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*********************************************** 
KURTIS TURNER v. COMMISSIONER

OF CORRECTION

(AC 39131)

Sheldon, Keller and Eveleigh, Js.

Syllabus

The petitioner, who had been convicted of murder in connection with a

dispute that led to the shooting death of the victim, sought a writ of

habeas corpus, claiming that the habeas court abused its discretion in

denying his petition for certification to appeal because his due process

right to a fair trial was violated when the prosecutor failed to disclose

material exculpatory evidence that was favorable to the defense in

violation of Brady v. Maryland (373 U.S. 83). The state had purchased

plane fare for P to travel to Connecticut to testify at the petitioner’s

trial. The prosecutor had told P that if he believed she testified truthfully,

he would notify the prosecutor handling certain charges pending against

P of her cooperation. Prior to trial, P had told the police that an individual

other than the petitioner had stated during the dispute that somebody

was going to die within forty-eight hours. P changed her story at trial

and testified that it was the petitioner who had made that statement.

When P denied during her testimony that she was hoping for consideration, aside from the plane fare, in exchange for her testimony, the

prosecutor did not correct her statement. The habeas court concluded

that no Brady violation had occurred because there was no evidence

of a formal plea agreement between P and the state, and rendered

judgment denying the habeas petition. Thereafter, the court denied the

petition for certification to appeal, and the petitioner appealed to this

court. Held that the habeas court abused its discretion in denying the

petition for certification to appeal with regard to the petitioner’s claim

that he was denied his due process right to a fair trial in violation of

Brady, as the issues involved were debatable among jurists of reason

and could have been resolved by a court in a different manner: the

prosecutor’s failure to correct the false testimony of P that she did not

expect to receive any consideration in exchange for her testimony was

material for purposes of Brady and violated the petitioner’s due process

right to a fair trial, and when the probable effect of P’s testimony was

weighed against the petitioner’s ability to impeach her and the weaknesses of the state’s case, there was a reasonable likelihood that the

false testimony could have affected the verdict such that the petitioner

was entitled to a new trial, as the strength of the state’s case was not

overwhelming, P was a crucial witness for the state in that her testimony

provided evidence of motive, intent and means on the part of the petitioner, and negated any effect that his self-defense argument may have

had on the jury, the state relied heavily on P’s testimony in its closing

argument, and, therefore, any evidence that could have affected her

credibility would have been vital to the defense; moreover, the habeas

court applied an incorrect legal standard when it determined that the

petitioner had not proven a Brady violation resulting from the state’s

failure to disclose P’s informal agreement with the state to receive

consideration in exchange for her testimony at the petitioner’s criminal

trial, as the habeas court’s conclusion that no exculpatory evidence was

withheld from the petitioner was premised on its factual finding that

there was no evidence of a plea agreement between the state and P,

and it was not necessary for the petitioner to establish the existence

of a formal plea agreement in order to prove a Brady violation, as

evidence that merely suggests an informal understanding between the

state and a witness may constitute impeachment evidence for purposes

of Brady and such evidence is not limited to the existence of a plea

agreement.

Argued December 7, 2017—officially released May 8, 2018

Procedural History
Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district

of Tolland, where the petition was withdrawn in part;

thereafter, the matter was tried to the court, Sferrazza,

J.; judgment denying the petition; subsequently, the

court denied the petition for certification to appeal,

and the petitioner appealed to this court. Reversed;

judgment directed.

Vishal K. Garg, assigned counsel, for the appellant

(petitioner).

Stephen M. Carney, senior assistant state’s attorney,

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

attorney, for the appellee (respondent).
Opinion

EVELEIGH, J. The petitioner, Kurtis Turner, appeals

following the denial of his petition for certification to

appeal from the judgment of the habeas court denying

his petition for a writ of habeas corpus. On appeal, the

petitioner claims that the habeas court (1) abused its

discretion in denying his petition for certification to

appeal, and (2) improperly concluded that there were

no violations of Brady v. Maryland, 373 U.S. 83, 83 S.

Ct. 1194, 10 L. Ed. 2d 215 (1963), at his underlying

criminal trial.1 For the reasons set forth herein, we agree

with the petitioner and conclude that the habeas court

abused its discretion in denying the petition for certification to appeal and in denying the petition for a writ

of habeas corpus. Accordingly, we reverse the judgment

of the habeas court and remand the matter for a new

trial.

