of

the Superior Court. By granting itself a license to review

de novo the live expert testimony presented to the

habeas court, the majority has placed itself outside the

limits of our authority and installed itself as both the

trier and reviewer—a duality of power that this court

previously has labeled as ‘‘evil . . . .’’ Styles v. Tyler,

supra, 64 Conn. 449.

Compounding the impropriety of its analysis, the

majority has adopted a standard allowing it to find facts

even though neither party has asked this court to do

so. Because the majority has adopted its new standard

sua sponte, neither party had any notice or opportunity

to brief the propriety of such a standard. Furthermore,

neither party—most notably not even the petitioner—

has claimed that the habeas court’s credibility findings

were incorrect, so neither party has briefed the merits

of the credibility issues decided by the majority. Nevertheless, the majority has not asked the parties to provide
any supplemental briefing, leaving the majority to

engage in its new fact-finding role, which it has created

sua sponte, without any meaningful notice to or guidance from the parties, in violation of the principles

recently set forth in Blumberg Associates Worldwide,

Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn.

123, 128, 84 A.3d 840 (2014) (Blumberg).

Finally, although the majority arrogates to itself the

responsibility to make its own findings of fact and determinations of credibility, it ultimately proves unequal to

the task. Rather than expressing its own findings based

on its review of the record, the majority launches a

seemingly endless attack on the habeas court’s findings—an unnecessary exercise in light of the majority’s

self-created fact-finding power. Furthermore, in carrying out its purportedly de novo analysis of the record,

the majority utterly ignores testimony from the petitioner’s own expert witnesses and other evidence that

amply supports the habeas court’s findings and casts

serious doubt on the credibility of their testimony.

In short, although the majority goes out of its way

to retry the case, I am constrained merely to review it.

Deferring to the habeas court’s fact-finding role, my

own review of the record convinces me that its findings

were not clearly erroneous. In light of its findings that

the petitioner’s new evidence did not reliably establish

a burn time that supported the petitioner’s alibi defense,

I am persuaded that the petitioner has not met his

burden under Strickland and Brady.

My analysis in this opinion will proceed in three parts:

first, I address why the majority’s new standard for

reviewing the testimony of expert witnesses contravenes our law; second, I address why the majority’s

decision to decide issues that the parties have notraised

or briefed violates the principles in Blumberg; and,

third, I explain why the record supports the habeas

court’s findings, which leads to the conclusion that the

petitioner has failed to meet his burden under Strickland and Brady.

I

STANDARD OF REVIEW

The principal issue presented in this appeal concerns

the petitioner’s burden, under the prejudice/materiality

element of a Strickland or Brady claim, to prove the

credibility of new witness testimony, and the habeas

court’s role in determining whether a petitioner has

met that burden. Assessing credibility of new witness

testimony in the Strickland and Brady context requires

the habeas court to determine whetherthere is a reasonable probability that a new jury would credit the testimony, and it presents a question of fact that an appellate

tribunal reviews only for clear error. See, e.g., Sanchez

v. Commissioner of Correction, supra, 314 Conn. 604,

611. Although the habeas court in the present case
declined to find the petitioner’s new expert testimony

credible and denied the petitioner’s claim on that basis,

the Appellate Court did not acknowledge the habeas

court’s role in making credibility assessments. See

Lapointe v. Commissioner of Correction, 138 Conn.

App. 454, 476–77 n.17, 53 A.3d 257 (2012). Instead, the

Appellate Court decided that assessing the credibility

of new witnesses should be left entirely to a new jury,

and not the habeas court. Id. By determining that a jury,

and not a court, should assess credibility, the Appellate

Court effectively removed any requirementthatthe petitioner make a credibility showing as part of his Strickland and Brady claim. As a result, the Appellate Court

analyzed the petitioner’s claim by hypothesizing what

a jury could find, if it credited the new evidence. See

id., 476–78 and nn.17–20. The Appellate Court granted

the petitioner a new trial on the basis of the results of

this speculation. Id., 478, 480. The issue presented in

this appeal is whether the Appellate Court properly

concluded as it did.

The success of the petitioner’s Strickland claim—

which is based on his prior habeas counsel’s failure to

raise a Brady claim concerning the state’s failure to

disclose a certain note prepared by Detective Michael

Ludlow of the Manchester Police Department (Ludlow

note)—depends on the credit that may be afforded the

testimony of the petitioner’s expert witnesses. A finding

that this expert testimony was credible was necessary

if the petitioner was to have any hope of establishing

that the state’s failure to disclose the Ludlow note prejudiced him by preventing him from presenting a viable

alibi defense at trial. To demonstrate that he would

have been able to present such a defense, he relied on

the testimony of two expert witnesses to establish the

time period during which the fire that consumed the

apartment of the victim, Bernice Martin, likely started,

together with testimony of his former spouse, Karen

Martin, to establish that he was at home during that

same time period. To prove prejudice, the petitioner

needed to show a reasonable probability that a jury

would credit this expert testimony and that the new

credible testimony, when weighed against the original

trial evidence, gives rise to a reasonable probability of a

different result. A credible alibi defense, when weighed

against the trial evidence, certainly would support findings of prejudice under Strickland and materiality

under Brady. If, however, a jury was not reasonably

likely to credit the petitioner’s new alibi evidence, the

petitioner would have no valid evidence of the fire’s

start time, and his alibi claim would fail. Thus, without

a credible alibi defense, the petitioner could not demonstrate that his prior habeas counsel’s errors or the

state’s failure to disclose the Ludlow note caused him

any harm.4

At the petitioner’s habeas trial, the habeas court

heard testimony from five fire investigation experts: the
two experts who originally investigated the scene for

the state shortly after the fire; the two experts called

by the petitioner, and an expert called by the respondent,the Commissioner ofCorrection. The habeas court

did not credit the opinions of the petitioner’s experts,

finding that their testimony could not credibly establish

a burn time that was precise enough to support the

petitioner’s alibi claim. The court explained as follows:

‘‘The court . . . notes that it finds less credible the

attempts to provide more precise burn time estimations.

Given the complexity of fires and the many factors

or dynamics that impact a fire, a complexity which is

patently evident from the testimony of [the petitioner’s

and the respondent’s experts], it is impossible to establish with precision when the fire was set. Thus, the

more precise the estimate, the less credible the court

finds the opinion. What is clear from all the evidence

in the record, the original trial testimony, crime scene

photographs, reports, and the expert testimony presented to this 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

p.m. to [7] p.m. (fire could have been burning between

5:45 p.m. and 7:55 p.m.), when [Karen] Martin cannot

account for the petitioner’s whereabouts and does not

provide an alibi for him.’’ (Emphasis added.) The

habeas court’s finding that the petitioner’s burn time

evidence was not credible led it to conclude that the

petitioner had failed to meet his burden of proving his

claims under Strickland and Brady, and the habeas

court denied the habeas petition.

The Appellate Court reversed the judgment of the

habeas court and, in doing so, analyzed the petitioner’s

claim without acknowledging the habeas court’s role

in assessing credibility of new witness testimony in this

context. See Lapointe v. Commissioner of Correction,

supra, 138 Conn. App. 476–77 n.17. The Appellate Court

instead concluded that such an assessment must be left

to a new jury, not a court. Id. The Appellate Court

explained as follows: ‘‘If the Ludlow note had been

disclosed to trial counsel . . . 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.’’ (Emphasis

added.) Id. After so concluding, the Appellate Court

analyzed the case by hypothesizing about what a jury

‘‘could’’ find ‘‘[i]f’’ it credited the new testimony. Id.,

476, 477. For example, the Appellate Court stated: ‘‘At

the . . . habeas trial, the [petitioner’s] two experts

. . . testified that the fire could not have been set any

earlier than 7:30 p.m. If that testimony had been presented at the 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. . . . If the

jury credited Karen Martin’s testimony, it could have

concluded that the petitioner was at home watching

television with her and their son when the fire had been

set.’’ (Emphasis added; footnote omitted.) Id., 476–77.

The Appellate Court concluded by explaining: ‘‘With

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

fire marshals, [the petitioner’s criminal] trial counsel

testified that they would have retained the services of

an arson expert and that Karen Martin would have testified as to the petitioner’s whereabouts during the critical times of [the] evening [of the victim’s murder]. 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.’’ (Emphasis added.) Id., 479.

On the basis of its speculation, the Appellate Court

concluded that the petitioner was entitled to a new trial

because his evidence, if credited, would support his

alibi defense. Id., 479–80. Contrary to the majority’s

assertions, the Appellate Court did not analyze the

habeas court’s credibility findings; nor did it make its

own findings with respect to whether there was a reasonable probability that a jury would credit the new

testimony. See generally id., 468–80. Rather, it left any

credibility assessments to a jury, not a court, effectively

relieving the petitioner of any burden to establish the

credibility of his new witness testimony as part of his

claim based on Strickland and Brady.

5 See id.,

476–77 n.17.

The respondent appealed to this court upon our grant

of certification; Lapointe v. Commissioner of Correction, 307 Conn. 940, 940–41, 56 A.3d 948 (2012). The

respondent claims that the Appellate Court improperly

disregarded the habeas court’s role in assessing credibility and did not properly consider all of the evidence

in the record in considering the ultimate questions of

prejudice under Strickland and materiality under

Brady. Contrary to the majority’s view, neither of the

parties has claimed that the Appellate Court performed

its own, de novo credibility assessment. Rather, both

the respondent and the petitioner agree that the Appellate Court left the credibility issue to a new jury, not

a court. Specifically, the respondent argues that, by

leaving the credibility assessment of new witness testimony to a jury, the Appellate Court improperly disregarded the habeas court’s role as fact finder and arbiter

of credibility in habeas proceedings, and improperly

reached its decision on the ultimate issues of materiality

and prejudice by ‘‘speculating on the basis of what

‘could have’ happened ‘if’ certain evidence had been

believed.’’ (Emphasis omitted.) The respondent cites

cases holding that mere conjecture or speculation is

not sufficient to demonstrate prejudice and argues that,

‘‘[i]n saying that jurors could have reached a conclusion

if they believed certain testimony, the Appellate Court
said no more than that this was possible or conceivable’’

and thus did not base its materiality decision on ‘‘that

which was reasonably probable in light of the habeas

court’s finding regarding credibility and the entirety of

the evidence [in the] record,’’ as the Strickland/Brady

standard requires.6

In response, the petitioner acknowledges the respondent’s claim that the Appellate Court

improperly decided that the credibility issue was ‘‘a

jury issue’’ and argues that it was not up to the habeas

court to decide whether to credit his experts, each of

whom was qualified to render an opinion.

The majority affirms the judgment of the Appellate

Court but takes a much different approach than the

Appellate Court did, an approach that neither party has

requested and that the Appellate Court did not employ.

Rather than analyzing the case by assuming that the

jury would credit the evidence, as the Appellate Court

did, the majority concludes that an appellate tribunal

must make its own findings about the credit that may

be given to the petitioner’s new expert testimony, a

standard of review that has no precedent in our law.

Although the majority acknowledges the deference we

owe to the fact-finding role of the habeas court, including in the Strickland/Brady context, it decides that no

such deference is warranted in the present case because

the ‘‘highly unusual’’ circumstances of this case require

a ‘‘limited exception’’ to that rule. According to the

majority, we defer to fact and credibility findings of the

habeas court when those findings are ‘‘made on the

basis of [the] firsthand observation of [a witness’] conduct, demeanor and attitude.’’(Internal quotation marks

omitted.) Text accompanying footnote 40 of the majority opinion. The majority then explains, however, that,

when a finding is not based on those factors, this court

is as well suited as the habeas court to assess the testimony of the petitioner’s experts and, therefore, may

evaluate that testimony de novo, without any deference

to the findings of the habeas court. The majority, of

course, fails to cite any authority from this state for

this proposition because none exists—this court has

never performed such a review, and it has uniformly

rejected the notion that it could do so. In resolving

disputed issues of credibility by making its own findings

on the basis of its own assessment of the testimony

and evidence presented to the habeas court, the majority has not just reviewed, but has retried the habeas

case in this court. I emphatically disagree with the

majority’s decision to fashion a new standard of review

just for this case.

A

Until today, our case law was clear that determining

whether a jury is reasonably likely to credit new witness

testimony in the Strickland/Brady context presents a

question of fact for the habeas court, not a new jury,

and most assuredly not for an appellate tribunal. Our
review is limited to determining whether the habeas

court’s findings are reasonable in light of the record.

This issue is not a question of law, and we do not

substitute our judgment for that of the habeas court by

reviewing the habeas court’s credibility findings de

novo.

At the outset, I note that I agree with the majority

when it states, as it must, that the Strickland prejudice

standard is identical to the Brady materiality standard,

and that the respective roles of the habeas and

reviewing courts are the same under both standards.

See, e.g., State v. Dupigney, 295 Conn. 50, 60–63, 988

A.2d 851 (2010). I will therefore analyze the principles

that apply to these claims together and, for simplicity,

will refer to the standard as the ‘‘Strickland/Brady prejudice’’ standard.

The Strickland/Brady prejudice standard presents a

mixed question of law and fact. To prove prejudice, a

defendant must establish that, in the absence of the

substandard performance of defense counsel or the

state’s suppression of exculpatory evidence, there is a

‘‘ ‘reasonable probability’ ’’ that the result of the criminal trial would have been different. United States v.

Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d

481 (1985); accord Strickland v. Washington, 466 U.S.

668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Resolving the ultimate question of prejudice requires a court

to consider or weigh the new or different evidence—

which was not presented at the original trial because

of counsel’s orthe state’s actions or omissions—against

the original trial evidence to determine the likelihood

of a different result. See, e.g., Adams v. Commissioner

of Correction, 309 Conn. 359, 373, 71 A.3d 512 (2013).

We exercise plenary review over the ultimate question

of whether the defendant suffered prejudice, which

requires an application of the legal standard to the facts.

See, e.g., Bryant v. Commissioner of Correction, 290

Conn. 502, 510, 964 A.2d 1186, cert. denied sub nom.

Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L.

Ed. 2d 242 (2009); State v. Ortiz, 280 Conn. 686, 720,

911 A.2d 1055 (2006).7 When, however, the historical

facts supporting the defendant’s claim are disputed,

the resolution of these underlying disputes presents a

question of fact for the habeas court, which we review

only for clear error. See, e.g., Bryant v. Commissioner

of Correction, supra, 509; State v. Ortiz, supra, 720.

We defer to the trier’s resolution of these underlying

disputes unless it is shown to be clearly erroneous.

Bryant v. Commissioner of Correction, supra, 509;

State v. Ortiz, supra, 720.

Although the ultimate question of prejudice focuses

on the impact that the new evidence might have on the

original trial evidence, determining whether there is

a reasonable probability of a different outcome also

requires some threshold finding that the new evidence
is credible—after all, if new evidence is not worthy of

belief, it cannot lead to a different result at a new trial.

To be sure, some cases do not present such credibility

issues. For example, suppose the state withheld an

exculpatory report by a government officerthat appears

to contradict testimony that the officer gave at trial. If

the parties stipulate to the authenticity and content of

that report, there are no threshold fact or credibility

disputes to be resolved, and the habeas court need only

consider the impact of that report on the original trial

evidence, an analysis that is subject to de novo review

by an appellate court.

Frequently in Strickland cases, though less often in

Brady cases, the new evidence is testimony from a lay

or expert witness who was not called at the original

trial. When, as in the present case, the petitioner claims

that his counsel or the state deprived him of the opportunity to present certain testimony, the petitioner has

the burden of proving that the testimony is credible.

Sanchez v. Commissioner of Correction, supra, 314

Conn. 598–601, 604. If the testimony is not credible,

then it cannot support a finding of prejudice under

Strickland or Brady. See id., 611–13.8

This threshold issue of whether new testimony may

be credited in this context—whether lay or expert testimony—presents a question of fact for the habeas court

to resolve.9 The habeas court, as the trier of fact in

habeas proceedings, must assess the credibility of the

new testimony, considering it together with other evidence and testimony presented to the habeas court, to

determine whether there is a reasonable probability

that a new jury would credit the new testimony.10 See,

e.g., id., 604, 611–12. The habeas court—with its unique

ability to receive the new testimony and evidence firsthand and to consider it in the context in which it was

presented—is unquestionably in the best position to

perform this credibility analysis.11 After all, the habeas

court is the only court hearing the petitioner’s claims

and the only one that can assess the new evidence in

the same manner as a jury would.

When assessing a habeas court’s fact and credibility

findings, including in the context of Strickland and

Brady claims, our role as an appellate tribunal is limited. We do not undertake our own de novo review of

the habeas court’s findings; rather, we review them

under our well established clear error standard. We

have often explained: ‘‘The habeas court is afforded

broad discretion in making its factual findings, and

those findings will not be disturbed unless they are

clearly erroneous. . . . Thus, [t]his court does not

retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of

fact’s] assessment of the credibility of the witnesses

based on its firsthand observation of their conduct,

demeanor and attitude. . . . The habeas judge, as the
trier of facts, is the sole arbiter of the credibility of

witnesses and the weight to be given to theirtestimony.’’

(Internal quotation marks omitted.) Id., 604; see also

Adams v. Commissioner of Correction, supra, 309

Conn. 368–69 n.14 (noting, in context of Brady claim,

our ‘‘well established standard of review’’ requiring this

court to defer to habeas court’s findings unless they

are clearly erroneous). Furthermore, our cases also

demonstrate that we deferto the habeas court’s findings

regardless of whether that court credits or rejects the

testimony of a petitioner’s new witnesses. See, e.g.,

Gaines v. Commissioner of Correction, supra, 306

Conn. 688, 690 (upholding decision to grant new trial

when habeas court found new alibi testimony to be

‘‘credible and compelling’’). When reviewing for clear

error, we will reverse the trial court’s or habeas court’s

findings ‘‘only in the clearest of circumstances, [when]

its conclusion could not reasonably be reached.’’ (Internal quotation marks omitted.) Ventres v. Goodspeed

Airport, LLC, 275 Conn. 105, 125, 881 A.2d 937 (2005),

cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d

664 (2006). ‘‘We do not examine the record to determine

whether the trier of fact could have reached a conclusion other than the one reached.’’ Pandolphe’s Auto

Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d

24 (1980). An appellate tribunal may not reject a finding

‘‘merely because the reviewing judges personally disagree with the conclusion or would have found differently had they been sitting as the [fact finder].’’ Kaplan

v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982).

