******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
LAPOINTE v. COMMISSIONER OF CORRECTION—CONCURRENCE

ROGERS, C. J., concurring.I agree with and join in the

conclusion reached by the majority that the judgment of

the Appellate Court ordering that the petitioner, Richard Lapointe, receive a new criminal trial must be

affirmed, because the petitioner proved that he was

prejudiced by his first habeas counsel’s deficient failure

to pursue a Brady1 claim predicated on the state’s suppression of a note written by Detective Michael Ludlow

of the Manchester Police Department, who was the

initial lead investigator in the crimes underlying the

petitioner’s conviction (Ludlow note). See State v.

Lapointe, 138 Conn. App. 454, 53 A.3d 257 (2012). More

specifically, the petitioner has shown that, had the Ludlow note been disclosed prior to his criminal trial, the

probability of a different outcome is sufficient to undermine confidence in the result of that trial.

Although I embrace, for the most part, the thorough

and persuasive analysis employed by the majority to

reach this conclusion, I write separately to disavow the

majority’s repeated reliance on law review and social

science articles postdating the petitioner’s criminal trial

by many years as part of its assessment of the strength

of the evidence supporting the petitioner’s conviction

and, by extension, the likelihood that the addition of the

burn time evidence would have altered the outcome.2

Instead, I conclude that the record of the petitioner’s

criminal trial standing alone, withoutthe embellishment

of subsequently produced research and literature that

was not in existence and, therefore, could not have

been considered by the jury at that trial, adequately

demonstrates that the case against the petitioner was

not a particularly compelling one.

Because the majority opinion outlines the trial evidence and its weaknesses in detail, a brief summary

here will suffice. The physical evidence against the petitioner was practically nonexistent, such that the case

rested almost entirely upon his own incriminating statements. Those statements were characterized by vacillation and equivocation, were expressed in an odd,

confirming fashion accompanied by repeated denials of

recollection and, on multiple points, were inconsistent

with the physical evidence. Significantly, the petitioner

inaccurately described the victim’s clothing, the number of stab wounds and the location in her apartment

at which they were inflicted, and the method of her

strangulation. It further was undisputed that the petitioner suffered from a congenital malformation of the

skull that left him with cognitive, physical and sensory

deficits. Numerous acquaintances and relatives testified

as to his simplemindedness and gullibility. Several psychiatrists and psychologists examined the petitioner

and also testified about his deficits, describing him simi-
larly as did the acquaintances and agreeing that he was

capable of confessing falsely to murder. Finally, various

witnesses’ testimony demonstrated that the knowledge

that the victim had been sexually assaulted was not, as

the state had asserted, uniquely in the possession of

the petitioner, but rather, was widespread.

Instead of relying solely on the foregoing weaknesses

in the petitioner’s 1992 criminal trial to conclude that

confidence in the reliability of his conviction has been

undermined, the majority supplements the trial record

with secondary materials produced only recently,

within the last five or six years. My objection to the

use of these materials is twofold. First, as a temporal

matter, they were not in existence at the time of the

petitioner’s criminal trial and, therefore, could not have

been presented to, or considered by, the jury that convicted him. Accordingly, they should not be relied upon

by this court to evaluate the likelihood of a different

result had the Ludlow note been timely disclosed. Second, as a jurisprudential matter, the majority, in discussing the content of extra-record materials in relation

to the specifics of this case, treads dangerously close

to employing those materials to make findings on appeal

in regard to the reliability of the petitioner’s confession.

This court repeatedly has drawn the distinction

between the proper use of extra-record materials such

as social science texts or journal articles as ‘‘legislative

facts . . . which help determine the content of law and

policy, and adjudicative facts . . . concerning the parties and events of a particular case. . . . Legislative

facts may be judicially noticed [on appeal] without

affording the parties an opportunity to be heard, but

adjudicative facts, at least if central to the case, may

not.’’ (Citation omitted; internal quotation marks omitted.) State v. Edwards, 314 Conn. 465, 478–79, 102 A.3d

52 (2014); see also State v. Rizzo, 303 Conn. 71, 97–98

n.16, 31 A.3d 1094 (2011); see also State v. Rizzo, supra,

184 n.81.