The following facts and procedural history are relevant to our resolution of this appeal. After a jury trial,

the petitioner was convicted of murder in violation of

General Statutes § 53a-54a (a) and sentenced to sixty

years incarceration. Our prior decision on the petitioner’s direct appeal in State v. Turner, 133 Conn. App.

812, 37 A.3d 183, cert. denied, 304 Conn. 929, 42 A.3d

390 (2012), set forth the following facts: ‘‘In June, 2007,

the [petitioner] was living in an apartment in New London with Curtis McGill. McGill had, on several occasions, sold the drug PCP to Lakisha Alexander, the

sister of Vernall Marshall, the victim. At some point

during or near in time to April, 2007, Alexander stole

some PCP from McGill’s apartment. McGill later discovered that she had done so and told her that she owed

him a favor.

‘‘On June 19, 2007, Alexander, the victim, and two of

the victim’s friends encountered McGill, who was alone,

on Bank Street in New London. The victim approached

McGill, and the two of them conversed apart from the

others. During the conversation, the victim told McGill

that he would not let McGill disrespect his sister. After

talking with McGill for two to five minutes, the victim

walked back to Alexander and the others. McGill

appeared to be upset, remarking several times that he

felt threatened.

‘‘Subsequent to this encounter with the victim, McGill

made a telephone call, and, three to five minutes later,

a car came down Bank Street and parked next to McGill.

Three individuals got out of the car, one of whom was

the [petitioner], who was holding a gun. The [petitioner]

waved the gun in the air and pointed it at the victim,

proclaiming, ‘I’ll do anybody out here,’ ‘You want to die?’

and, ‘somebody is going to die.’ After approximately

one minute, McGill told the [petitioner] to stop, and the

[petitioner] lowered the gun and returned to the car

with the other two individuals. The three of them left
in the car, and McGill walked away from the victim,

Alexander and the others. On the way back to the apartment, the [petitioner] repeatedly remarked that

‘[w]ithin forty-eight hours somebody is going to die.’

‘‘On the night of June 20, 2007, the victim was in New

London having drinks with friends. He had gone into

New London with his friend, Shannon Johnson, and

later that evening he met up with Alexander. In the

early morning hours of June 21, 2007, the victim again

met up with Johnson on the sidewalk just outside the

front entrance to Ernie’s Cafe ́ on Bank Street. At this

time, the [state claims, the petitioner] approached the

victim and shot him in the head. Emergency personnel

took the victim by ambulance to a nearby hospital,

where, after approximately twelve minutes of medical

care, he was pronounced dead.

‘‘On January 8, 2008, the state filed an information

charging the [petitioner] with murder in violation of

§ 53a-54a (a). On May 28, 2008, attorney Raul [DavilaCarlos] was appointed as a special public defender to

represent the [petitioner], which he did for approximately one year without complaint. Beginning on the

first day of jury selection on May 28, 2009, the [petitioner] made several requests that the court remove

[Davila-Carlos] as his counsel and either appoint new

counsel or allow him to represent himself. The court

denied the [petitioner’s] requests to have new counsel

appointed, noting that the requests were made on the

eve of trial. The trial then proceeded with [Davila-Carlos] representing the [petitioner]. . . .

‘‘On July 16, 2009, at the conclusion of the state’s

case-in-chief, the [petitioner] made an oral motion for

a judgment of acquittal, asserting that the evidence was

insufficient to establish guilt beyond a reasonable

doubt, which the court denied. The jury returned a

verdict of guilty, and the [petitioner] was sentenced

to sixty years incarceration.’’ Id., 814–16. This court

affirmed the petitioner’s conviction on direct appeal.

See id., 814.

On March 1, 2013, the petitioner, in a self-represented

capacity, filed a petition for writ of habeas corpus. On

May 8, 2015, the petitioner, represented by appointed

counsel, filed the amended petition operative in this

appeal. In the amended petition, the petitioner alleged

that (1) his constitutional right to the effective assistance of trial counsel was violated, (2) his right to due

process was violated by the prosecuting authority’s

knowing presentation of false testimony, and (3) his

right to due process was violated by the prosecuting

authority’s failure to disclose material exculpatory evidence.2 The habeas trial was held over three days from

September 28, 2015 to September 30, 2015. The petitioner presented the testimony of, inter alia, Raul Davila-Carlos, the petitioner’s trial counsel, and John P.