The majority, and the Chief Justice in her concurring

opinion, both suggest that we may treat our review of

this credibility assessment differently from a review

of credibility findings made at a trial because, in this

context, the habeas court is rendering a probabilistic

judgment about how a jury might assess certain evidence. This is incorrect.

Although determining how a jury might assess testimony requires some measure of a predictive judgment,

we recently—and unanimously—made clear that this

assessment is no different from any other credibility

assessment and is entitled to the same deference by a

reviewing court. In a decision penned by the author of

the majority in this case and released on December

2, 2014, we explained that determining whether it is

reasonably probable that a jury would credit new witness testimony presents a question offactforthe habeas

court that we review only for clear error. Sanchez v.

Commissioner of Correction, supra, 314 Conn. 611–12

and n.16; see id., 611 (upholding denial of habeas petition based on new witness testimony because ‘‘perhaps

mostimportant, the habeas court concluded that a jury

was unlikely to have found [the new witness] credible,

and we agree with the Appellate Court that the habeas

court’s finding in this regard [was] not clearly erroneous’’ [emphasis added]). Unlike the majority’s decision
in the present case, we did not, in Sanchez, draw our

own conclusions about the credibility of the new witness testimony. See id., 602 n.12, 611–12 and n.16. We

made clear that the habeas court’s role in determining

whether a jury might credit new evidence is no different

from a traditional credibility analysis and that we will

defer to the habeas court’s resolution of this issue. See

id., 604, 611–12 and n.16; see also id., 602 n.12.

Assessing credibility requires the habeas court to

approach its analysis neutrally, as a second jury would,

without considering the new testimony in a manner

favorable to either party, and it must consider all of

the evidence presented. See id., 611 n.16 (‘‘we . . . presume, in the absence of any indication to the contrary,

that the [habeas] court considered all of the evidence

when assessing [the new witness’] credibility’’). This

includes the attitude, candor and demeanor of the witnesses.12 Id., 604. Just as with any other credibility analysis, the habeas court must consider the credibility of

the new testimony in light of impeachment evidence

and any other testimony or evidence presented to the

court.13

Contrary to the majority’s position, we do not alter

our standard of review, even when the petitioner’s

claims are based on new expert testimony. See Anderson v. Commissioner of Correction, 313 Conn. 360,

375, 380–81, 98 A.3d 23 (2014), cert. denied sub nom.

Anderson v. Semple, U.S. (83 U.S.L.W. 3678,

February 23, 2015). In Anderson, this court deferred to

the habeas court’s credibility assessments of new

expert testimony even though the habeas court did not

expressly base its findings on the experts’ demeanor.

Id., 371–72, 377–80 and nn.7–8.In doing so, we disagreed

with the conclusions of a dissenting Appellate Court

judge who had reviewed de novo the credibility of the

petitioner’s new expert testimony. See id., 373–74 n.5.

The petitioner in that case, Oscar Anderson, challenged

his conviction of first degree sexual assault and risk of

injury to a child. See id., 362–63. Anderson claimed that

his trial counsel rendered ineffective assistance by not

presenting medical records and expert testimony to

show that he suffered from one or more sexually transmitted diseases (STDs) during the time period that the

assaults occurred, and expert testimony on the transmission rates of STDs. Id., 362. Anderson argued that

this testimony and evidence, coupled with the victim’s

lack of any STD during the relevant time period, would

establish that he was prejudiced by his trial counsel’s

failure to present this evidence. See id., 373. At the

habeas hearing, Anderson presented the testimony of

Timothy Grady, an expert witness. Id., 366–69. Grady

testified that Anderson’s medical records showed that

he was treated for STDs several times during the period

when the assaults allegedly occurred and that, under

the circumstances of the case, there was a 40 percent

chance of Anderson transmitting an STD to the victim
during each act of intercourse. Id.; see also id., 379 n.8.

Grady admitted, however, that there were no positive

lab results to demonstrate that Anderson was infected

with an STD during the relevant period but that Grady’s

assessments were based on the fact that Anderson had

been treated in a hospital’s emergency department for

STD related symptoms. See id., 366–67.

The respondent in Anderson also presented expert

testimony on this subject. Id., 369–70. The respondent

called Stephen Scholand, a physician, who testified that

other ailments that Anderson suffered from could be

responsible for his STD related symptoms. Id., 369.

Scholand also testified that, even if Anderson had an

STD, that there was only a 30 percent chance of transmitting it from adult to adult during each act of intercourse. Id.

The habeas court found that Anderson’s expert testimony lacked a sufficient factual foundation to establish

that he suffered from any STD during the relevant time

period. See id., 371–72. That court determined that,

without any test results to support Anderson’s claims of

an STD when the assaults occurred, his expert evidence

could not credibly prove that he suffered from an STD

at that time. See id. The habeas court also concluded

that, even if Anderson had demonstrated that he had

an STD during the relevant time period, there was only

a 30 percent chance of transmission, implicitly rejecting

the opinion of Anderson’s expert that the rate would

have been higher under the circumstances. See id., 372.

On the basis of these findings, the habeas court rejected

Anderson’s claims. See id., 372–73.

On appeal, a dividedAppellateCourt affirmed.Anderson v. Commissioner of Correction, 128 Conn.App. 585,

598, 17 A.3d 1138 (2011). The Appellate Court majority,

relying on the habeas court’s findings, upheld that

court’s decision that Anderson’s evidence fell short. See

id., 597–98 and n.7. Judge Borden, in dissent, thought,

however, that Anderson had met his burden under

Strickland. See id., 598–99 (Borden, J., dissenting). In

analyzing the prejudice element, Judge Borden relied

on Anderson’s proffered expert testimony regarding his

STD related symptoms and the transmission rate of

STDs, which the habeas court had found to be not

credible. See id., 616–17 (Borden, J., dissenting). Specifically, Judge Borden asserted that Anderson ‘‘was suffering from’’ STDs during the relevant time period. Id.,

610 (Borden, J., dissenting). He also explained that ‘‘the

jury would have had Grady’s testimony, contrary to

Scholand’s, that there is a transmission rate of 40 to 50

percent for each sexual contact between an infected

male and a woman, and an even higher rate for a female

of the age of the victim,’’ even though the habeas court

did not credit this evidence but, rather, concluded that

the evidence showed only a 30 percent chance of transmission. Id., 616–17 (Borden, J., dissenting). Rather
than confining his analysis to the habeas court’s findings, Judge Borden disregarded the habeas court’s findings and relied on testimony that the habeas court had

not credited.

In a certified appeal to this court, Anderson argued

that the Appellate Court majority improperly had

decided the case against him. See Anderson v. Commissioner of Correction, supra, 313 Conn. 362. In his arguments, Anderson, consistent with Judge Borden’s

reasoning, repeatedly relied on the evidence that the

habeas court had found to be not credible, namely, that

he was infected with one or more STDs and that the

transmission rate would have been 40 percent or higher.

See Anderson v. Commissioner of Correction, Conn.

Supreme Court Records & Briefs, February Term, 2013,

Petitioner’s Brief pp. 22–25.

In response, the respondent took issue with Anderson’s and Judge Borden’s reliance on testimony that

the habeas court had not credited. The respondent

argued that ‘‘[Judge Borden] improperly assumed that

it is reasonably probable that the jury would have found

Grady’s testimony and interpretations of the medical

records to be credible and reliable when the fact finder

. . . did not.’’ Id., Respondent’s Brief p. 19. The respondent explained in his brief that ‘‘[a]n appellate court

cannot retry the case or evaluate the credibility of the

witnesses. . . . Rather, [it] must defer to the [trier of

fact’s] assessment of the credibility of the witnesses

based on its firsthand observation of their conduct,

demeanor and attitude. . . . The habeas [court], as the

trier of facts, is the sole arbiter of the credibility of

witnesses and the weight to be given to theirtestimony.’’

(Internal quotation marks omitted.) Id. The respondent

argued that Judge Borden’s dissent contravened this

well established standard of review because Judge Borden ‘‘wholeheartedly credited, and essentially deferred

to, the opinions and interpretations of [Anderson’s]

expert,’’ which the habeas court did not credit. Id.,

pp. 19–20. The respondent further explained that ‘‘[a]

reviewing court cannot simply choose to find credible

particular evidence that the trier of fact itself did not

credit and [that] is inconsistent with the trier’s ultimate

findings and conclusions.’’ Id., p. 20. In support, the

respondent noted that determining prejudice on the

basis of new witness testimony is ‘‘not simply . . . an

evaluation of the legal sufficiency of that evidence’’ but

also requires an evaluation of ‘‘the overall credibility

and persuasiveness of that evidence . . . .’’ Id. Consistent with our case law, the respondent went on to

explain that this credibility assessment is for the habeas

court to make, not a reviewing court: ‘‘[O]nly the habeas

court heard and considered all of the evidence . . . .

Unlike a reviewing court, the habeas court is able to

view the evidence as it is presented, including the

demeanor of the witnesses, and, thus, the habeas court

is in a far better position to appreciate how a jury is
likely to hear and process that evidence . . . .’’ (Citation omitted; emphasis in original; internal quotation

marks omitted.) Id. The respondent acknowledged that

a petitioner’s evidentiary burden is lowerin this context

than in an ordinary criminal trial, at which proof beyond

a reasonable doubt is required, or in a civil trial, at

which proof by a preponderance of the evidence is

required. See id., pp. 20–21. Nevertheless, the respondent explained that ‘‘the fact that the degree of proof

is different does not mean that the proper roles of the

habeas court and appellate court vis-a ́-vis the credibility, weight and ultimate persuasiveness of the evidence

differ’’ in this context because ‘‘[the] habeas court is

still in [a] position superior to an appellate court to

make such an evaluation . . . .’’ (Emphasis in original.)

Id., p. 21. In conclusion, the respondent argued that

‘‘the habeas court, sitting in a position similar to that

of the jury hearing the evidence, refused to accept, at

face value, the opinion of [Anderson’s] expert and his

interpretation of the records. . . . [T]he habeas court

was in a far better position than [Judge Borden] to view

the demeanor of the experts and the confidence and

certainty with which they rendered their opinions. Consequently, to the extent that [Judge Borden’s] conclusions rely heavily—indeed, almost entirely—on [his]

deference to Grady’s testimony, [Judge Borden] fails

to give proper consideration to the limits of appellate

review in evaluating the reasonable probability that

such evidence would have persuaded the jury to [find

Anderson not guilty].’’ Id.

This court affirmed the judgment of the Appellate

Court. Anderson v. Commissioner of Correction, supra,

313 Conn. 384. We did not adopt the approach that

Judge Borden had taken and we disagreed with his

conclusions. See id., 378 n.7, 380 n.9. In our decision,

we set forth the habeas court’s findings; id., 371–72;

and cited our well established standard of review that

‘‘[t]he habeas [court], as the trier of facts, is the sole

arbiter of the credibility of witnesses and the weight to

be given to their testimony.’’ (Internal quotation marks

omitted.) Id., 375. In our analysis, we upheld the habeas

court’s finding that Anderson’s evidence failed to establish that he suffered from an STD during the time period

that the assaults occurred. Id., 377–78 and n.7. We

expressly disagreed with Judge Borden’s conclusion to

the contrary, and, in response to his arguments, we

cited the habeas court’s findings that contradicted his

conclusion. Id., 378 n.7. Furthermore, we also decided

that, ‘‘[e]ven if [it were] assume[d] that [Anderson] was

suffering from nonspecific [STDs] during the relevant

time frame . . . Scholand’s testimony established that

there was only a 30 percent chance that the victim

would have acquired [an STD] from the alleged abuse.’’

(Footnote omitted.) Id., 378–79. In reaching this conclusion, we expressly deferred to the habeas court’s findings in this regard, noting that the habeas court had
the opportunity to view the testimony of the experts

firsthand. Id., 379 n.8. Thus, contrary to the approach

taken by Judge Borden, and consistent with the respondent’s arguments, this court did not substitute its judgment for that of the habeas court regarding the credibility of Anderson’s proffered expert testimony.

The majority’s decision to adopt an exception to our

well established standard of review, especially in light

of Anderson and Sanchez, marks a significant departure

from the approach that we have taken in reviewing

Strickland and Brady claims and from our role as an

appellate tribunal.

B

Even though the majority acknowledges the deference that we give to a habeas court’s credibility assessments, stating that it ‘‘agree[s] fully’’ that ‘‘the general

rule is one of deference, even in cases involving claims

under Brady,’’ the majority has decided not to follow

this rule in the present case. The majority proclaims,

without citing a single Connecticut case, that we can

undertake a de novo review of the credibility of expert

testimony ‘‘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 novel standard, which neither party has asked us

to adopt and which even the majority concedes has no

basis in our law, is wholly incompatible with our case

law and our limited role as an appellate tribunal.

1

The majority contends that we may render our own

credibility findings when the habeas court’s findings

were based on the ‘‘scientific underpinnings’’ of the

expert’s testimony and not the demeanor or ‘‘personal

credibility’’ of the expert witness. Our case law does

not draw such an unworkable distinction because it

ignores the realities of judging credibility. When we

speak of credibility, we do not refer only to a witness’

personal character but to the broader question of

whether the witness’ testimony may be believed and

given evidentiary weight. Evaluating 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. E.g., Wyatt

Energy, Inc. v. Motiva Enterprises, LLC, 308 Conn.

719, 737, 66 A.3d 848 (2013) (‘‘[c]redibility must be

assessed . . . not by reading the cold printed record,

but by observing firsthand the witness’ conduct,

demeanor and attitude’’ [internal quotation marks omitted]). Separating the ‘‘substance’’ of oral testimony from

the mannerin which it is communicated ignores the fact
thatthe meaning and import of spoken words depend on

the manner in which the spoken words are relayed, and

not just their substance. This is precisely why, when it

comes to live testimony, ‘‘it is inappropriate to assess

credibility without having watched a witness testify,

because demeanor, conduct and other factors are not

fully reflected in the cold, printed record.’’ (Internal

quotation marks omitted.) Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).

In assessing new witness credibility in the Strickland/

Brady prejudice context, our law thus requires that the

trial court observe the testimony of the new witness

firsthand to consider the witness’ demeanor while he

or she testifies. See, e.g., Thomas v. Commissioner of

Correction, 141 Conn. App. 465, 472–73, 62 A.3d 534

(habeas court must have opportunity to observe testimony of petitioner’s new witnesses to evaluate their

credibility in determining Strickland/Brady prejudice),

cert. denied, 308 Conn. 939, 66 A.3d 881 (2013); Townsend v. Commissioner of Correction, 116 Conn. App.

663, 668, 975 A.2d 1282 (upholding denial of habeas

petition when petitioner did not present testimony of

new exculpatory witness, ‘‘which the habeas court

properly found was insufficient to show prejudice

because there was no opportunity to evaluate the testimony or credibility of the claimed witness’’), cert.

denied, 293 Conn. 930, 980 A.2d 916 (2009).

Judging credibility is a complex process that requires

the trier to consider the testimony in light of all of the

evidence presented in a case, including othertestimony.

It requires consideration of not only the witness’ candor, demeanor and attitude, but also any factors that

the trier deems relevant to its decision, which can

include, but is certainly not limited to: the witness’

ability to observe and comprehend information; the

beliefs, prejudices, bias and assumptions that might

impact the witness’ perspectives; the witness’ ability to

accurately recall events; the plausibility of what the

witness relays; the internal consistency of the witness’

testimony and consistency with other testimony and

evidence; and the witness’ background, training, education and experience. See, e.g., State v. Reddick, 153

Conn. App. 69, 79 n.6, 100 A.3d 439, appeal dismissed,

314 Conn. 934, 102 A.3d 85 (2014), and cert. denied, 315

Conn. 904, 104 A.3d 757 (2014); State v. Guess, 44 Conn.

App. 790, 805, 692 A.2d 849 (1997), aff’d, 244 Conn. 761,

715 A.2d 643 (1998); State v. Nieves, 36 Conn. App. 546,

549, 653 A.2d 197, cert. denied, 232 Conn. 916, 655 A.2d

260 (1995); State v. Jaynes, 35 Conn. App. 541, 553–54

n.7, 645 A.2d 1060, cert. denied, 231 Conn. 928, 648 A.2d

880 (1994).

Judging credibility is no different with expert witnesses, and attempting to distinguish between decisions

based on the ‘‘substance’’ of expert testimony and those

based on the expert’s demeanor is just as unworkable.

Because of the nature and purpose of expert testimony,
subjective factors, including attitude, candor and

demeanor, play just as great of a role in the evaluation

of an expert witness’ credibility. Our law allows expert

opinion testimony to be admitted only when its subject

matter is beyond the ordinary knowledge, comprehension and experience of the average fact finder. See, e.g.,

State v. George, 194Conn. 361, 373, 481A.2d 1068 (1984),

cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d

968 (1985). Thus, when considering expert testimony,

the jury is evaluating testimony about subject matter

that is outside of its knowledge, which puts the jury at

a disadvantage when it comes to sizing up the soundness of the expert’s scientific foundation and conclusions. When faced with conflicting expert testimony,

the jury necessarily lacks firsthand knowledge with

which to assess the soundness of the expert’s methodology and opinions. Consequently, in deciding whether

to credit an expert’s testimony, a fact finder often must

rely more heavily on subjective factors. As a result, our

law recognizes the importance of demeanor evidence

as a tool for evaluating an expert witness’ credibility.

‘‘Expert testimony is considered, weighed and tested

like any other evidence.’’ Aspiazu v. Orgera, 205 Conn.