I also want to emphasize certain points with respect

to the majority’s conclusion in part II B of its opinion

that it need not defer to the habeas court’s determination regarding the credibility of the petitioner’s expert

witnesses. Specifically, I would emphasize that this

court is concluding that it need not defer to the habeas

court’s credibility determination only because: (1) the

habeas court is not making an ultimate finding as to

the credibility of the expert witnesses, but is determining only whether there is a reasonable probability that

the jury could credit their testimony, pursuant to the

materiality standard of Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),

and Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,

10 L. Ed. 2d 215 (1963);3 and (2) the habeas court did not

base its credibility determination on the expert witness’

personal demeanor, but on a factor that this court is

in as good a position to assess, namely, the substance
of the testimony. The majority is not holding, and I

would strongly reject any suggestion, that this court

may ever second-guess the factual findings of the ultimate finder of fact, even when those findings were

based on the cold record. The majority also is not holding that the habeas court need not be provided with an

opportunity to assess a witness’ credibility on the stand,

even when it is addressing a claim pursuant to Strickland or Brady. Rather, it is concluding that, when the

habeas court has had that opportunity, and has concluded only that the substance of the testimony undermines its credibility, this court is in as good a position

as the habeas court to make that assessment.

Accordingly, I do not share Justice Zarella’s fear,

expressed in his dissenting opinion, that, as the result

of the majority opinion, the habeas court will no longer

have any importantrole to play when addressing Strickland and Brady claims. The habeas court still must be

afforded an opportunity to assess credibility based on

the personal demeanor of witnesses and this court will

continue to defer to such assessments. The majority

concludes only that, when a credibility assessment is

not based on the witness’ demeanor or on other factors

that this court is not in a position to evaluate, but is

based solely on the substance of the evidence, this court

is not required to defer to the assessment. In addition,

I believe that the rule that the majority adopts today

should apply primarily to the testimony of expert witnesses, for whom demeanor generally is much less

important than the witness’ qualifications and the

soundness of his opinion when a finder of fact is

assessing his or her credibility, and should rarely if

ever apply to factual testimony. See State Board of

Physicians v. Bernstein, 167 Md. App. 714, 760, 894

A.2d 621 (2006) (‘‘[d]emeanor most often is a factor in

deciding the credibility of a fact witness who is testifying about a fact that may be true or false, not of an

expert who is offering his opinion based on assumed

facts’’);4

id., 760–61 (Maryland Board of Physicians was

not required to defer to administrative law judge’s

assessments of credibility of expert witnesses when

assessments were not based on demeanor). Accordingly, I have no reason to believe that the rule will be

invoked with a high degree of frequency.

In all otherrespects, I agree with the majority opinion

and its ultimate holding that the judgment of the Appellate Court should be affirmed.

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

2 The petitioner was convicted, after a jury trial, in 1992. The articles

relied upon by the majority were written between 2009 and 2013. See, e.g.,

part III C of the majority opinion (citing 2011 publication by B. Garrett);

footnote 74 of the majority opinion (citing 2013 article by D. Harkins and

2010 article by B. Garrett); footnote 83 of the majority opinion (citing 2012

article by G. Gudjonsson, 2009 article by R. Leo, and 2011 article by J. Masip).

3 Obviously, there are situations in which the habeas court does act as

the ultimate finder of fact. For example, if a petitioner raised an ineffective

assistance of counsel claim on the ground that his trial attorney was either

drunk or asleep during most of the criminal trial, the habeas court’s factual
findings on that issue would be final and binding on the reviewing court.

4

I recognize that, as Justice Zarella has pointed out in his dissenting

opinion, this court has held that the ultimate fact finder should consider

the demeanor of an expert witness when determining his or her credibility

and that this court must defer to that determination. I again emphasize that

nothing in this opinion or in the majority opinion is to the contrary. Rather,

the majority holds only that, when a habeas court is addressing a Brady

claim, has had the opportunity to considerthe demeanor of an expert witness

and has found the witness’ testimony to lack credibility on the basis of its

substance, this court need not defer to that assessment.