Gravelec-Pannone, the prosecuting attorney in the peti-
tioner’s case. Following the trial, the habeas court, Sferrazza, J., denied the petition in a written decision in

which it concluded that the petitioner had not met his

burden to prove ineffective assistance of counsel or a

violation of his due process rights. Thereafter, the

habeas court denied the petition for certification to

appeal, and this appeal followed. Additional facts and

procedural history will be set forth as necessary.

I

The petitioner claims that the habeas court abused

its discretion in denying his petition for certification to

appeal from the denial of his petition for a writ of

habeas corpus with respect to his claim of due process

violations. We agree.

‘‘Faced with a habeas court’s denial of a petition for

certification to appeal, a petitioner can obtain appellate

review of the dismissal of his petition for habeas corpus

only by satisfying the two-pronged test enunciated by

our Supreme Court in Simms v. Warden, 229 Conn.

178, 640 A.2d 601 (1994), and adopted in Simms v.

Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,

[the petitioner] must demonstrate that the denial of

his petition for certification constituted an abuse of

discretion. . . . Second, if the petitioner can show an

abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the

merits. . . . To prove that the denial of his petition for

certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are

debatable among jurists of reason; that a court could

resolve the issues [in a different manner]; or that the

questions are adequate to deserve encouragement to

proceed further. . . .

‘‘In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must consider the merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by [our Supreme

Court] for determining the propriety of the habeas

court’s denial of the petition for certification.’’ (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn. App. 813,

821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,

156 A.3d 536 (2017).

As discussed in part II of this opinion, because the

resolution of the petitioner’s underlying claim involves

issues that are debatable among jurists of reason and

could have been resolved by a court in a different manner, we conclude that the habeas court abused its dis-
cretion in denying certification to appeal from the denial

of the petition for a writ of habeas corpus.

II

The petitioner claims that his due process rights were

violated by the prosecuting attorney’s knowing presentation of false or misleading testimony and failure to

disclose material impeachment evidence as required by

Brady v. Maryland, supra, 373 U.S. 83. Specifically, the

petitioner argues that (1) Gravelec-Pannone failed to

correct the false testimony of Alice Philips, a cooperating witness for the prosecution, that she had not

received consideration in exchange for her testimony;

and (2) the prosecution failed to disclose the material

exculpatory evidence that the state had provided consideration in exchange for the testimony of Philips, who

was a friend of the victim and testified on behalf of the

state about the dispute among the petitioner, McGill

and the victim.

The following additional facts are relevant to this

issue. In her initial statement to the police, Philips told

them that McGill was the individual who said that somebody was going to be dead within forty-eight hours.

Prior to testifying at the petitioner’s trial, GravelecPannone told Philips that if he believed she testified

truthfully, he would notify the prosecutor handling her

own pending charges of her cooperation. The State’s

Attorney’s Office also purchased plane fare for Philips,

who traveled from Michigan to Connecticut to testify

at the petitioner’s trial.

At the petitioner’s trial, Philips admitted that she was

flown in by the state to answer to her outstanding warrants and had just been arraigned on those charges. Her

defense counsel was present throughout her testimony.

Notably, Philips changed her story when she testified

at trial that the petitioner, rather than McGill, uttered

the statement that somebody was going to die within

forty-eight hours. Furthermore, when asked if she was

hoping for any consideration, aside from the plane fare,

in exchange for her testimony, Philips answered, ‘‘no.’’

Gravelec-Pannone did not correct that statement.

After testifying at the petitioner’s trial, Philips was

transported to the geographical area number ten courthouse in New London to plead guilty on her outstanding

charges. Peter A. McShane, a prosecutor in that courthouse at the time Philips was put to plea, informed

the court, McMahon, J., that she had cooperated and

testified on behalf of the state at the petitioner’s trial.

Thereafter, Philips received a one year sentence, fully

suspended, with a one year conditional discharge where

the sole condition was not to return to Connecticut.

At the petitioner’s habeas trial, McShane testified that

Philips’ case ‘‘just showed up on the docket,’’ and that

he did not remember who advised him of the fact that

Philips had testified in a case in the part A court. Addi-
tionally, McShane testified that it did not appear that

he or anyone else working in his office at the geographical area number ten courthouse ever made a sentencing

recommendation to Judge McMahon; it appeared that

the judge sua sponte came up with a court-indicated

sentence for Philips.