623, 634, 535 A.2d 338 (1987); see also State v. Joly, 219

Conn. 234, 243, 593 A.2d 96 (1991) (‘‘the fact that a

witness testifies as an expert does not compel the

acceptance of his or her testimony as true’’). ‘‘It is in

the sole province of the trier of fact to evaluate expert

testimony, to assess its credibility, and to assign it a

proper weight.’’ State v. Jarzbek, 204 Conn. 683, 706,

529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108

S. Ct. 1017, 98 L. Ed. 2d 982 (1988). In assessing expert

testimony, the trier considers subjective factors, such

as the demeanor of the expert, as well as other factors,

including the expert’s level of expertise, the reasonableness of how the expert reached the opinion, and the

factual and scientific basis for the opinion: ‘‘The trier

of fact [is] . . . entitled to consider the basis of the

testimony of the expert witness. In so doing it might

weigh, as it [sees] fit, his expertise, his opportunity to

observe [data] and to form an opinion, and his thoroughness. It might consider also the reasonableness of his

judgments about the underlying facts and of the conclusions [that] he drew from them.’’ State v. Perez, 182

Conn. 603, 610, 438 A.2d 1149 (1981); see also id., 609

(‘‘[t]he trier of fact was entitled to find that the crossexamination of [the expert witness] showed his testimony to be inadequately grounded in knowledge of the

defendant’s condition, medical data, and expertise of

interpretation’’). ‘‘The acceptance or rejection of the

opinions of expert witnesses is a matter peculiarly

within the province of the trier of fact and its determinations will be accorded great deference by this court.’’

(Internal quotation marks omitted.) Johnson v. Healy,

183 Conn. 514, 515–16, 440 A.2d 765 (1981). ‘‘The credibility and the weight of expert testimony is judged by

the same standard [as that used to evaluate lay witness
testimony], and the trial court is privileged to adopt

whatever testimony [it] reasonably believes to be credible. . . . On appeal, [this court does] not retry the facts

or pass on the credibility of witnesses.’’ (Internal quotation marks omitted.) United Technologies Corp. v. East

Windsor, 262 Conn. 11, 26, 807 A.2d 955 (2002); see

also Connecticut Bank & Trust Co. v. Incendy, 207

Conn. 15, 34, 540 A.2d 32 (1988).

The scope of our review on appeal does not change

according to our perception of the basis for the trier’s

credibility findings. Because the trier must consider all

of the evidence before it when making its credibility

findings, including the witness’ demeanor, it is impractical, if not impossible, for the trier—or this court—to

neatly categorize or separate credibility findings on the

basis of a witness’ demeanor from those derived from

the basis for the witness’ opinions. Given the complexity of a credibility analysis, the innumerable factors that

a trier considers, and the complete discretion afforded

the trier to weigh these factors, it would be unreasonable to require the trier to enumerate each and every

basis for its finding by describing every factor that it

considered and the weight it accorded to it. For these

reasons, we do not require the trial court to state every

conceivable rationale for its credibility findings; we

require only that the trial court state its ultimate finding

of fact on the record. See Practice Book § 64-1. Even

if a trial court chooses to enumerate certain reasons

for its credibility findings, we still do not vary our scope

of our review on the basis of those reasons because it

is inevitable that the court considered other evidence

not expressly identified in its decision. Rather, we presume that the trier considered all of the evidence in

making its findings, and we review them only for clear

error. See Sanchez v. Commissioner of Correction,

supra, 314 Conn. 611 n.16; Gaines v. Commissioner of

Correction, supra, 306 Conn. 690–91. As a result, our

standard of review does not change even when the trial

or habeas court does not cite witness demeanor as a

reason for its credibility findings. See Sanchez v. Commissioner of Correction, supra, 611–12; Anderson v.

Commissioner of Correction, supra, 313 Conn. 372,

377–80 and nn.7–8.

Our case law belies the majority’s claim to the contrary. For example, in Sanchez, we upheld the denial

of a habeas petition when the habeas court found that

the new witness testimony was not likely to be credited

by a jury. See Sanchez v. Commissioner of Correction,

supra, 314 Conn. 611–12. The habeas court, in making

its credibility finding, explained only that the witness

had a criminal record and ‘‘a motive to be deceptive

. . . .’’ (Internal quotation marks omitted.) Id., 601. Neither of these factors related to the witness’ demeanor.

The witness’ criminal history was an objective factor

that was reflected in the record. With respect to the

witness’ ‘‘motive to be deceptive’’; (internal quotation
marks omitted) id.; we explained that this stemmed

from the fact that others had implicated the witness in

the crime in question, giving the witness a reason to

minimize his own involvement when testifying before

the habeas court. See id., 611–12. This, too, was

reflected in the printed record. See id. The habeas court

said nothing about the witness’ demeanor, nor did it

state that it relied on any other subjective factors in

deciding not to credit the testimony. See id. Thus, we

presumably were in just as good a position as the habeas

court in that case to assess the witness’ credibility.

Nevertheless, unlike the majority’s opinion in the present case, we deferred to the trial court’s assessment,

as our law requires, and noted that we presume that

the court considered all of the evidence in making its

finding, not just its enumerated reasons. Id., 611 n.16.

We did not conduct a de novo review of the witness’

credibility, and we did not suggest that our standard

of review could change depending on the trial court’s

stated basis for a credibility finding.

Even in cases involving new expert testimony in the

Strickland/Brady prejudice context, this court and the

Appellate Court apply a deferential standard of review

without pausing to consider whether the habeas

court’s findings were based on the credibility of the

expert’s opinion or the expert personally. See, e.g.,

Anderson v. Commissioner of Correction, supra, 313

Conn. 372, 377–80 and nn.7–8 (deferring, in Strickland

prejudice analysis, to habeas court’s decision not to

credit petitioner’s new expert testimony about disease

transmission rates); Francis v. Commissioner of Correction, 142 Conn. App. 530, 540 n.5, 66 A.3d 501

(upholding denial of habeas petition and deferring, in

context of Strickland prejudice determination based

on new expert testimony, to habeas court’s finding that

that testimony was unreliable), cert. denied, 310 Conn.

921, 77 A.3d 141 (2013). The majority has not cited a

single case in which we changed our standard of review

because of the stated basis for the trier’s credibility

findings, and it cannot do so because we have never

made such an unworkable distinction.

Moreover, because we cannot review live testimony

firsthand, as the trier can, we are unable to consider

factors such as attitude, candor and demeanor. Kaplan

v. Kaplan, supra, 186 Conn. 391; see Sanchez v. Commissioner of Correction, supra, 314 Conn. 611–12.

Thus, when it comes to credibility issues, we are in a

worse position than the habeas court, and, by making

our own findings, we would be substituting our judgment for that of the habeas court, even though our

judgment is based on only part of the evidence. The

truth is, we can never be in the same position as the trier

with respect to oral testimony and can never perform a

truly de novo review on the basis of all of the evidence,

as we require the trier to do.14 Our review is therefore

limited to testing the legal sufficiency of those findings
by assessing whether they are reasonable in light of the

record. See, e.g., Sanchez v. Commissioner of Correction, supra, 611–12 and n.16; Anderson v. Commissioner of Correction, supra, 313 Conn. 375, 377–80 and

nn.7–8; see also Ventres v. Goodspeed Airport, LLC,

supra, 275 Conn. 125.

The facts of this case also contradict the majority’s

attempted distinction. The majority claims that the

habeas court’s credibility assessments were based

solely on the ‘‘soundness’’ of the experts’ opinions and

not on the demeanor or personal credibility of any witness. This simply is not true. Because we do not require

our trial or habeas courts to articulate each and every

factor considered and the basis fortheir credibility findings, we do not know the extent to which the habeas

court in the present case considered demeanor in making its findings; the habeas court was silent on this.

Because we must presume that the habeas court considered all of the evidence before it, including the

demeanor of the witnesses; see Sanchez v. Commissioner of Correction, supra, 314 Conn. 611–12 n.16; we

must presume that the habeas court based its findings,

at least in part, on the demeanor and candor of the

petitioner’s witnesses and the demeanor and testimony

of any other witnesses who testified before the court.

To be sure, it is possible that the habeas court found

that an expert’s demeanor weighed in favor of crediting

the expert’s testimony. But, given the habeas court’s

silence, it is not possible for us to say either that the

habeas court did not consider witness candor, attitude

and demeanor, or that it did not base its findings on

these factors. Indeed, if it were true that the habeas

court did not consider the witnesses’ demeanor and

personal characterin considering the credibility of their

testimony, then the habeas court would have been acting improperly. We, of course, do not presume error;

we presume that the habeas court considered these

factors in the absence of a clear indication to the contrary, which the habeas court did not give in this case.

Assessing the credibility of the petitioner’s expert

witnesses also required the habeas court to consider

the credibility of other witnesses who testified at the

habeas hearing. The majority claims that the habeas

court’s assessment was ‘‘not dependent on any underlying factual findings requiring the . . . court’s firsthand

observation and determination of the credibility orreliability of other witnesses.’’ Yet, the habeas court heard

evidence that the conclusions of one of the petitioner’s

experts, John DeHaan, directly conflicted with the eyewitness observations of Stephen Igoe, another fire

expert who, unlike the petitioner’s experts, investigated

the actual fire scene in person and within hours of

the fire. The habeas court noted that, as part of Igoe’s

investigation, he conducted a test burn of the materials

in the couch where the fire was supposedly ignited

and principally burned.15 He determined that the couch
materials burned ‘‘very, very slowly . . . .’’ Despite

Igoe’s testimony before the habeas court about his firsthand observations of the materials involved in the fire,

the petitioner’s expert, DeHaan, who was not present

at the fire scene, disagreed with Igoe’s observations.

Although DeHaan did not inspect the actual fire scene

or the materials in the couch, and did not conduct a

test burn, he based his burn time estimate on a contrary

conclusion that the couch burned ‘‘very rapidly.’’

Assessing the soundness of DeHaan’s opinion that the

fire burned very rapidly therefore required the habeas

court to evaluate the credibility of Igoe’s contrary observation that the fire burned very slowly. Thus, the habeas

court’s findings necessarily depended on ‘‘underlying

factual findings requiring the . . . court’s firsthand

observation and determination of the credibility orreliability of other witnesses.’’

Because the trier must consider all evidence when

making credibility findings, it is not possible to separate

those findings based on the soundness of an expert’s

opinion from those based on an assessment of the

expert personally. The majority thus attempts to draw

a dichotomy that is not grounded in reality and is not

supported by our law or the facts of this case. If the

majority nevertheless wants to draw this contrived distinction, then the appropriate remedy in this circumstance is to order an articulation from the habeas court

rather than to make assumptions based on the habeas

court’s silence, which tells us nothing when we have

never previously required the habeas court to speak on

this matter or given any significance to this silence.

2

Even if it were possible to distinguish between credibility findings based on an expert’s demeanor and those

based on the substance of the testimony, our law still

forbids a de novo review of such credibility findings by

this court. In support of its new standard, the majority

proclaims that we ‘‘need not, and will not,’’ defer to the

trial court on any issue ‘‘when we are in as good a

position as the trial court to decide the issue . . . .’’

Text accompanying footnote 63 of the majority opinion.

But this court has never before embraced such a sweeping principle, and we certainly have not accepted it as

a valid excuse to retry a case by making our own findings from the record. To the contrary, this court has

repeatedly rejected this tired suggestion because it is

inconsistent with the constitutional limits on our role

as an appellate tribunal. See, e.g., Styles v. Tyler, supra,

64 Conn. 442. For example, we have determined that

we cannot make our own credibility assessments, even

when the trial court’s assessment was based on a video

recording of a witness’ statement that we could view

in the same manner as the trial court. See Skakel v.

State, supra, 295 Conn. 470, 486–87 and n.25. In Skakel,

the author of the majority opinion in the present case,
in dissent, posited that there was ‘‘no occasion for . . .

deference’’ to the trial court’s credibility determination

when it was based on the viewing of a video recording

and thus not otherwise based on subjective factors,

including the witness’ demeanor. Id., 631 (Palmer, J.,

dissenting). The majority rejected this assertion, noting

that ‘‘this court . . . squarely has rejected’’ the notion

that we may apply a less deferential standard of review

even to a credibility decision ‘‘that is not predicated on

an assessment of the witness’ demeanor.’’ Id., 487 n.25.

We have also uniformly rejected this notion in other

contexts. For instance, in State v. Lawrence, 282 Conn.

141, 156–57, 920 A.2d 236 (2007), we declined to undertake a de novo review of a trial court’s credibility determination that was based on that court’s review of a

printed transcript, rather than an in-court assessment

of the witness’ testimony. Although the defendant in

Lawrence claimed that deference to the trial court’s

findings was unwarranted ‘‘because the trial court did

not have the opportunity to observe [the witness’] conduct, demeanor and attitude on the witness stand’’; id.,

156; we declined to adopt this approach as it ‘‘misapprehends the fundamental distinction between the function

of the fact finder, which is to make credibility determinations and to find facts, and the function of the appellate tribunal, which is to review, and not to retry, the

proceedings of the trial court.’’ (Internal quotation

marks omitted.) Id. We explained that, ‘‘[i]n light of

our limited function, it would be improper for this

court to supplant its credibility determinations for

those of the fact finder, regardless of whether the fact

finder relied on the cold printed record to make those

determinations.’’ (Emphasis added.) Id., 157. In Besade

v. Interstate Security Services, 212 Conn. 441, 562 A.2d

1086 (1989), we rejected a claim that this court need not

defer to a trial court’s findings, even when the evidence

before the court was ‘‘largely documentary’’ and the

findings were not based on ‘‘a personal appraisal’’ of

any live testimony. Id., 448; see id., 449 (‘‘[w]e have

not heretofore distinguished between documentary and

testimonial evidence in defining the role of appellate

tribunals in reviewing findings of fact’’).

Even in the context of expert testimony, this court

has consistently declined to adopt a less deferential

standard of review when the trial court’s findings were

based solely on the substance of the expert testimony

and documentary evidence, not on witness demeanor.

See, e.g., Pandolphe’s Auto Parts, Inc. v. Manchester,

supra, 181 Conn. 221–22 (noting that our review of fact

and credibility findings is limited to clear error review,

and, ‘‘[b]eyond that, we will not go’’). And over onehalf century ago, we explained in Morgan v. Hill, 139

Conn. 159, 90 A.2d 641 (1952), that ‘‘[t]he case [on

appeal] presents another of countless instances [in

which] an unsuccessful litigant, still unconvinced,

renews in this court his previous, fruitless effort to
discredit the evidence submitted by his opponent. Nothing in our law is more elementary than that the trier is

the final judge of the credibility of witnesses and of the

weight to be accorded their testimony. . . . It was the

prerogative of the [trial] referee to accept the testimony

of the plaintiff’s experts rather than that offered by

the defendant’s.’’ (Citations omitted; emphasis added.)

Id., 161.

3

We defer to the trial court’s findings even when

demeanor is not at issue because the reasons for our

deference are not limited to practical considerations

alone. Even though we often cite, as the reason for

our deference, a trial court’s unique ability to assess

evidence firsthand and in the context in which it is

presented, our scope of review is mandated by the constitutional limits on our appellate jurisdiction, which

prohibit this court from resolving disputed questions

of fact or determining the credit that may be given to

a witness’ testimony.16 Since this court’s inception, its

jurisdiction has been limited to reviewing issues of law,

whereas jurisdiction to resolve issues of fact and credibility has been vested exclusively in the trial court.

See, e.g., Styles v. Tyler, supra, 64 Conn. 444–50. This

division of responsibility is not merely for convenience;

it is intended to prevent the ‘‘evil’’ that would result

from having a single court act as final arbiter of issues

of fact in addition to issues of law. Id., 446, 449. Prior

to the creation of this court, the Superior Court acted

as the court of last resort for issues of fact, whereas the

legislature held the powerto finally resolve questions of

law. Id., 446. The legislature created the Supreme Court

of Errors in 1784; id.; and its ‘‘jurisdiction was confined

to questions of law arising upon facts found by the

Superior Court [which is] the court of last resort for all

matters of fact.’’ Id., 447. This separation intentionally

paralleled the ‘‘distinction as drawn under our system

of jurisprudence . . . between facts that the trial court

must find from the testimony, and the application of

the principles of law in reaching a judgment based [on]

such facts.’’ Id., 454.

The founders of our state’s judicial system divided

the jurisdiction of our courts to ensure that no single

court could act as the final arbiter for both issues of

fact and issues of law, which they feared could destroy

the rule of law: ‘‘[T]he administration of justice is not

safe when the court of last resort for the settlement of

the law, in the exercise of an absolute and final power,

can render judgment on the facts and law so intermingled that its decision is not simply the declaration of

the law but may become the arbitration of the case.’’

Id., 449. Vesting one court with jurisdiction to finally

decide matters of fact and law will leave the results in

our cases to the discretion of judges who can choose

both the facts and the law that will govern a case, and
‘‘nothing but . . . human wisdom and firmness on the

part of its judges can prevent a court exercising such

. . . jurisdiction from eventually becoming one great

arbitration that would [e]ngulf all the courts of law,

and sovereign discretion [not the principles of law]

would be the rule of decision.’’ (Internal quotation

marks omitted.) Id. Such an expansive ‘‘discretion of a

judge is the law of tyrants; it is always unknown; it is

different in different men; it is casual, and depends [on]

constitution, temper and passion. In the best, it is [often

times] caprice; and in the worst, it is every vice, folly,

and passion to which human nature is liable!’’ (Internal

quotation marks omitted.) State v. Danforth, 3 Conn.

112, 122 (1819). Thus, ‘‘confining the jurisdiction of

[this] court . . . to the settlement of rules of law’’ alone

was ‘‘[t]he most significant feature in the establishment

of the court’’; Styles v. Tyler, supra, 64 Conn. 447; and

reflected ‘‘a principle deemed vital to our judicial system.’’ Id., 448.

Mindful of these concerns, the drafters of the 1818

constitution adopted the existing divide between the

jurisdiction of the Superior Court and the Supreme

Court of Errors. See id., 449–50; see also Conn. Const.,

art. V, § 1. In doing so, they ‘‘expressed the conviction

of the people that a jurisdiction of mixed law and fact

vested in any court of last resort, exercising a supreme

and uncontrolled power, was inconsistent with a sound

system of jurisprudence and was dangerous to the

administration of justice . . . .’’ Styles v. Tyler, supra,

64 Conn. 451. The Superior Court thus holds ‘‘supreme

jurisdiction’’ to try cases and settle disputes of fact,

whereas the Supreme Court of Errors, which subsequently became this court, holds ‘‘supreme and final

jurisdiction’’ to settle issues of law. Id., 450. This court

thus ‘‘is not a supreme court for all purposes, but a

supreme court only for the correction of errors in law

. . . .’’ Id. Accordingly, ‘‘it is the exclusive province of

the trial court to judge . . . the credi[bility] of witnesses.’’ Dexter Yarn Co. v. American Fabrics Co.,

supra, 102 Conn. 539.

The constitutional limits on fact-finding and assessing

credibility cannot be circumvented merely by rebranding the nature of our inquiry, as the majority attempts

to do in the present case. ‘‘[S]ettling the credi[bility] of

witnesses, weighing the evidence, ascertaining the truth

from conflicting or incongruous evidential facts, is a

function within the exclusive jurisdiction of the trial

court under our system of law, and is not reviewable

by [this court]. . . .

‘‘Our jurisdiction cannot be enlarged, to permit the

retrial of facts by us, by legislative enactment or rules

of court . . . and obviously not by the consent or

acquiescence of the parties. [When] an appeal involves

a request for the correction of a finding . . . by a

weighing of the evidence, it is patent that the real sub-
stance of such a proceeding is nothing but a retrial of

pure questions of fact settled by the final judgment of

the Superior Court. Its actual nature cannot be changed

by calling it a correction of the finding.’’ (Citations omitted; internal quotation marks omitted.) Id., 537–38; see

also Thresher v. Dyer, 69 Conn. 404, 410, 37 A. 979

(1897); Atwater v. Morning News Co., 67 Conn. 504,

525–27, 34 A. 865 (1896). ‘‘A [retrial on] the testimony

. . . by whatever name it may be called, is a trial of

the facts in that cause, whether its effect be limited to

ordering a new trial, or extends to the rendition of

a final judgment on the facts so adjudicated; and is

inconsistent with the primary distinction drawn by the

[c]onstitution, between the jurisdiction original and

appellate of courts for the full trial and adjudication of

causes, and the jurisdiction of a court of last resort for

correcting errors in law which may have intervened in

the course of a trial. . . . The Superior Court is the

court of last resort for such purpose. . . . Such a principle embedded in the [c]onstitution . . . cannot be

evaded through any plan for accomplishing by a mere

form of words the very evils it was adopted to prevent.’’

(Emphasis added.) Atwater v. Morning News Co.,

supra, 526–27. Consequently, ‘‘there can . . . be no

doubt but that the determination by this court, upon

the evidence, of questions of pure fact, for the mere

purpose of rendering its own judgment upon issues of

fact, is inconsistent with [this court’s] jurisdiction, and

clearly obnoxious to that underlying principle which

holds the security of the citizen and the certainty of

the law as best served by confining the supreme and

uncontrolled power vested in a court of last resort for

the correction of errors to the determination of principles of law.’’ Styles v. Tyler, supra, 64 Conn. 456.17

The jurisdictional limits that prevent us from

assessing credibility do not relax, even when a defendant’s claim implicates rights guaranteed by the federal

constitution. Although we have explained that we have

a duty to scrupulously review the record in reviewing

a constitutional claim, we have made clear that this

review does not allow this court to engage in its own

credibility assessments: ‘‘Notwithstanding our responsibility to examine the record scrupulously, it is well

established that we may not substitute our judgment

for that of the trial court when it comes to evaluating

the credibility of a witness. . . . It is the exclusive

province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting

some, all or none of any given witness’ testimony. . . .

Questions of whether to believe or disbelieve a competent witness are beyond our review. As a reviewing

court, we may not retry the case or pass on the credibility of witnesses.’’ (Internal quotation marks omitted.)

State v. DeMarco, 311 Conn. 510, 519–20, 88 A.3d 491

(2014)(deference in context ofreviewing fourth amendment claim); see also Sanchez v. Commissioner of Cor-
rection, supra, 314 Conn. 604, 606 (deference in context

of reviewing Strickland claim); State v. Krijger, 313

Conn. 434, 447–48, 97 A.3d 946 (2014) (deference in

context of reviewing first amendment claim); State v.

Mullins, 288 Conn. 345, 365, 952 A.2d 784 (2008) (deference in context of reviewing fifth amendment selfincrimination claim); State v. Santiago, 245 Conn. 301,

312–13, 715 A.2d 1 (1998) (deference in context of

reviewing Brady claim).

Contrary to the Chief Justice’s assertions in her concurring opinion, our deference to the trier’s role as the

arbiter of credibility does not depend on whether the

trier is making ‘‘ultimate’’ credibility findings, and we

have never changed our standard of review on this

basis. The Chief Justice suggests, and the majority

agrees, that we need not defer to the trial court when

it is not acting as the ‘‘ultimate’’ fact finder but is merely

assessing the probability that a jury will credit testimony. This contrived distinction appears nowhere in

our law, which presumably explains why neither the

Chief Justice nor the majority has offered any citations

to support it. Indeed, we rejected this attempted distinction in the Strickland/Brady context just months ago

in Sanchez v. Commissioner of Correction, supra, 314

Conn. 585, a unanimous decision in which every member of the panel in the present case joined. In Sanchez,

we indicated that there was no difference between our

treatment of an assessment of whether a jury would

likely credit new witness testimony and our treatment

of a traditional credibility finding. See id., 602 n.12,

611–12 and n.16. In doing so, we expressly agreed with

the Appellate Court majority’s rejection of Judge Sheldon’s suggestion in his dissenting opinion in the Appellate Court that we could review this assessment de

novo.18 Id.

Furthermore, we do not engage in de novo credibility

assessments even in other, similar contexts requiring

a predictive judgment about how a jury might weigh

testimony. For example, we defer to the trial court’s

assessment of new witness credibility in the context

of claims for a new trial based on newly discovered

evidence, which also require a trial court to assess the

likelihood that a jury will credit the new testimony and

reach a different result than that reached at the original

criminal trial. See, e.g., Shabazz v. State, 259 Conn. 811,

827–28, 792 A.2d 797 (2002); see also Adams v. State,

259 Conn. 831, 842, 792 A.2d 809 (2002) (‘‘[i]n deciding

a petition for a new trial . . . the trial court sits as fact

finder in place of the jury and examines the newly

discovered evidence independently, in order to determine whether it is likely to result in a different verdict

in the event of a retrial’’). Even though newly discovered

evidence claims do not require what the Chief Justice

deems to be an ‘‘ultimate’’ finding but, rather, an assessment of how a jury might evaluate new evidence, we

do not substitute our judgment for the trial court’s judg-
ment. This is true even when the new evidence is of a

type that does not call for any firsthand assessment of

demeanor such that we could evaluate the evidence in

the same manner as a trial court. See Skakel v. State,

supra, 295 Conn. 487 n.25 (video-recorded statement

from witness).

Claims for prejudgment remedies also require a trial

court to consider the probability that a party will succeed, which includes a predictive assessment of how

a jury might gauge witness credibility. See, e.g., TES

Franchising, LLC v. Feldman, 286 Conn. 132, 137–38,

143, 943 A.2d 406 (2008). A prejudgment remedy proceeding requires a trial court ‘‘ ‘to determine probable

success’ ’’ by the moving party; id., 142; and is ‘‘not

contemplated to be a full scale trial on the merits

. . . .’’ Id., 143. Even though the trial court’s credibility

assessments in these proceedings are merely probabilistic, we review them only for clear error. Id. (‘‘judging

the credibility of the witnesses is the function of the

trier of fact and this court will not usurp that role’’

[internal quotation marks omitted]); see also Augeri v.

C. F. Wooding Co., 173 Conn. 426, 428, 378 A.2d 538

(1977) (noting that we defer to trial court’s credibility

findings even though prejudgment remedy proceedings

do not ‘‘ultimately’’ decide parties’ claims).19

Accordingly, the long-standing limits on our jurisdiction require that ‘‘[w]e must accept . . . the trial

court’s decision [on] the question of credibility. It is

beyond our province to weigh evidence and decide

questions of this character.’’ Swist v. Swist, 107 Conn.

484, 487, 140 A. 820 (1928). We repeatedly have

explained, in a variety of contexts, that ‘‘[a]n appellate

court must defer to the trier of fact’s assessment of

credibility . . . .’’ (Internal quotation marks omitted.)

State v. Lawrence, supra, 282 Conn. 155. ‘‘The evaluation of the credibility of witnesses is left to the sound

discretion of the trial court.’’ State v. Jones, 193 Conn.

70, 80, 475 A.2d 1087 (1984). ‘‘We cannot retry the facts

or pass [on] the credibility of the witnesses.’’ (Internal

quotation marks omitted.) Pandolphe’s Auto Parts, Inc.

v. Manchester, supra, 181 Conn. 220. ‘‘[N]othing in our

law is more elementary than that the trier is the final

judge of the credibility of witnesses and of the weight

to be accorded their testimony.’’ (Internal quotation

marks omitted.) Kervick v. Silver Hill Hospital, 309

Conn. 688, 717, 72 A.3d 1044 (2013). ‘‘In light of our

limited function, it would be improper for this court to

supplant its credibility determinations for those of the

fact finder,’’ even if the basis for those findings is

reflected in ‘‘the cold printed record . . . .’’ State v.

Lawrence, supra, 157.20

4

The majority, attempting to justify its new standard,

quotes at length from a case from another jurisdiction,

but that case is entirely inapposite because we have
already squarely rejected the principle underlying its

holding. Given the overwhelming authority from this

state expressly rejecting the principles underlying the

majority’s new standard, it is no surprise that the majority seeks support, not from a Connecticut case, but

from a single case from an intermediate appellate court

in Indiana, namely, Bunch v. State, 964 N.E.2d 274

(Ind. App.), trans. denied, 971 N.E.2d 1215 (Ind. 2012).

But whether appellate courts in Indiana can review the

credibility of expert testimony de novo says nothing

about whether a Connecticut appellate court can do

so, especially in light of the restraints imposed by our

state constitution. Also, contrary to the majority’s assertion that the Indiana case is ‘‘factually and procedurally

indistinguishable,’’ the portion of the case that the

majority cites at length does not even involve a Brady

or Strickland claim but an Indiana state law claim for

a new trial based on newly discovered evidence. Id.,

288–89, 293–97. The court in Bunch applied a de novo

standard of review because it felt it was in as a good

a position as the trial court to decide credibility on the

basis of a review of transcripts of new witness testimony presented live to the trial court when the trial

court’s assessment was not based on witness

demeanor.21 See id., 293. We rejected this principle in

Skakel when we held that this court could not perform

a de novo credibility review of newly discovered evidence, even when the trial court’s analysis did not

involve a firsthand assessment of witness demeanor.

Skakel v. State, supra, 295 Conn. 487 n.25 (declining to

conduct de novo review of findings concerning witness’

video-recorded statement because we do not vary our

scope of review even for findings ‘‘not predicated on

an assessment of the witness’ demeanor’’). We have

also made clear that credibility assessments of new

witness testimony in the context of newly discovered

evidence claims cannot be made by reviewing a printed

transcript of a witness’ testimony. Adams v. State,

supra, 259 Conn. 844 (credibility of newly discovered

evidence ‘‘must be decided on the basis of the trial

court’s own assessment of credibility, not on the type

of cold transcript utilized by the trial court’’); cf. State

v. Lawrence, supra, 282 Conn. 156–57. If we cannot

make credibility judgments even when the trial court

bases its assessment on a video recording or a printed

record, it is preposterous to conclude that we may do

so when, as in the present case, the court based its

findings on live testimony. The majority, justifying its

reliance on Bunch, explains that newly discovered evidence claims require ‘‘exactly the same analysis as

claims under Brady and Strickland, as they entail the

same considerations.’’ Text accompanying footnote 62

of the majority opinion. Given this acknowledgment by

the majority, it seems to me that we should look to our

own law on newly discovered evidence claims, which

rejects the majority’s approach, rather than to rely on

a lone case from another state to justify a new standard
of review for this case.22

5

The majority’s creation of its new standard carries

with it the danger of unwarranted expansion of appellate powers. In support of its new standard, the majority

sweepingly proclaims that an appellate tribunal ‘‘need

not, and will not,’’ defer to a trial court on any issue

whenever ‘‘we are in as good a position as [that] court

to decide the issue . . . .’’ Text accompanying footnote

64 of the majority opinion. It does so without any citation or attempt to reconcile this statement with our

prior decisions and constitutional principles, all of

which expressly reject this assertion. See, e.g., Anderson v. Commissioner of Correction, supra, 313 Conn.

375, 377–80 and nn.7–8; Skakel v. State, supra, 295 Conn.

487 n.25; State v. Lawrence, supra, 282 Conn. 156–57.

Relying on this principle, the majority suggests that we

can review credibility assessments de novo whenever

this court deems itself as fit as the trial court to do so.

Based on the majority’s assertions that its new standard

applies to the type of predictive fact-finding characteristically reserved for Brady claims, it applies at least to

new witness testimony in the context of Strickland,

Brady and newly discovered evidence claims, and perhaps also to prejudgment remedy proceedings. In light

of the number of Strickland, Brady and newly discovered evidence claims based on new witness testimony,

the majority’s new standard would increase the burden

on our appellate tribunals and litigants by requiring

them to retry issues settled by the habeas court. Under

the majority’s new standard, appellate courts would

have not only the ability, but also the duty to undertake

a de novo review of witness credibility when the criteria

for applying the majority’s new standard are met. This

new standard would require our appellate courts to

make their own credibility findings whenever the

habeas court does not base its decision on subjective

factors, like candor or demeanor. It would also require

litigants to retry these issues in our appellate courts by

briefing factual disputes in addition to the legal issues.

If the appellate tribunal can make its own credibility

findings in this context, the habeas court’s purpose in

these cases will be relegated to little more than receiving and recording the evidence, and then issuing a recommended ruling forthe appellate tribunal to mull over,

accept or cast aside, as it sees fit.

Recognizing the dangers associated with the new

standard it applies in this case, the majority immediately

sets out to contain the damage done by trying to prevent

its application in future cases. The majority acknowledges that we must deferto the trier’s credibility assessments but nevertheless asserts that its holding is but a

narrow exception to our ordinary standard of review.

The majority acknowledges that its approach is unprecedented in our law but claims that this is because ‘‘we
previously have not had a case on all fours with this

one.’’ Text accompanying footnote 61 of the majority

opinion. It characterizes its new standard as a ‘‘limited

exception’’ necessitated by the ‘‘uncommon’’ and

‘‘highly unusual’’ circumstances of the present case, and

explains that it will apply only in the ‘‘rare’’ cases that

are ‘‘indistinguishable in any material respect from this

one.’’ But the majority does not explain exactly what

makes this case so exceptional. Nor does it explain

why this case requires us to depart from decades of

cases explaining that credibility is a matter for the trier

without regard to the purported basis for the trier’s

findings. Moreover, the majority does not square its

claim that the holding in this case is limited with its

broad pronouncement that we will perform a de novo

review of any issue whenever we deem ourselves to

be in as good a position as the trial court to do so—a

principle that we heretofore have rejected unequivocally. If it is true that we may review any question de

novo whenever we deem ourselves to be as well situated

as the trial court, how can the majority simultaneously

claim that its holding in this case is limited to the facts

of this case? Why is this case so exceptional?

II

REVIEWABILITY

The majority’s decision to undertake a de novo review

of witness credibility injects issues into the case that

have not been raised or briefed by the litigants, which

ordinarily requires us to allow the parties to submit

supplemental briefing on before we go sifting through

the record in orderto make our own credibility findings.

The majority, on its own initiative, has changed our law

by adopting a de novo review of credibility findings and

has proceeded to undertake that review even though

neither party raised any arguments in this court or in

the Appellate Court with respect to the habeas court’s

credibility findings, and neither party has asked us to

change our standard of review to allow this court to

conduct its own credibility assessments. As a result,

neither party has weighed in on the propriety of the

majority’s new standard of review or the underlying

fact and credibility disputes that the majority resolves.

The principal issue actually raised in the present case

is one of law. It concerns the petitioner’s burden to

establish the credibility of new evidence in order to

prove Strickland/Brady prejudice and the habeas

court’s role in determining whether the petitioner has

met that burden. Although the habeas court did not

credit the petitioner’s expert testimony, the Appellate

Court decided that credibility of the new witnesses

should be left to a new jury, not to the habeas court,

a conclusion that the respondent has challenged on

appeal to this court. None of the parties discussed,

either in their briefs or at oral argument, whether an

appellate tribunal can make its own credibility assess-
ments. The arguments in this courtregarding the proper

legal standard assumed the propriety of leaving credibility assessments entirely to a new jury, and focused on

the extent of the habeas court’s role in judging new

witness credibility and the standard by which the

habeas court should determine whether a new jury

should hear the new testimony at a new trial.

In addition, despite the habeas court’s decision not

to credit the burn time evidence from the petitioner’s

experts, the petitioner did not raise any claim attacking

those findings before the Appellate Court or before this

court. The respondent noted the absence of any such

claim in his brief to this court and at oral argument,

and the petitioner did not object to these repeated assertions. Indeed, in his brief to the Appellate Court, the

petitioner agreed with the habeas court’s conclusion

that his evidence could not credibly establish the fire’s

burn time to a degree that would bolster his alibi

defense. The habeas court concluded as follows: ‘‘What

is clear from all the evidence in the record, the original

trial testimony, crime scene photographs, reports, and

the expert testimony presented to [the habeas] court

[concerning] 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 p.m. to [7]

p.m. (fire could have been burning between 5:45 p.m.

and 7:55 p.m.), when [Karen] Martin cannot account

for the petitioner’s whereabouts and does not provide

an alibi for him.’’ (Emphasis added.) The petitioner,

tracking the habeas court’s language, agreed, stating

‘‘it is true that the experts could not determine the

exact amount of time the fire burned’’ and that ‘‘the

fire’s burn time could not be precisely determined . .