Gravelec-Pannone testified that after Philips was

done testifying in the petitioner’s case, he instructed

his inspector to let the prosecutor in Philips’ case know

that she had testified to his satisfaction. Gravelec-Pannone acknowledged that notifying the prosecutor in

Philips’ case that she had testified helpfully was a form

of consideration in exchange for her testimony, ‘‘but

no specific consideration that you’re going to get this

deal up front if you do that.’’ He indicated, however,

that he did not correct Philips’ statement that she was

not expecting consideration because he did not want

to impeach his own witness. He indicated that his office

would not have told the prosecutors in the geographical

area number ten courthouse what to do with Philips’

cases, but would make them aware that she was going

to be a witness in their case and would keep them

posted as to what happened in the part A court. He

also testified that Philips’ father was a marshal in the

New London part A court, and that he had ‘‘used his

efforts’’ to persuade Philips to come back from Michigan to ‘‘testify and face the music’’ regarding her pending charges in Connecticut. After Philips’ outstanding

cases were resolved, Gravelec-Pannone ‘‘communicated [to Davila-Carlos] [the] fact that [Philips’] cases

were resolved, and she would be heading back to Michigan shortly thereafter, but [Davila-Carlos] was aware

that [Philips] was still in New London and capable of

being served with a subpoena if [Davila-Carlos] needed

to do that.’’ The State’s Attorney’s Office paid for an

airline ticket for Philips to return to Michigan the day

after she pleaded guilty.

Davila-Carlos testified that he did not have a recollection of the state informing him of the agreement with

Philips, but that he could have argued the issue of Philips’ credibility to the jury if he had known of a prior

agreement. He also testified that he had not wanted

to discredit Philips’ testimony too much because he

believed her recollection of the dispute between the

petitioner and the victim aided in his self-defense

argument.

On the basis of this testimony, the habeas court concluded that the petitioner had failed to establish a Brady

violation because ‘‘no exculpatory evidence was withheld from the petitioner, nor did [Philips] testify falsely

at his criminal trial.’’

We next set forth our standard of review and the

applicable legal principles governing Brady claims. As

set forth by the United States Supreme Court in Brady

v. Maryland, supra, 373 U.S. 87, ‘‘[t]o establish a Brady
violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence

was favorable to the [petitioner], and (3) it was material

[either to guilt or to punishment].’’ (Internal quotation

marks omitted.) Morant v. Commissioner of Correction, 117 Conn. App. 279, 295, 979 A.2d 507, cert. denied,

294 Conn. 906, 982 A.2d 1080 (2009). ‘‘Whether the petitioner was deprived of his due process rights due to a

Brady violation is a question of law, to which we grant

plenary review.’’ (Internal quotation marks omitted.)

Peeler v. Commissioner of Correction, 170 Conn. App.

654, 689, 155 A.3d 772, cert. denied, 325 Conn. 901, 157

A.3d 1146 (2017).

‘‘[T]he suppression by the prosecution of evidence

favorable to an accused upon request violates due process [when] the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad

faith of the [prosecutor]. . . . The United States

Supreme Court also has recognized that [t]he jury’s

estimate of the truthfulness and reliability of a . . .

witness may well be determinative of guilt or innocence,

and it is upon such subtle factors as the possible interest

of the witness in testifying falsely that a defendant’s

life or liberty may depend. Napue v. Illinois, 360 U.S.

264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). Accordingly, the Brady rule applies not just to exculpatory

evidence, but also to impeachment evidence . . .

which, broadly defined, is evidence having the potential

to alter the jury’s assessment of the credibility of a

significant prosecution witness. . . . Because a plea

agreement is likely to bear on the motivation of a witness who has agreed to testify for the state, such

agreements are potential impeachment evidence that

the state must disclose. . . .

‘‘[A] prosecutor’s failure to disclose favorable evidence will constitute a violation of Brady only if the

evidence is found to be material. . . . In a classic

Brady case . . . the evidence will be deemed material

only if there would be a reasonable probability of a

different result if the evidence had been disclosed.’’

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

Conn. 354, 370, 102 A.3d 1 (2014).

A

We first address the petitioner’s claim that the prosecutor’s failure to correct Philips’ false testimony that

she did not expect any consideration for her testimony

deprived him of his due process right to a fair trial

under Brady. In response, the respondent, the Commissioner of Correction, argues that even if the witness

did testify falsely and the prosecutor failed to correct

that testimony, there was no reasonable likelihood that

the misleading testimony could have affected the judgment of the jury. We agree with the petitioner.

We set forth the legal principles applicable to this
issue. The state has a duty to correct the record if it

knows that a witness has testified falsely. See Diaz v.