. .’’ (Emphasis added.) Rather than attacking the habeas

court’s findings, the petitioner has instead argued that

the Appellate Court properly concluded that it is up to

a jury, not the habeas court, to determine whether to

credit his experts, each of whom was qualified to render

an opinion. Accordingly, neither party has raised any

claim of error based on the habeas court’s credibility

findings. Nor has either party suggested that an appellate court should make its own credibility assessments.

Failure of a party to raise a claim on appeal results

in abandonment. See, e.g., State v. Cyrus, 111 Conn.

App. 482, 487, 959 A.2d 1054 (2008), aff’d, 297 Conn.

829, 1 A.3d 59 (2010). In the absence of any challenge

to the habeas court’s credibility findings, or any argument by the parties that we should make our own findings, the issues that the majority decides are not

properly before this court. See, e.g., State v. Crumpton,

202 Conn. 224, 231–32, 520 A.2d 226 (1987).

To dampen the criticism that it receives from the

dissenting justices for deciding unraised issues, the

majority declares that the issues it decides were already

decided by the Appellate Court and thus are not new
to this appeal. To that end, the majority repeatedly

asserts that the Appellate Court performed its own de

novo assessment of the credibility of the petitioner’s

new expert testimony and that the Appellate Court rendered its own finding that there was a reasonable probability that a jury would credit it. The majority quotes at

length from the Appellate Court’s decision but missing

from its quotation is any de novo assessment of the

‘‘soundness’’ of the expert testimony or credibility findings by the Appellate Court. The majority has not provided its readers the courtesy of a citation to what page

or pages this review and these findings appear in the

Connecticut Appellate Reports. The fact is, the Appellate Court did not perform its own de novo credibility

assessment, nor did it make its own findings.

Any question on this point is dispelled by a fair reading of the Appellate Court’s decision. Absent from the

Appellate Court’s decision is any mention that it is

undertaking a de novo review of the credibility of expert

testimony. Nor does the Appellate Court give any justification for such a review. Given that such a review by

an appellate tribunal in this state would be unprecedented, at least until today, it would be surprising forthe

Appellate Court to sail into uncharted waters without at

least warning its readers that it is doing so. Also missing

from the Appellate Court’s decision are any findings

resulting from its purported de novo credibility review.

Instead, the Appellate Court repeatedly conditioned its

prejudice analysis by stating that the petitioner’s evidence, ‘‘if believed by the jury,’’ could lead to a different

result. (Emphasis added.) Lapointe v. Commissioner

of Correction, supra, 138 Conn. App. 479; see also id.,

476–77. I, for one, would expect that, if the Appellate

Court were performing its own unprecedented de novo

review of witness credibility, it would at least state its

findings on the record, as ourtrial courts are required to

do. Rather than making its own findings, the Appellate

Court stated that assessing the credibility of the expert

witnesses was a task best left to a 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.’’ (Emphasis added.) Id., 476–77 n.17. Furthermore, neither party argued in the Appellate Court that

it should be performing its own de novo credibility

review. Nor did the parties brief the issue of whether

such a review by an appellate tribunal would be appropriate. As I previously mentioned, the petitioner did not

challenge the habeas court’s findings, but, instead, the

parties argued over the proper standard to be applied

by the habeas court.

In light of these statements by the Appellate Court,
I simply do not agree with the majority’s conclusion

that the Appellate Court performed its own credibility

assessment.By leaving the credibility question to a jury,

the Appellate Court freed any court considering the

petitioner’s Strickland/Brady claim of any need to

inquire into the credibility of the expert testimony or

the need to make any findings of its own. Deciding that

a jury and not a habeas court should assess credibility

in this context is markedly different from deciding that

an appellate tribunal may do so. Both the habeas court

and a jury properly may serve as the trier of fact and

arbiter of credibility, whereas an appellate tribunal,

except for the majority in the present case, may not.

Consequently, the considerations that are needed to

resolve these two issues are wholly distinct. I thus disagree that the Appellate Court would undertake such

an unprecedented review without even stating that it

was doing so or attempting to justify such an analysis.

Because neither party has claimed, eitherin this court

or the Appellate Court, that an appellate tribunal can

properly make its own credibility assessments, or that

the Appellate Court in this case did so, we have no

briefing from the parties concerning whether such an

analysis by an appellate tribunal is proper. The lack

of a de novo review by the Appellate Court, and any

suggestion by the parties that such a review is proper,

is fatal to the majority’s claim that the parties raised and

briefed arguments about the propriety and the merits of

such a review by an appellate tribunal. Neither party

has briefed the issue of whether an appellate tribunal

may properly render its own credibility findings in this

context. The lack of any argument on this issue stands

in stark contrast to the briefing in Anderson, in which

the respondent expressly argued that an appellate tribunal could not render its own credibility findings, a position that we ultimately followed in that case. Instead,

the respondent argues in this case precisely what I have

explained in this opinion, namely, that the Appellate

Court improperly disregarded the habeas court’s role,

left the credibility assessment to a jury, and then

reached its materiality determination by ‘‘speculating

on the basis of what ‘could have’ happened ‘if’ certain

evidence had been believed. . . . In saying that jurors

could have reached a conclusion if they believed certain

testimony, the Appellate Court said no more than that

this was possible or conceivable,’’ which is insufficient

to establish Strickland/Brady prejudice. (Citations

omitted.) Whether credibility assessments properly

may be left to a new jury, rather than a habeas court,

is a much different issue than whether an appellate

tribunal may make its own credibility assessment. In

light of the respondent’s briefing on this issue in Anderson, I find it hard to believe that the respondent would

remain silent on this same issue in the present case if

it were truly presented to us in this appeal.

Moreover, because neither party made any claim of
error regarding the merits of the credibility questions

put into issue by the majority, neither party has provided briefing on that topic. The only discussion of the

credibility of the experts comes from a single, half page

footnote in the respondent’s brief. Most tellingly, that

footnote was appended to a sentence in the text that

explained that the petitioner had not raised any claim

of error concerning the habeas court’s credibility findings at any point during the appeal. Furthermore, in

that footnote, the respondent explained that the record

did not permit a finding of clear error; he mentioned

nothing about what an appellate tribunal could find if

it performed a de novo review. It would be naive to

think that, if the respondent truly had notice that this

court would conduct its own de novo review of the

credibility of new witness testimony, the respondent

would have dedicated only a single footnote to this fact

intensive inquiry, especially considering that such an

analysis by this court is unprecedented in our law and

requires consideration of numerous days of testimony

and exhibits from the petitioner’s habeas hearing and

the criminal trial. The respondent’s decision to relegate

any discussion of expert witness credibility to a footnote and to couch it in terms of a clear error analysis

is proof of only one thing: the parties did not raise

this issue and were not on notice that this court might

perform its own credibility assessment. Even the petitioner recognized that the respondent was arguing not

that the Appellate Court performed a de novo review,

but that the Appellate Court acted improperly by deciding that the credibility assessment was a ‘‘jury issue’’

and not an issue for the habeas court. The majority’s

uninvited change to our law has therefore left us with

a task that we have never before undertaken and without any guidance from the parties as to how we should

resolve their dispute.

Before we alter our well established and heretofore

unquestioned standards ofreview and take the unprecedented step of rendering our own credibility findings,

we must at least provide the parties with an opportunity

to submit supplemental briefs on these issues. In

Blumberg Associates Worldwide, Inc. v. Brown &

Brown of Connecticut, Inc., supra, 311 Conn. 123, we

determined that we may, sua sponte, consider issues

not preserved or raised by the parties, subject to certain

restrictions. See id., 128, 161–64. We explained that a

reviewing court may, but is not required to, review

‘‘issues involving plain error or constitutional error sua

sponte, as long as the court provides an opportunity

for the parties to be heard by way of supplemental

briefing and the other threshold conditions for review

are satisfied.’’ Id., 161–62. ‘‘Of course, as we have

explained in connection with a reviewing court’s consideration of a claim raised for the first time on appeal,

if a party objecting to the reviewing court’s sua sponte

consideration of the claim can demonstrate that it
would be unfairly prejudiced by such consideration, it

would be inappropriate for the appellate tribunal to

consider such a claim. Furthermore, once the objecting

party makes a colorable showing of unfair prejudice,

the burden shifts to the other party to establish that

the objecting party will suffer no such prejudice. . . .

[W]e also reiterate 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., 163–

64. The majority has not explained what considerations

led it to address issues not raised by the parties. Even

if a de novo review of the habeas court’s findings might

be warranted, the principles delineated in Blumberg

require this court to first assess whether addressing the

issue would be unfairly prejudicial to the respondent.

This prejudice analysis is a necessary predicate to

addressing an unraised issue. Even if we find no prejudice to the respondent in addressing this claim, we must

still give the parties an opportunity to address the issues

that the majority decides.

Reaching this issue on our own and without any input

from the parties harms the parties and undermines the

fairness of our judicial process. Due process compels

us to give the parties notice and an opportunity to be

heard. The record in this case is voluminous. It consists

of more than eighty volumes of transcripts with thousands of pages of testimony from a probable cause

hearing, suppression hearing, three habeas hearings,

and a lengthy criminal trial. There are hundreds of

exhibits from these proceedings. The significance of

certain evidence may not be obvious to us from our

own, unguided review of such a voluminous record.

The parties have greater knowledge of the evidence in

the record and how it got there. They also have a more

complete perspective of the context in which evidence

was presented and its import. Facts viewed in isolation

are not as powerful as facts woven into a coherent and

compelling argument. That is the purpose of briefing.

By denying the parties notice and a chance to brief the

issue that the court decides, we may be silencing valid

arguments not obvious from our own review. Even if

that briefing does not change the majority’s conclusions, the losing party deserves the solace of knowing

that it has been fairly heard.

The harm to the respondent that results from a denial

of notice and the right to be heard is not just theoretical—it is demonstrated in the majority opinion. In several places in its opinion, the majority correctly

observes that the respondent was silent about the credibility of the petitioner’s experts, noting, for example,

that ‘‘the respondent makes no attempt to defend the

. . . habeas court’s assertion that there was a material

difference’’ in the substance of the burn time experts’

testimony. But this silence is significant only to demonstrate that the respondent was not afforded the notice
that he needed to address this unraised issue. Does

one seriously doubt that, if the respondent had been

afforded notice that the habeas court’s findings were

under attack, he might have addressed these claims

before this court rather than remaining silent on these

points? The respondent briefed his case on the understanding that the petitioner had not challenged the

habeas court’s findings in the Appellate Court or in this

court, and specifically explained in his brief that the

petitioner had not raised such a claim. The majority is

thus deciding an issue that was notraised and is holding

the respondent’s silence on that issue against him.

The harm caused by silencing the respondent, as a

representative of the state, is especially acute in this

case. The majority’s decision to order a new criminal

trial could well be the functional equivalent of a directed

judgment of acquittal. The events underlying this case

occurred more than one quarter century ago. Memories

may have faded, remaining evidence may be of a questionable quality, and key witnesses, some of whom were

advanced in years at the time of the petitioner’s criminal

trial, might have passed away. The majority’s opinion

leaves the state in the difficult position of having to

retry this case long after the events at issue occurred.

Certainly, if the petitioner’s conviction was obtained

unfairly, then he deserves to have his conviction

vacated. But the state, through the respondent, is, at a

bare minimum, entitled to be heard before we charge

its appointed representatives with withholding exculpatory evidence and vacate the petitioner’s conviction on

that basis.

For these reasons, the majority should either decide

only the issues raised by the parties or seek additional

briefing in light of its decision to address unraised

issues.

III

THE MAJORITY’S CREDIBILITY FINDINGS

Even if I assume, for the sake of argument, that we

can review the habeas court’s findings de novo, I still

am not persuaded that the petitioner is entitled to a

new criminal trial. The majority finds the petitioner’s

new expert testimony to be credible after a purportedly

de novo review of the record. But it spends much of

its analysis on a lengthy diatribe against the habeas

court’s findings—an unnecessary endeavor in light of

the majority’s assertion that no deference to those findings is warranted. Indeed, rather than looking for evidence to prove credibility, the majority seems to

presume that the new testimony is credible and

searches for reasons to discredit it. The majority begins

by simply attacking the habeas court’s findings. Then,

after determining that the habeas court’s ‘‘stated reasons for discrediting the burn time estimates of [the

petitioner’s experts] are baseless,’’ the majority deter-
mines whether there is some ‘‘other apparent reason

why a jury would be apt to discredit their testimony.’’

The majority finds no such reason but does so after

briefly considering only the experts’ qualifications and

the fact that the respondent has not challenged their

credibility. This is insufficient to establish credibility.

First, determining that the habeas court’s reasons

underlying its credibility determinations were incorrect

does not necessarily establish that the testimony of the

new experts is credible. Second, an expert’s qualifications to render an opinion, while necessary to secure

admission of expert testimony, do not automatically

prove that there is a reasonable probability that it will

be credited; that determination requires a review of all

of the evidence and testimony presented at the habeas

trial, which the majority does not perform. Third, as I

mentioned previously, the respondent’s silence on this

issue is hardly a basis for making a credibility finding,

given that this issue was not raised. The respondent

could not seriously be expected to know that this court

would raise this issue sua sponte after relying on an

inapposite case from anotherjurisdiction. Furthermore,

by looking to the respondent for criticisms of the petitioner’s experts, and finding the new testimony credible

in their absence, the majority improperly shifts the burden of proof to the respondent.

Even if I assume that the petitioner had challenged

the habeas court’s credibility findings, my review of the

record persuades me that the findings were correct. My

review reveals that the new expert testimony simply is

not reliable because it lacks adequate foundations in

fact and science, and because the opinion testimony of

the petitioner’s two experts substantially conflicted in

material respects. First, as the petitioner conceded in

the Appellate Court, his own experts’ testimony demonstrated that the fire’s burn time cannot be reliably determined to any helpful degree. The petitioner’s experts,

who were hired more than one decade after the fire,

relied on speculation and unproven methods to reach

their burn time estimates. They also relied on factual

assumptions that were refuted by eyewitness testimony. Additionally, the petitioner’s experts disagreed

with each other about key data relevant to determining

the fire’s burn time and conceded that their inability

to analyze the fire scene firsthand could impact their

conclusions. Second, other fire investigators, including

the only two investigators that examined the actual

fire scene, testified that the fire could have burned for

several minutes to several hours—a time period that

does not support the petitioner’s alibi—and further testified that there was not enough data available to reliably develop a more specific determination with respect

to the fire’s burn time.

Without a valid and reliable factual and scientific

foundation, the petitioner’s expert testimony would not

even be admissible, let alone credible. See, e.g., State
v. Porter, 241 Conn. 57, 74, 698 A.2d 739 (1997), cert.

denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645

(1998); State v. John, 210 Conn. 652, 677, 557 A.2d 93,

cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d

50 (1989). To be admissible, an expert’s opinion must

have a basis in facts that are supported by the evidence;

the factual basis for an expert’s opinion may not be

based on speculation. See Viera v. Cohen, 283 Conn.

412, 449, 927 A.2d 843 (2007). ‘‘In order to render an

expert opinion the witness must be qualified to do so

and there must be a factual basis for the opinion. . . .

[When] the factual basis of an expert opinion is challenged . . . the question before the court is whether

the uncertainties in the essential facts on which the

opinion is predicated are such as to make an opinion

based on them without substantial value.’’ (Citations

omitted; internal quotation marks omitted.) State v.

John, supra, 677. Thus, without an adequate basis in

fact, an expert’s opinion cannot be admitted into evidence, let alone credited.23 See, e.g., id. Additionally,

the methodology that an expert uses to reach an opinion

on scientific issues must be scientifically valid. See State

v. Porter, supra, 83–87. An expert’s personal experience

alone, even if extensive, is not sufficient to establish

the scientific validity of the expert’s methodology. Klein

v. Norwalk Hospital, 299 Conn. 241, 263, 9 A.3d 364

(2010). With these principles in mind, I turn to my

review of the expert testimony presented at the petitioner’s habeas hearing and the testimony and exhibits from

the criminal trial relating to the testimony of the

expert witnesses.

A

Testimony from the Petitioner’s Experts

1

Turning first to the testimony of DeHaan, I note that

the record demonstrates that his estimate was unreliable because the principal factual underpinnings that

DeHaan relied on in support of his burn time estimate

are contradicted by eyewitness testimony, as well as

his own testimony, and thus are not supported by the

evidence. DeHaan estimated that the fire burned for at

least twenty-five minutes but no more than sixty

minutes. DeHaan based his estimate on two key factual

assertions. First, DeHaan assumed that the fire on the

couch ‘‘burned very readily,’’ quickly consuming the

available oxygen in the apartment, and then was

reduced to a smolder. Second, DeHaan estimated that

temperatures inside the apartment were about 400

degrees24 when the first firefighter on the scene, Michael

Tomkunas, kicked in the front door because the high

heat in the apartment prevented him from entering it.

But each of these two critical foundations for DeHaan’s

burn time estimate is contradicted by testimony from

eyewitnesses, and not supported by any other evidence.
First, DeHaan’s belief that the fire on the couch

‘‘burned very readily’’ is contrary to the observations

of a fire investigator who actually witnessed the speed

at which the couch burned. Igoe, the state fire marshal

who originally investigated the fire, testified at the criminal trial and again before the habeas court. Igoe arrived

at the scene within a few hours of the fire and remained

on the scene for about five hours to conduct his investigation. During his investigation, Igoe examined the

couch where the fire originated and the inside of the

victim’s apartment to assess the damage and the fire’s

burn pattern. He also conducted a test burn of the

couch to determine how it burned by burning the actual

material from the couch in an oxygen rich environment.

Igoe testified at the habeas hearing that, even with

plenty of oxygen, the couch material ‘‘burned very, very

slowly and it emitted heavy black smoke.’’ (Emphasis

added.) In his report issued shortly after the fire, Igoe

explained: ‘‘Examination of the living room couch leads

this investigator to conclude that the burning to the

couch was the slow smoldering type burning and not

the rapid burning which occurs with some materials.’’

(Emphasis added.)

In reaching his own conclusions, however, DeHaan

simply rejected these eyewitness observations about

the speed at which the couch burned, even though

DeHaan had neither examined the couch materials nor

witnessed the speed at which they burn. The petitioner,

in his posttrial brief, acknowledged this rejection,

explaining that ‘‘DeHaan disagreed with Igoe substantively on the fire’s characteristics, most particularly that

it was a slow burning fire.’’ DeHaan believed, from

looking at photographs of the couch, that it was made

of a material that burned rapidly and that it would

not have been treated with flame retardant. But the

materials involved in the fire were discarded or

destroyed long before DeHaan became involved in the

case. DeHaan thus did not examine the couch firsthand,

could not undertake an analysis of its materials to determine their composition, and did not personally witness

or conduct any test burns of the couch’s materials. Nor

did he explain how his theory was consistent with the

results of Igoe’s burn test. DeHaan’s dismissal of Igoe’s

testimony, despite DeHaan’s lack of any personal

knowledge of how it burned, places the factual basis

for his conclusions in direct conflict with eyewitness

evidence presented to the habeas court.

Second, the factual basis for DeHaan’s estimate of

the temperature in the apartment when Tomkunas first

arrived is contradicted by Tomkunas’ testimony from

the criminal trial. DeHaan based his estimate of the

entry level temperature on his understanding that Tomkunas could not enter the apartment even though he

suspected someone was inside. Tomkunas’ inability to

enter the apartment suggested to DeHaan that tempera-
tures were between 300 and 400 degrees when Tomkunas first arrived, with the temperatures most likely

closer to 400 degrees. This led DeHaan to conclude that

the fire could not have been started more than one

hour before Tomkunas tried to enter, or else the high

temperatures would have dissipated and Tomkunas

would not have been deterred from entering the victim’s apartment.

The majority relies heavily on DeHaan’s understanding that Tomkunas could not enter the apartment

because of the heat to call into question the habeas

court’s reliance on the testimony of the respondent’s

expert, Robert Corry. According to the majority,

DeHaan testified ‘‘that the temperature inside the hot

gas layer was likely between 300 and 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 near floor level

were untenable, and he couldn’t go in, even though he

suspected there was a victim inside.’ ’’ (Emphasis in

original.) DeHaan also testified that, if the temperature

had been lower than 400 degrees, ‘‘Tomkunas would

not have necessarily been dissuaded from entering.’’

DeHaan’s burn time conclusion, therefore, was based

on his understanding that Tomkunas could not enter

the apartment at all because of the high temperatures

and that Tomkunas entered the apartment only after

the firefighters vented it, allowing the heat to escape.

The habeas court discredited DeHaan’s estimate of

entry level temperatures based on Corry’s testimony

that Tomkunas entered the victim’s apartment before

it was vented and was not burned, indicating that temperatures could not have been as high as DeHaan had

suggested. Contrary to DeHaan’s understanding that

Tomkunas ‘‘couldn’t go in[to]’’ the apartment because

of the heat until after it was vented, Tomkunas testified

that he was able to enter the apartment when he first

arrived and before it was vented. Tomkunas, a volunteer

firefighter, was driving in his personal vehicle less than

one mile from the victim’s apartment when he received

a dispatch reporting the fire. Tomkunas, who was on

a date at the time, did not have any protective gear or

breathing apparatus with him. Nevertheless, he drove

directly to the victim’s apartment and arrived there

about one minute after the dispatch. The petitioner

directed Tomkunas to the apartment, and he went

straight to the front door and kicked it in. Tomkunas

was met with what he called a ‘‘wall of smoke.’’ It

was nighttime, and the apartment was filled with dense

smoke, making it difficult for Tomkunas to see inside

the apartment. Despite these conditions, Tomkunas was

able to enter the apartment on his first attempt. He

dropped to his knees in an attempt to stay below as
much of the smoke as possible and crawled in. He was

able to crawl about eight feet into the apartment and

within only three feet of the burning couch. Tomkunas

saw a small flame on the still smoldering couch. Tomkunas estimated that he was in the apartment for about

fifteen to twenty seconds before the heat and smoke

conditions convinced him that rescue efforts would be

‘‘a lot easier’’ if the apartment was vented. Tomkunas

crawled back out the front door and asked another

firefighter who had arrived to open the back door of

the apartment to allow the heat and smoke to escape.

Tomkunas immediately crawled back into the apartment to continue his search. He estimated that he was

outside of the apartment for less than five seconds

before reentering. During his second entry into the

apartment, Tomkunas again crawled to within only

three feet of the burning couch. This time, he found

the victim and removed her from the apartment with

the help of another firefighter. At no time during his

testimony did he say that he was prevented from entering the apartment as a result of the heat. DeHaan’s

assertion that the high heat prevented Tomkunas from

being able to enter the apartment altogether is, therefore, at odds with Tomkunas’ actual testimony.

In addition, Tomkunas’ ability to remain in the apartment for fifteen to twenty seconds before it was vented

and without suffering any burns completely contradicts

DeHaan’s claim that the apartment was close to 400

degrees when Tomkunas first kicked in the door. Corry

testified that, according to data from the National Fire

Protection Association, a person with uncovered skin

will sustain first or second degree burns when exposed

to 212 degree temperatures for fifteen seconds; burns

will occur in even less time at higher temperatures.

Although DeHaan estimated that Tomkunas would have

experienced temperatures near 400 degrees ‘‘to the bare

skin,’’ Tomkunas did not sustain any burns or injuries

from the heat or smoke on either of the two occasions

that he entered the apartment.25

Tomkunas’s testimony directly contradicts DeHaan’s

and the majority’s understanding that the 400 degree

heat prevented Tomkunas from even entering the apartment. The habeas court discredited DeHaan’s testimony

in part because it credited Corry’s testimony that entry

level temperatures could not have been close to 400

degrees as DeHaan estimated because Tomkunas was

able to enterthe apartment without suffering any burns.

The majority concludes, however, that this finding

‘‘lacks support in the record.’’ According to the majority,

the approximately 400 degree temperatures prevented

Tomkunas from even entering the apartment before it

was vented, and that was why Tomkunas did not get

burned. The majority explains that ‘‘Tomkunas had testified . . . that the heat and smoke prevented him from

entering the apartment when . . . he first attempted

to do so,’’ and it criticizes Corry for ‘‘simply . . . refus-
[ing] to accept’’ this fact. (Emphasis in original.) But

Tomkunas’ testimony makes clear that he did enter the

apartment on his first attempt and remained in there

for about fifteen to twenty seconds without suffering

any burns.

I also note that Corry’s opinion received additional

support from Corry’s own interviews of Tomkunas. As

part of his investigation of the fire, Corry personally

interviewed Tomkunas twice about his actions on the

night of the fire and the heat conditions that Tomkunas

encountered. Corry testified during the habeas hearing

that, ‘‘when [he] asked [Tomkunas] to compare [the

heat he experienced upon entering] to something that

he was familiar with, he said at most it was similar to

entering a sauna, which would be about 150 degrees

to 190 [degrees].’’ DeHaan, on the other hand, did not

speak to Tomkunas or even attempt to contact him;

he instead claims to have relied on Tomkunas’ trial

testimony, which, as I explained previously, is inconsistent with DeHaan’s understanding of the conditions that

Tomkunas experienced.

DeHaan’s assumptions in support of his estimates of

entry level temperatures are thus completely refuted

by Tomkunas’ testimony. We do not know what impact,

if any, Tomkunas’ ability to enter the apartment had on

DeHaan’s conclusions because DeHaan’s stated understanding of Tomkunas’ actions simply does not line up

with Tomkunas’ testimony. When, as in the present

case, an expert’s opinion lacks a valid basis in fact, it is

nothing more than speculation and may not be admitted

into evidence, and, as a result, cannot be credited. See,

e.g., State v. John, supra, 210 Conn. 677.

In addition, DeHaan’s belief that entry level temperatures were too high for Tomkunas even to enter the

apartment conflicts with DeHaan’s own testimony

about the fire’s energy level. 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, and if you were there at the time . . . it

reached its maximum . . . .’’26 (Emphasis added.)

DeHaan did not explain how the fire could have been

approachable at its maximum intensity but unapproachable when Tomkunas tried to enter the apartment,

which, according to DeHaan, likely occurred after the

fire passed its peak and the apartment had begun to

cool.27

DeHaan’s unsupported and conflicting testimony

fully supports the habeas court’s conclusion that

DeHaan’s burn time estimate was too speculative to be

reliable, rendering it inadmissible.
2

Turning next to the testimony of the petitioner’s other

burn time expert, Gerard Kelder, Jr., I am persuaded

that the record supports a finding that his estimate

was also unreliable. The 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.

Kelder testified that he developed his burn time estimate principally by reviewing the fire damage depicted

in photographs and a video recording. During the

habeas hearing, the respondent’s attorney asked Kelder

what scientific method he followed to investigate the

fire. Kelder initially testified that he relied on his personal experience and that his procedures tracked those

described in chapterfour ofthe National Fire Protection

Association’s Publication 921, a widely used fire investigation guide.28 After being shown a recent edition of

Publication 921, Kelder said that he had an older edition

and would have to review the publication to recall its

basic procedures. After reviewing it, Kelder changed

his testimony about his method and admitted that he

did not follow those procedures to investigate the fire

but used his own procedure based on his personal experience instead.29

Kelder did not explain whether the method he contrived from his own personal experience was a scientifically valid and reliable method for determining a fire’s

burn time. Kelder acknowledged that his ‘‘estimate of

the ignition time of the fire was based largely on the

amount of damage that [he had] observed,’’ but there

was no other testimony to establish that a review of

fire damage through photographs and a video recording

of the scene is a valid and reliable method for determining how long a fire burned. Additionally, when describing his method, Kelder stated that the method he used

to determine the burn time was based on his experience

in ‘‘determining [the] cause and origin’’ of a fire; he said

nothing about his experience or method for determining

how long a fire burned. (Emphasis added.) The only

evidence in the record about whether this method was

valid came from Corry, who testified that examining

photographs of fire damage was not a viable method

for determining a fire’s burn time.

The respondent attacked Kelder’s testimony before

the habeas court on this very basis. In his posttrial brief,

the respondent argued that Kelder ‘‘could identify no

scientific principle that would support his assertion that

he [could] determine the duration of the fire simply

by viewing photographs of the damage that it caused.

Indeed, when Kelder’s testimony is considered in its

entirety, it becomes clear that it was nothing more than

pseudo-scientific babbling. His conclusion, therefore,

should not be credited . . . .’’ Not surprisingly, the
petitioner, in his posttrial brief, cited to Kelder’s testimony only once.

A court must preclude an expert’s opinion when there

is no evidence in the record to support the validity of

the expert’s methods other than the expert’s own ‘‘ipse

dixit’’ that those methods are valid and reliable; a witness’ personal experience is not enough. Klein v. Norwalk Hospital, supra, 299 Conn. 263; see also id., 262–63

(‘‘[T]he defendant made no showing that [the expert

witness’] methodology had been subjected to peer

review, nor was [the witness] able to identify a likely

rate of error for his chosen methodology. [Although]

neither of these determinations is a talismanic requirement for satisfaction of the Porter requirements, their

absence is . . . determinative of the inadequacy of the

defendant’s proof of the methodology’s reliability. . . .

Without these or any other meaningful indicia of reliability, [the witness’] conclusion was without basis in

an assuredly reliable methodology; without any stated

support for its reliability other than his own personal

expertise, it was nothing more than his ipse dixit.’’

[Citation omitted; emphasis added.]).

The habeas court in the present case was fully justified in concluding that Kelder’s opinion would be

excluded from a criminal trial altogether. See id., 263

(‘‘[n]othing . . . requires a . . . court to admit opinion evidence that is connected to existing data only by

the ipse dixit of the expert’’ [internal quotation marks

omitted]). The petitioner’s failure to present facts to

establish the validity and reliability of Kelder’s method

would render his testimony not credible and inadmissible.

3

Other than the inherent unreliability of their estimates, Kelder and DeHaan disagreed with each other

about key data points relevant to a determination of the

fire’s burn time, including the maximum temperature in

the apartment, the temperature inside the apartment

when Tomkunas first arrived, and the materials in the

couch where the fire principally burned.

At the habeas hearing, Kelder testified that the maximum temperature in the apartment as a result of the

fire would have been between 1800 to 2000 degrees at

ceiling level. When asked how he reached this estimate,

Kelderreplied, ‘‘[i]t’s scientific proof.’’ DeHaan testified,

however, that the temperature in the apartment could

not possibly have exceeded 400 to 450 degrees.

According to DeHaan, there were a number of objects

throughout the apartment, including within the hot

smoke layer, that ‘‘had been affected, but not ignited,’’

and, if the temperature had been any higher than 450

degrees, ‘‘a lot of other things would have been ignited

and burned.’’30

Kelder and DeHaan also disagreed about the tempera-
ture of the apartment when Tomkunas first kicked in

the front door. Each of the petitioner’s experts agreed

that this was an important factor in determining the

fire’s burn time. As I discussed previously, DeHaan estimated that the entry level temperature was about 400

degrees. Kelder, on the other hand, initially testified

that ‘‘there was not a lot of heat in that room at the

time [the firefighters] entered’’ because, if there had

been, there would have been a ‘‘flashover . . . of fire

from the new oxygen coming into the room’’ when the

firefighters first opened the door.31 Later in his testimony, however, Kelder gave an estimate of 600 to 800

degrees, which far exceeded DeHaan’s estimate of both

the entry level temperature and the maximum temperature that the apartment could have reached as a result

of the fire. Yet, under further questioning, Kelder testified that he was ‘‘not really sure’’ what the entry level

temperature was because he ‘‘wasn’t at the fire scene,’’

so any estimate of the entry conditions would be ‘‘an

assumption on [his] part.’’ In addition to demonstrating

the inconsistent and contradictory nature of the petitioner’s evidence, Kelder’s testimony on this point is

yet further evidence—from the petitioner’s own

expert—that DeHaan could not make a reliable estimate

of the entry level temperature.

Furthermore, the petitioner’s experts disagreed over

whether the couch cushions were made of rubber foam

or polyurethane foam, which burn at different rates, a

difference that could have affected the fire’s burn time.

DeHaan testified that he was sure that the couch cushions were made with rapidly burning polyurethane

foam, which led him to reject Igoe’s eyewitness observations that the fire burned slowly. According to DeHaan,

if the couch cushions were made of slower burning

rubber foam, the remnants of the cushions would have

appeared much differently than that depicted in the

photographs, and rubber was not widely used as cushion material when the victim’s couch was likely constructed.32 Nevertheless, the petitioner’s other expert,

Kelder, contradicted DeHaan’s opinion and concluded,

instead, that the couch cushions were made of rubber

foam, which burns relatively slowly and does not easily

ignite. Like DeHaan, Kelder also based his conclusion

on his review of the photographs of the couch. And,

unlike DeHaan, Kelder did not dispute Igoe’s report that

the couch material burned ‘‘very, very, slowly . . . .’’

In fact, when asked whether the couch cushions could

have been made from polyurethane foam, which burns

more rapidly than rubber foam, Kelder testified that he

was ‘‘sure’’ that they were not made of polyurethane.

He stated: ‘‘I can tell you it wasn’t polyurethane foam

because, if that were the case, any type [of] poly foam

like that would ignite and burn rapidly. This did not

[based on] the test done by . . . Igoe.’’

The petitioner’s experts also admitted that their late

arrival to the case, as well as their resulting inability
to study the actual fire scene in person, could affect

the validity of their conclusions. Neither Kelder nor

DeHaan investigated the actual fire scene at the time

of the fire. They were hired more than one decade after

the fire to formulate burn time estimates based only

on a review of photographs, a video recording and the

testimony of certain witnesses. But the photographs

and video recording were taken after emergency personnel had disturbed the original fire scene. For example, photographs of the couch where the primary fire

burned show the couch outside of the victim’s apartment on the lawn, even though all experts agree that

the couch was in the living room at the time of the fire.

Emergency personnel moved the couch outside before

the first fire investigators arrived on the scene and

before any photographs of the scene were taken. Moreover, neither Kelder nor DeHaan interviewed any of the

witnesses to the fire, and neither of them personally

examined or analyzed any of the materials involved in

the fire.

Kelder acknowledged that important information

about the conditions contributing to the fire’s duration

was unavailable to him because he joined the case long

after the fire occurred. Kelder explained that he developed his burn time estimate by looking at photographs,

a video recording and a diagram of the scene, and by

reviewing certain testimony. He did not do anything

further to gather additional information to help his

investigation—for example, by interviewing witnesses—and explained that he was not asked to do this.

Nevertheless, he agreed that it would have been a good

investigative practice to do so, if he had been able to

investigate the actual fire scene in ‘‘1987 versus 2000

. . . .’’ He also acknowledged that his inability to

review, firsthand, the actual fire scene and materials

involved in the fire prevented him from using standard

fire investigation methods. When asked whether he

knew the ignition temperatures of the materials

involved in the fire, Kelder conceded that he ‘‘would

have to test the materials’’ but that he ‘‘didn’t have that

availability’’ and therefore could not conduct his own

tests. And when Kelder was asked whether it would be

important for his investigation to determine exactly

what type of material was involved in the fire, he

answered: ‘‘Yes, if I had the availability of being at the

scene, I think I would have sent it to the lab and determine what components were in it.’’ Kelder also

explained: ‘‘I could not make that determination. I

wasn’t at the scene.’’ Finally, Kelder also acknowledged

that it would have been ‘‘a good investigative practice

to try to determine what the temperatures were when

the firefighters entered the apartment’’ but that he could

not do so because he ‘‘wasn’t at the fire scene.’’

In addition, DeHaan acknowledged the limited data

available to him could impact his conclusions. When

DeHaan was asked at the habeas hearing whether there
was ‘‘anything [he] could have learned by examining any

items that were retained from the fire,’’ he explained: ‘‘If

the [couch] had been retained, yes, that would have

been useful to physically examine it and specifically

identify the fabrics and filler rather than by photographs.’’ Although DeHaan based his burn time opinion

primarily on his estimate of the temperature that Tomkunas was exposed to when he first arrived at the apartment, DeHaan acknowledged that he was able to

estimate that temperature ‘‘[o]nly very approximately

. . . .’’ And, in his written report, DeHaan concluded

that, ‘‘[d]ue to the limited data available as to the

insulation and ventilation conditions existing in [the

victim’s apartment], it is not possible to predict the

postfire duration of high temperatures.’’ (Emphasis

added.) Nevertheless, DeHaan ultimately based his

opinion on an estimate of the postfire duration of high

temperatures. When confronted during the habeas hearing with this apparent inconsistency, DeHaan admitted

that it is not possible to determine the fire’s duration

‘‘[w]ith any accuracy, that’s right, with precise accuracy,

I should say,’’ and explained that his estimate ‘‘was a

very general conclusion that that was the—that was the

time frame’’ based on a ‘‘prediction of the ventilation

conditions in the room.’’ (Emphasis added.)

The petitioner had the burden of proving the elements

necessary to prevail on his Brady claim, which required

him to demonstrate prejudice by providing reliable burn

time evidence in support of his alibi defense. The

unfounded, speculative and contradictory nature of the

testimony of the petitioner’s burn time experts leads

me to conclude that the petitioner’s evidence is not

reliable. Consequently, there is no reasonable probability that it would have been credited.

B

Testimony from Other Experts

Apart from the faulty testimony of the petitioner’s

own experts, the habeas court also heard testimony

from three other fire experts. Their testimony reinforced what the petitioner’s experts acknowledged: that

investigators lacked the data needed to make a reliable

burn time estimate, including proper measures of temperature in the apartment during the fire, ventilation

conditions, and the materials in the couch where the

fire primarily burned.

As I noted previously, the habeas court heard testimony from Igoe, who investigated the actual fire scene

firsthand. On the basis of his analysis of the fire scene

and his observations of the couch and its burn rate, he

concluded that the primary fire started on the couch

and burned ‘‘very, very slowly . . . .’’ Igoe testified

that, given the slow burn rate, the time the fire took to

spread after ignition could have varied depending on

ventilation and insulation conditions in the apartment.
He explained, however, that he had difficulty assessing

actual conditions at the time of the fire because the

scene had been disturbed by emergency personnel. Igoe

noted that the ‘‘[c]onditions of the [apartment] were

horrible’’ and that the apartment was ‘‘a mess’’ after

the fire. On the basis of his firsthand observations, Igoe

determined thatthe slow burning fire could have burned

for several minutes to several hours, depending on the

exact conditions and materials in the objects that

burned. Igoe testified that the only information he

would feel comfortable using to determine the fire’s

duration would be eyewitness testimony about the fire’s

start time, which did not help narrow the window of

time within which the fire could have started.

The habeas court also heard from Joseph Roy,

another fire investigator from the state fire marshal’s

office, who assisted Igoe in his investigation at the

scene. Roy’s testimony supported Igoe’s conclusion.

Roy testified that any reliable estimate of the fire’s burn

time would require additional facts and scientific analysis of the materials involved. That analysis requires a

lab analysis of the combustible materials in the home

to determine how long those materials could burn, an

analysis that was not performed in this case.

The respondent’s expert, Corry, also testified that

the burn time could not be reliably determined. Corry

agreed with Igoe that the fire could have burned for

several minutes to several hours, depending on the

exact conditions at the time of the fire, which are not

known to any of the investigators. Corry reached his

conclusions on the basis of his own observations about

the insulation conditions of the actual apartment. Of

the three hired experts, Corry is the only one who visited the actual fire scene. He noted that the victim’s

apartment had remained vacant since the incident and

still smelled strongly of smoke. He observed the insulation properties of the apartment and interviewed a

maintenance employee at the apartment complex who

had worked there since before the fire. The maintenance employee explained that the original door had

been cleaned and left in place but that the windows

had been replaced after the fire with the same type that

had previously been installed. From his observations,

he concluded that the apartment was well insulated. He

also noted that photographs of the scene show limited

smoke damage on the outside of the apartment, which

led him to conclude that the apartment was not well

ventilated at the time of the fire.

Corry concluded that the fire’s burn time could not

be determined to a reasonable degree of probability.

Corry believed that the couch burned slowly after ignition. According to Corry, burn patterns indicated that

objects on the couch, along with a lack of ventilation,

inhibited the spread of the fire. Like the other experts,

Corry opined that the fire eventually consumed avail-
able oxygen and reduced to a smolder. Given the lack

of knowledge of the type of materials involved in the

fire and the exact ventilation conditions at the time of

the fire, Corry concluded that ‘‘[i]t’s very difficult to

say [with any] degree of certainty’’ how long the fire

lasted. Corry opined that the fire could have smoldered

for some time, even with a relatively small amount of

ventilation bringing in fresh oxygen to sustain the fire.33

Because Corry believed that the apartment was well

insulated, he believed it could have retained heat and

smoke from the fire for a ‘‘significant period of time

. . . .’’ For these reasons, Corry testified that the fire

could have lasted anywhere from several minutes to

several hours. Because of a lack of data needed to

render a more specific and scientifically reliable burn

time estimate, Corry determined, similar to Igoe, that

one would have to rely on eyewitness testimony to

determine the time frame within which the fire likely

started.34 In this case, the eyewitness testimony,

together with Corry’s conclusion that the fire could

have burned for several hours, led Corry to conclude

the fire could have started anytime during a window

of about two hours or more, which the habeas court

determined would not support the petitioner’s alibi.

This is not a case in which a fact finder, presented

with equally compelling but divergent expert testimony,

simply chose to credit one expert over others. The petitioner’s unreliable burn time evidence and the testimony from other experts convinces me that there is

not a reasonable probability that a jury would credit

the testimony. How the majority can conclude that the

habeas court’s findings are ‘‘baseless’’ in light of this

evidence is beyond me.

Without any credible burn time evidence to weigh

against the original trial evidence, the petitioner cannot

establish prejudice under Strickland and Brady. On the

record, I disagree that we can conclude, as a matter of

law on appeal, that the petitioner has met his burden.35

IV

CONCLUSION

For the foregoing reasons, I cannot join in the majority’s decision to uphold the Appellate Court’s decision

to order a new trial for the petitioner. I therefore would

reverse the Appellate Court’s judgment and remand

the case with direction to affirm the habeas court’s

judgment denying the habeas petition.

Accordingly, I respectfully dissent.

1 All references in this opinion to the habeas court are to the habeas court,

Nazzaro, J., or what was the third of three habeas courts in a series of

habeas proceedings involving the petitioner, Richard Lapointe.

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984).

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

4 Beside the testimony of his experts, the petitioner’s other new evidence

included only the Ludlow note and testimony from Karen Martin, his former

spouse, who did not testify at the petitioner’s criminal trial. This other new
evidence was not enough to undermine the verdict at the petitioner’s criminal

trial in the absence of valid evidence of the fire’s burn time to support the

petitioner’s alibi. Although the petitioner argued that the ‘‘30–40 mins. Poss.’’

notation in the Ludlow note was an expert opinion of the fire’s burn time,

it was never connected to any expert. Ludlow, the author of the note, was

not sure whether it was an opinion from fire investigators, who denied they

gave any such opinions, or a question that Ludlow wanted to ask. Thus, the

Ludlow note may not even constitute Brady material. That issue, however,

is not before the court. As for Karen Martin’s testimony, the habeas court

found that it did not provide the petitioner with a complete alibi because

she could not account for the petitioner’s whereabouts for the entire night

in question.

5 The majority asserts that my view of the Appellate Court’s decision

‘‘verges on insulting . . . .’’ I do not insult the opinions of others; rather, I

leave it to the reader to determine whether my view of the Appellate Court’s

decision is correct. I note, however, that my interpretation of the Appellate

Court’s approach in this case is not ‘‘ludicrous,’’ as the majority suggests.

Rather, the Appellate Court’s approach bears significant resemblance to a

harmless error analysis applied to evidentiary claims. In a harmless error

analysis, an appellate tribunal determines whether the absence of certain

evidence prejudiced the offering party at trial. It requires an appellate tribunal to decide ‘‘whether the evidence, if believed by the jury, likely would

have produced a different result.’’ (Emphasis in original.) Adams v. State,

259 Conn. 831, 842, 792 A.2d 809 (2002). In applying this test, ‘‘[t]he reviewing

court thus abstains from drawing any independent conclusions regarding

the credibility of the evidence, leaving that responsibility to the jury [at] a

new trial, who may observe, firsthand, the witness’ conduct, demeanor and

attitude.’’ Id. Although the harmless error analysis does not apply in the

Strickland/Brady prejudice context; see Small v. Commissioner of Correction, 286 Conn. 707, 731, 946 A.2d 1203, cert. denied sub nom. Small v.

Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008); interpreting

the Appellate Court’s analysis in this case as something akin to a harmless

error analysis is not insulting given that the harmless error test is routinely

used by appellate tribunals to assess prejudice stemming from the absence

of evidence at the original trial, an issue similar to that presented by the

Strickland prejudice element. What would be insulting to the Appellate

Court is to presume that it acted as a fact finder by retrying credibility

issues settled in the habeas court, an analysis never before undertaken

by an appellate tribunal in this state that is unsupported by our existing

jurisprudence and forbidden by our constitution.

6

In light of the respondent’s argument that the Appellate Court reached

its decision by hypothesizing about what a jury could find, assuming that

a jury chose to credit the new testimony, I am perplexed by the majority’s

assertion that the respondent made no such argument.

7 We have recognized a limited exception to this rule when the trial court

that considers the defendant’s Strickland or Brady claim presided over the

original trial. In that situation, we give some deference to the trial court’s

assessment of the impact of the alleged violation on the original trial evidence. State v. Ortiz, supra, 280 Conn. 721–22.

8 For this reason, the Appellate Court’s assertion that credibility assessments must be left to a new jury and not to the habeas court is incorrect.

See Lapointe v. Commissioner of Correction, supra, 138 Conn. App. 476–77

n.17. It is the habeas court, not a jury, that must decide the petitioner’s

Strickland/Brady claim. The Appellate Court’s decision to relieve the habeas

court of its obligation to assess credibility and to leave the issue entirely

to a jury does not recognize that both the habeas court and a new jury have

a role in judging credibility, though their respective roles are different. The

habeas court must make a threshold credibility assessment of new witness

testimony to decide whether a petitioner has established a right to a new

trial under Strickland or Brady. If a new trial is warranted, and the state

retries the case, then a jury must assess the new testimony in deciding guilt

or innocence.

9 See, e.g., Sanchez v. Commissioner of Correction, supra, 314 Conn. 603,

611 (deferring to habeas court’s finding that ‘‘a jury was unlikely to have

found [the petitioner’s new witnesses] credible’’ when ‘‘the habeas court’s

finding in this regard [was] not clearly erroneous’’); Anderson v. Commissioner of Correction, 313 Conn. 360, 375, 380, 98 A.3d 23 (2014) (deferring

to habeas court’s refusal to credit new expert testimony), cert. denied sub

nom. Anderson v. Semple, U.S. (83 U.S.L.W. 3678, February 23,

2015); Gaines v. Commissioner of Correction, supra, 306 Conn. 688, 690
(deferring to habeas court’s findings that petitioner’s new alibi witnesses

were ‘‘credible and compelling’’ after concluding that habeas court’s finding

was not clearly erroneous); Bryant v. Commissioner of Correction, supra,

290 Conn. 510–11, 523–26 (deferring to habeas court’s finding that petitioner’s new witnesses were credible); Francis v. Commissioner of Correction,

142 Conn. App. 530, 540 n.5, 66 A.3d 501 (noting that deference is given to

credibility determinations by habeas court and deferring to habeas court’s

finding that petitioner’s new expert’s opinion was not ‘‘ ‘particularly reliable’ ’’), cert. denied, 310 Conn. 921, 77 A.3d 141 (2013); Smith v. Commissioner of Correction, 141 Conn. App. 626, 631–33, 62 A.3d 554 (upholding as

not clearly erroneous habeas court’s finding that petitioner’s new witnesses

lacked credibility, rendering their testimony ‘‘ ‘unimpressive’ ’’ and ‘‘ ‘useless’ ’’), cert. denied, 308 Conn. 947, 67 A.3d 290 (2013); Williams v. Commissioner of Correction, 41 Conn. App. 515, 521–23, 677 A.2d 1 (1996) (deferring

to habeas court’s finding that petitioner’s new witness testimony was

‘‘ ‘unworthy of belief’ ’’), appeal dismissed, 240 Conn. 547, 692 A.2d 1231

(1997); Siano v. Warden, 31 Conn. App. 94, 103, 623 A.2d 1035 (upholding

habeas court’s decision to grant habeas petition on basis of counsel’s failure

to call expert witness when habeas court ‘‘had the opportunity to observe

[the expert’s] demeanor, appearance, and ability to relate and communicate

facts, and found that he made an excellent witness’’), cert. denied, 226 Conn.

910, 628 A.2d 984 (1993); see also Doehrer v. Commissioner of Correction,

68 Conn. App. 774, 784–85, 795 A.2d 548 (deferring to habeas court’s decision

not to credit uncontradicted testimony of petitioner’s expert witness), cert.

denied, 260 Conn. 924, 797 A.2d 520 (2002).

10 I agree with the majority’s statement in footnote 38 of its opinion that

the proper standard for assessing credibility of new witness testimony in

this context is whether ‘‘there is a reasonable probability of the jury having

credited the . . . testimony . . . .’’ I therefore interpret any statement in

the majority opinion about whether a jury reasonably could credit the new

testimony as requiring a showing that there is a reasonable probability of

the jury having credited the new testimony.

11 See, e.g., Sanchez v. Commissioner of Correction, supra, 314 Conn. 612

(‘‘the habeas court was in the best position to observe [the new witness’]

conduct, demeanor and attitude while [he was] testifying’’); Thomas v. Commissioner of Correction, 141 Conn. App. 465, 472–73, 62 A.3d 534 (habeas

court must have opportunity to hear testimony of petitioner’s new witnesses

to evaluate their credibility in determining Strickland/Brady prejudice),

cert. denied, 308 Conn. 939, 66 A.3d 881 (2013); Townsend v. Commissioner

of Correction, 116 Conn. App. 663, 668, 975 A.2d 1282 (upholding denial of

habeas petition when petitioner did not present testimony of new exculpatory witness, ‘‘which the habeas court properly found was insufficient to

show prejudice because there was no opportunity to evaluate the testimony

or credibility of the claimed witness’’), cert. denied, 293 Conn. 930, 980 A.2d

916 (2009).

12 See, e.g., Thomas v. Commissioner of Correction, 141 Conn. App. 465,

472–73, 62 A.3d 534 (habeas court must have opportunity to hear testimony

of petitioner’s new witnesses to evaluate their credibility in determining

Strickland/Brady prejudice), cert. denied, 308 Conn. 939, 66 A.3d 881 (2013);

Townsend v. Commissioner of Correction, 116 Conn. App. 663, 668, 975

A.2d 1282 (upholding denial of habeas petition when petitioner did not

present testimony of new exculpatory witness, ‘‘which the habeas court

properly found was insufficient to show prejudice because there was no

opportunity to evaluate the testimony or credibility of the claimed witness’’),

cert. denied, 293 Conn. 930, 980 A.2d 916 (2009); see also State v. Lawrence,

282 Conn. 141, 155, 920 A.2d 236 (2007) (‘‘[c]redibility must be assessed

. . . not by reading the cold printed record, but by observing firsthand the

witness’ conduct, demeanor and attitude’’ [internal quotation marks

omitted]).

13 See, e.g., Sanchez v. Commissioner of Correction, supra, 314 Conn.

611–12 (habeas court’s credibility finding was reasonable in light of witness’

relationship to petitioner, terse answers to questions, inconsistencies with

testimony of other witnesses, and witness’ criminalrecord and gang membership); Gaines v. Commissioner of Correction, supra, 306 Conn. 690–92

(deferring to habeas court’s finding that new alibi testimony was credible

despite impeachment evidence presented by respondent); Bryant v. Commissioner of Correction, supra, 290 Conn. 510–11, 523–26 (deferring to

habeas court’s finding that new witnesses were credible because they were

disinterested witnesses and their testimony was fully consistent with prior

statements); see also Bowman v. 1477 Central Avenue Apartments, Inc.,
203 Conn. 246, 257, 524 A.2d 610 (1987) (‘‘[when] the evidence is in conflict,

its probative force is for the trier of fact to determine’’); Steinman v. Maier,

179 Conn. 574, 576, 427 A.2d 828 (1980) (‘‘[t]he sifting and weighing of

evidence is peculiarly the function of the trier’’).

14 Although not at issue in the present case because all witnesses in the

petitioner’s habeas case testified live in court, I note that, even if a party’s

expert witnesses submitted evidence by affidavit, rather than through live

testimony, we still would not be in the same position as the trial court to

assess credibility if other witnesses testified live before the habeas court

on the same subject. Because we require a trier to consider all of the

evidence presented to it in assessing credibility, it cannot make its findings

by reviewing that witness’ affidavit alone because the testimony of other

witnesses can impact the credibility of evidence submitted by affidavit. For

example, suppose a party offers the affidavit of expert A who expresses an

opinion. The opposing party offers expert B and an eyewitness, who testify

live and offer evidence inconsistent with the substance of A’s affidavit. The

trial court might discredit A’s opinion on the basis of what B and the

eyewitness say. Or, the trial court might nevertheless credit expert A after

hearing the testimony of B and the eyewitness. Either way, the trial court’s

credibility assessment depends, in part, on the live testimony of other witnesses.

15 The habeas court summarized Igoe’s analysis and conclusions as follows:

‘‘Igoe concluded that the fire was slow burning because, although there was

significant damage to the couch, the fire had not completely burned the

wood on the back of the couch. Additionally, Igoe conducted a burn test

on one of the couch cushions. The fabric ignited and burned slowly, emitting

heavy, black smoke. . . .

‘‘Depending on the specific conditions in the apartment, the oxygen supply,

etc., the couch could have burned slowly and/or smoldered between several

minutes or several hours, according to Igoe.’’

16 In response to this argument, the majority asserts that, because ‘‘[t]he

respondent has not raised a constitutional objection’’ to de novo review by

this court, I have improperly considered our own constitutional authority

in considering whether such review is proper. I am quite perplexed by

this assertion.

First, the majority’s position is ironic given that neither party has asked

us to modify the scope of our review; put another way, the majority is

improperly addressing an unraised issue. See part II of this opinion. Because

the parties did not have notice that this court would change its standard

ofreview, it is of no surprise that the respondent has notraised any objection

to such a change.

Second, given that the majority has decided to reconsider and change

our standard of review, I fail to understand why I am forbidden from looking

at our own case law and constitution to address that very issue. In doing

so, I am not raising a new issue. Rather, I am merely looking to our own

authority, not cited by the parties, that bears on the issue already under

consideration by the majority. Although we generally are limited to

addressing only the issues raised by the parties, we have never suggested

that we are limited to considering only the legal authorities cited by them.

Indeed, in considering the scope of our review, the majority itself relies on

authorities from other jurisdictions that neither party has cited. It thus

appears to me that the majority has mistakenly confused what I am doing

with a situation in which a party raises an entirely new claim for relief

under our state constitution, something I have not done.

17 In an effort to distract from its constitutional transgression, the majority

calls attention to two aspects of the court’s decision in Styles that are not

in dispute. As the majority notes, the court in Styles recognized that we

may review a trial court’s factual findings; Styles v. Tyler, supra, 64 Conn.

459; but that, in doing so, we may consider only the legal sufficiency of

those findings. This analysis, the clear error test, presents a question of law,

not one of fact. The court in Styles also recognized that our jurisdiction

extends to questions in which the issues of fact and law are so intertwined

that they cannot be considered pure questions of fact; id.; and I agree that

we may review de novo these so-called mixed questions of law and fact. The

majority’s analysis, which discusses only these two undisputed propositions,

does not address our cases demonstrating that assessing the credibility of

new testimony in the Strickland/Brady prejudice context is a question of

fact, which we are constitutionally prohibited from deciding in this court.

See part I A of this opinion.

18 Additionally, I am perplexed by the Chief Justice’s assertion that, by
assessing the likelihood that a jury would credit new witness testimony in

the context of deciding a Strickland/Brady claim, a habeas court is not

making an ‘‘ultimate’’ credibility finding. Although it is true that the habeas

court is assessing how a jury might evaluate new evidence, this assessment is

still an ‘‘ultimate’’ credibility assessment for the purposes of the Strickland/

Brady claim. See Sanchez v. Commissioner of Correction, supra, 314 Conn.

602 n.12. The petitioner is required to make this credibility showing as a

prerequisite to prevailing on a Strickland/Brady claim based on new witness

testimony, and the failure to make this showing is dispositive of the petitioner’s claim. If, as in the present case, the petitioner does not establish to the

habeas court a reasonable probability that a new jury will credit the new

testimony, the petitioner’s Strickland or Brady claim will fail. This means

that the habeas court’s credibility assessment is dispositive of the petitioner’s

claims and that there are no further assessments to be made.

19 To be sure, these types of probabilistic judgments may involve different

burdens of proof than the preponderance standard used in civil cases or the

reasonable doubt standard used in criminal cases. For example, credibility in

the context of Strickland andBrady claims is evaluated underthe reasonable

probability standard, whereas the probable cause standard applies to prejudgment remedies. Although the burden of proof may be different from

that in a full trial on the merits, the factual nature of the inquiry remains

the same. See, e.g., Sanchez v. Commissioner of Correction, supra, 314

Conn. 602 n.12, 611–12 and n.16 (declining to treat credibility assessments

in context of reviewing Strickland prejudice claim any differently from

traditional credibility assessment); TES Franchising, LLC v. Feldman,

supra, 286 Conn. 143 (trial court assesses witness credibility in prejudgment

remedy proceeding, and this court will not usurp that role).

20 The majority claims that, in other contexts, ‘‘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.’’ In

support of this assertion, the majority cites two examples, but neither of

them involves fact-finding.

The first example, the clear error test, is a test of legal sufficiency. It is

essentially a reasonableness test under which we review the record to make

sure that the trier’s findings are reasonably supported by the record. See,

e.g., TES Franchising, LLC v. Feldman, supra, 286 Conn. 138; Ventres v.

Goodspeed Airport, LLC, supra, 275 Conn. 125. Contrary to the majority’s

claims, the clear error test does not allow us to substitute our judgment for

the trier; nor may we replace the trier’s findings with our own. See Kaplan

v. Kaplan, supra, 186 Conn. 391 (appellate tribunal may not reject finding

‘‘merely because the reviewing judges personally disagree with the conclusion or would have found differently had they been sitting as the [fact

finder]’’); Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 181 Conn. 222

(‘‘[w]e do not examine the record to determine whether the trier of fact

could have reached a conclusion other than the one reached’’).

The majority’s reference to the preservation test set forth in State v.

Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), is equally misguided. Whether

a claim has been preserved is a legal question, not a factual one. E.g., State

v. Davis, 311 Conn. 468, 477, 88 A.3d 445 (2014). The waiver doctrine that

we applied in Kitchens is used to determine whether a party has sufficiently

preserved a claim for appellate review. It involves the application of a legal

presumption to a given set of facts. Although the application of this doctrine

requires us to review the transcripts and pleadings in the record, it does

not authorize us to resolve any disputed questions of fact, noris the appellate

tribunal called on to evaluate credibility. Recounting the procedural facts

revealed by the record, and determining the legal consequences of those

facts, is not fact-finding. See, e.g., Dockter v. Slowik, 91 Conn. App. 448, 459

and n.7, 881 A.2d 479 (procedural facts from court file are subject to judicial

notice), cert. denied, 276 Conn. 919, 888 A.2d 87 (2005); Grant v. Commissioner of Correction, 87 Conn. App. 814, 817, 867 A.2d 145 (‘‘It is well known

that appellate courts do not make findings of fact. . . . Appellate courts,

however, review the whole record and do not overlook material contained

in the trial court’s file . . . . We may take judicial notice of the contents

of the court’s file.’’ [Internal quotation marks omitted.]), cert. denied, 274

Conn. 918, 879 A.2d 895 (2005); see also State v. Ledbetter, 275 Conn. 534,

568, 881 A.2d 290 (2005) (taking judicial notice is not fact-finding), cert.

denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006). Consequently,

unless the record indisputably reveals the conditions necessary to establish

waiver, we cannot resolve the ambiguity, and we do not apply the presumption. See State v. Davis, supra, 479–83 (declining to apply Kitchens waiver
doctrine when record did not clearly establish that counsel was afforded

notice of court’s intended jury instructions).

21 Subsequent cases from the Indiana Court of Appeals appear to have

limited, if not overruled, the holding in Bunch. Even though Bunch applied

a de novo credibility review of live testimony, the Indiana Court of Appeals

has since explained thatit will not apply a de novo standard in cases involving

live testimony, even when the credibility assessments of that testimony

were based on objective factors, and that it will instead apply a clear error

standard. See, e.g., White v. State, 978 N.E.2d 475, 481 (Ind. App. 2012)

(referring to Bunch as standard for ‘‘paper’’ evidence and explaining that

‘‘[the] clearly erroneous standard of review would apply [when] a trial court

considers evidence by live testimony’’), trans. denied, 982 N.E.2d 1016 (Ind.

2013); see also Hawkins v. State, Indiana Court of Appeals, Docket No.

27A02-1301-PC-47 (Ind. App. August 20, 2013) (citing Bunch but declining to

second-guess trial court’s credibility assessment because of conflict between

witness’ live testimony and events that were depicted on video recording

of incident at issue), trans. denied, 998 N.E.2d 213 (Ind. 2013).

22 The majority has not cited any Strickland/Brady prejudice cases from

any other jurisdictions that follow the principle in Bunch. The majority, in

a footnote; see footnote 41 of the majority opinion; discusses State v. Behn,

375 N.J. Super. 409, 868 A.2d 329 (App. Div.), cert. denied, 183 N.J. 591, 874

A.2d 1108 (2005), in support of its new standard, but that case is even less

helpful to the majority because it did not involve the credibility of live

testimony but, rather, evidence submitted by affidavit. See id., 424–28. Like

Bunch, Behn was not a Brady or Strickland case but involved a newly

discovered evidence claim. Id., 414. The defendant in Behn based his claim

on affidavits rather than on live testimony. See id., 424–28. And, although

the court in Behn concluded that affidavits were sufficient for the defendant

to prevail on his newly discovered evidence claim in New Jersey, we have

rejected the notion that our trial courts can rely on printed, out-of-court

statements from new witnesses to order a new trial on the basis of newly

discovered evidence. Adams v. State, supra, 259 Conn. 842–46 (rejecting

notion that trial court can assess credibility from transcript and remanding

case to trial court for evidentiary hearing so that that court could observe

new witness testimony).

My own review demonstrates that, in the Strickland/Brady prejudice

context, other jurisdictions apply a deferential standard of review, just

as we do, even with respect to new expert testimony. For example, in

Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523 (2009), the Pennsylvania Supreme Court expressly concluded that the question of new witness

credibility in the Strickland/Brady prejudice context presented an issue of

fact for the trial court. See id., 357 (‘‘[i]ndeed, one of the primary reasons

[postconviction] hearings are held in the first place is so that credibility

determinations can be made; otherwise, issues of material fact could be

decided on pleadings and affidavits alone’’). That court further explained

that assessing credibility in this context is ‘‘not necessarily the same thing

as assessing credibility at a trial . . . but must be made with an eye to the

governing standard of a ‘reasonable probability’ that the outcome of the

trial could have been different.’’ Id., 359. Consequently, ‘‘the question is

whether the nature and quality of the evidence is such that there is a

reasonable probability that the jury would have credited it . . . .’’ Id., 361.

Pennsylvania applies the same deference to claims based on new expert

testimony. See, e.g., Commonwealth v. Basemore, 560 Pa. 258, 295–96, 744

A.2d 717 (2000) (remanding Strickland case to postconviction court for

findings as to credibility of new expert opinions). Cases from other jurisdictions are in accord. See, e.g., Taylor v. State, 62 So. 3d 1101, 1115 (Fla.

2011) (noting, with respect to Brady claim involving new expert testimony

‘‘the postconviction court explicitly determined to be unreliable,’’ that ‘‘[the

reviewing] court will defer to the factual findings of the postconviction

court on this issue as [it] does not substitute its judgment for that of the

postconviction court on questions of the credibility of witnesses and the

appropriate weight to be given to the evidence’’); Green v. State, 975 So.

2d 1090, 1107 (Fla. 2008) (deferring to trial court’s finding with respect to

Strickland claim that defendant’s new expert testimony was not credible

and denying claim on that basis); Sochor v. State, 883 So. 2d 766, 781 (Fla.

2004) (deferring, in context of Strickland claim, to postconviction court’s

decision to credit state’s expert and not defendant’s new expert); Porter v.

State, 788 So. 2d 917, 923 (Fla.) (postconviction court has duty to assess

credibility of new expert witness testimony, and appellate court will defer

to this finding), cert. denied, 534 U.S. 1004, 122 S. Ct. 484, 151 L. Ed. 2d 397
(2001); People v. Thomas, 364 Ill. App. 3d 91, 103, 845 N.E.2d 842 (2006)

(deferring to finding in context of Brady claim that defendant’s new witness

testimony was not credible), appeal denied, 224 Ill. 2d 590, 871 N.E.2d 60

(2007); Howell v. State, Mississippi Supreme Court, Docket No. 2013-CA01027-SCT (Miss. October 9, 2014) (same); Ferguson v. State, 325 S.W.3d

400, 413 (Mo. App. 2010) (‘‘[w]e must deny [the petitioner’s] second Brady

claim for a similar reason as we denied his first Brady claim, namely that

the motion court made . . . detailed findings that the [new witness testimony] in question was not credible and thus was not a basis for a meritorious

Brady claim’’); State v. Mau, Wisconsin Court of Appeals, Docket No. 99-

0406-CR (Wis. App. March 15, 2000) (deferring to trial court’s decision, in

context of Strickland claim, to credit state’s expert and not defendant’s

expert); see also United States v. Gary, 341 F.3d 829, 833–34 (8th Cir. 2003)

(deferring to District Court’s finding in context of Brady claim that new

witness testimony was not credible and therefore not material), cert. denied,

540 U.S. 1139, 124 S. Ct. 1128, 157 L. Ed. 2d 949 (2004).

23 Notably, the habeas court acknowledged in its memorandum of decision

that the new expert testimony likely would not be admissible because, with

no reliable way to establish the fire’s burn time, the new expert evidence

would not be helpful to a jury and thus would not qualify for admission.

The court first set forth the basic test for the admission of expert testimony:

‘‘Expert testimony generally is admissible if (1) the witness has a special

skill or knowledge directly applicable to a matter in issue, (2) that skill or

knowledge is not common to the average person, and (3) the testimony

would be helpful to the court or jury in considering the issues.’’ (Internal

quotation marks omitted.) The court then concluded that, although the new

testimony met the first two requirements for admission, it did not meet the

third requirement because it would not be helpful: ‘‘The expert testimony

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]

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.’’

24 All references to temperature in this opinion are to the Fahrenheit scale.

25 The majority criticizes my conclusion on this point by asserting that

DeHaan’s 400 degree estimate applied to temperatures in the ‘‘hot gas layer’’

and not near floor level, where Tomkunas was crawling. The majority’s

assertion is completely contradicted by DeHaan’s testimony. DeHaan noted

that Tomkunas’ trial testimony described ‘‘the hot gases he encountered at

near floor level’’ and explained that Tomkunas would have experienced 400

degree temperatures ‘‘to the bare skin.’’ Furthermore, if it were true, as the

majority suggests, that Tomkunas was not exposed to 300 to 400 degree

temperatures because these temperatures were higher up in the apartment

than the level at which Tomkunas entered, DeHaan’s claim that Tomkunas

could not even enter the apartment because he would have been exposed

to 300 to 400 degree temperatures would make no sense.

26 The following is the relevant portion of the discussion between the

petitioner’s counsel and DeHaan at the habeas hearing:

‘‘Q. Could you determine what the level of the heat [from the fire] was?

‘‘A. Yes. Based on the established relationship between the height of the

flames and the—even against the wall and the size of the fire, I estimated

that the fire never got much more than—well, it was in the order of 250 to

350 kilowatts at its maximum.

‘‘Q. Meaning what?

* * *

‘‘A. It 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, and

if you were there at the time—

‘‘Q. At the time it was set?

‘‘A. No. At the time it was—it reached its maximum . . . .’’

27 The 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. The majority thus seems to believe

that a de novo review allows it not only to make its own findings, but also

to create its own facts to reconcile inconsistencies in the witness’ testimony.

28 The following is an excerpt of the respondent’s counsel’s cross-examina-
tion of Kelder:

‘‘Q. What methodology did you follow in conducting this investigation?

‘‘A. The methodology that I followed was that of my experiences for over

3000 fires, determining cause and origin for a number of years, and also my

familiarity with some fire textbooks that I have in my library, and, also, I

am familiar with [Publication] 921 to a lesser degree. I’m not certified, but

[chapter] 4 [of Publication 921] would indicate the same thing in [chapter]

4 as I would have used in that fire.

‘‘Q. What is [Publication] 921?

‘‘A. [Publication] 921 . . . is sort of like a bible for fire investigators

through the National [Fire Protection] Association . . . .’’ (Emphasis

added.)

29 The following is the relevant portion of the cross-examination of Kelder:

‘‘Q. Did you follow the basic methodology set forth in chapter 4 in conducting this investigation?

‘‘A. No, I did not.

‘‘Q. Why not?

‘‘A. Because I based my investigation—this is a guideline that you’re

showing me. I base my information on more factual information, such as

the photographs, the reports, the [video recording], etc. All of those things

gave me a source of avenue to follow to complete my investigation based

on those facts.’’

30 The habeas court characterized Kelder’s 1800 to 2000 degree estimate

of the ceiling temperature as ‘‘wildly exaggerated’’ and discredited Kelder’s

testimony in part on this basis. The majority, however, found that there was

‘‘no factual basis’’ for this finding. In light of DeHaan’s testimony that it is

impossible for temperatures in the apartment to have exceeded 450 degrees,

the habeas court did have a valid basis forrejecting this testimony, undermining the majority’s own conclusions on this point. Furthermore, in view of

the experts’ wildly varying estimates—Corry indicated that temperatures

could have reached 600 degrees—the habeas court had good reason to

conclude that a reliable determination simply could not be made with the

limited data available.

31 ‘‘[A] flashover . . . occurs when the heat is so intense that material

ignites spontaneously.’’ (Internal quotation marks omitted.) American

National Fire Ins. Co. v. Schuss, 221 Conn. 768, 772, 607 A.2d 418 (1992).

32 The respondent’s fire investigator, Corry, testified that he initially

thought the couch was made of rubber foam but changed his opinion to

polyurethane foam. He made clear, however, that, without the ability to test

the actual materials, it was impossible to be certain what kind of materials

were in the couch and that a positive identification cannot be made through

only a review of photographs.

33 One of the petitioner’s experts, Kelder, determined from his review of

the crime scene photographs that one of the windows in the apartment

was likely opened slightly during the fire. He explained that one of the

photographs showed soot stains on the exterior of the building above the

window, indicating that some smoke had escaped through a small opening

in the window. In addition, Tomkunas testified that when he first approached

the apartment, he could see smoke coming from a window in front of

the apartment.

34 The majority characterizes Corry’s reliance on eyewitness testimony as

unscientific. But this criticism overlooks Corry’s conclusion, based on his

analysis using established scientific methods, that one cannot determine

the fire’s burn time with any reasonable degree of certainty.

35 In addition to his Strickland claim based on an alleged Brady violation,

the petitioner has offered an alternative ground for affirming the Appellate

Court’s judgment. The majority has not reached this claim, so I address it

only briefly. The crux of that claim is that the petitioner’s criminal trial

counsel rendered ineffective assistance because they failed to emphasize

certain discrepancies between the petitioner’s third confession and the physical evidence found at the crime scene. I have reviewed the relevant transcripts and evidence, and, for the reasons set forth in the habeas court’s

memorandum of decision, I am not persuaded that the petitioner is entitled

to a new trial on this alternative basis.