Commissioner of Correction, 174 Conn. App. 776, 796,

166 A.3d 815 (‘‘[D]ue process is . . . offended if the

state, although not soliciting false evidence, allows it

to go uncorrected when it appears. . . . If a government witness falsely denies having struck a bargain with

the state, or substantially mischaracterizes the nature

of the inducement, the state is obliged to correct the

misconception.’’ [Internal quotation marks omitted.]),

cert. denied, 327 Conn. 957, 172 A.3d 204 (2017); see

also Gomez v. Commissioner of Correction, 178 Conn.

App. 519, 539, 176 A.3d 559 (2017) (‘‘[r]egardless of the

lack of intent to lie on the part of the witness, Giglio

[v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed.

2d 104 (1972)] and Napue [v. Illinois, supra, 360 U.S.

264] require that the prosecutor apprise the court when

he knows that his witness is giving testimony that is

substantially misleading’’ [internal quotation marks

omitted]), cert. granted on other grounds, 328 Conn.

916, A.3d (2018).3

‘‘When . . . a prosecutor obtains a conviction with

evidence that he or she knows or should know to be

false, the materiality standard [of Brady] is significantly

more favorable to the defendant. [A] conviction

obtained by the knowing use of perjured testimony is

fundamentally unfair, and must be set aside if there is

any reasonable likelihood that the false testimony could

have affected the judgment of the jury. . . . This standard . . . applies whether the state solicited the false

testimony or allowed it to go uncorrected . . . and is

not substantively different from the test that permits

the state to avoid having a conviction set aside, notwithstanding a violation of constitutional magnitude, upon

a showing that the violation was harmless beyond a

reasonable doubt. . . . This strict standard of materiality is appropriate in such cases not just because they

involve prosecutorial misconduct, but more importantly because they involve a corruption of the truthseeking function of the trial process. . . . In light of

this corrupting effect, and because the state’s use of

false testimony is fundamentally unfair, prejudice sufficient to satisfy the materiality standard is readily shown

. . . such that reversal is virtually automatic . . .

unless the state’s case is so overwhelming that there

is no reasonable likelihood that the false testimony

could have affected the judgment of the jury. . . .

‘‘In accordance with these principles, our determination of whether [the witness’] false testimony was material under Brady and its progeny requires a careful

review of that testimony and its probable effect on the

jury, weighed against the strength of the state’s case

and the extent to which [the petitioner was] otherwise

able to impeach [the witness].’’ (Emphasis in original;

internal quotation marks omitted.) State v. Jordan,

supra, 314 Conn. 370–71.
Applying the foregoing principles to the petitioner’s

claim, we conclude that the prosecutor’s failure to correct the false testimony of Philips that she was not

hoping for any consideration in exchange for her testimony violated the petitioner’s due process right to a fair

trial. Weighing the probable effect of Philips’ testimony

against the petitioner’s ability to impeach her and the

weaknesses of the state’s case, we conclude that there

is a reasonable likelihood that the false testimony could

have affected the judgment of the jury. The state’s theory of the case, namely, that the petitioner shot the

victim as part of the dispute between McGill, the petitioner and the victim, was largely dependent on Philips’

testimony. Philips testified that on the day before the

shooting, she witnessed the petitioner pull a gun out

of his hoodie with his right hand, wave the gun around,

and point it at the victim. She testified that the petitioner

said, ‘‘you want to die, you want to die,’’ followed by,

‘‘before [forty-eight] hours they was gonna die.’’ The

petitioner put the gun back into his hoodie when McGill

told him to stop. The petitioner and Philips then left

the scene in the car of a friend, Shauntay. On the ride

back to Shauntay’s house, the petitioner again stated,

‘‘within [forty-eight] hours somebody is going to die.’’

Alexander was the only other witness who testified

about the dispute between the petitioner and the victim

on the night before the shooting, but her testimony was

far less detailed than Philips’ description of the event.

Alexander testified that the petitioner had a gun and

‘‘kind of waved it in the air,’’ and stated, ‘‘I’ll do anybody

out here.’’ Alexander, however, had substantial credibility issues; she was the sister of the victim, had a significant PCP addiction during 2007, and admitted that she

was the individual who stole PCP from McGill in the

months before the shooting. Although Alexander

claimed not to know the substance of the argument

between the victim, the petitioner and McGill, Philips

testified that the three were clearly arguing about Alexander owing McGill money for the PCP she stole. Additionally, Philips testified that Alexander appeared to be

high on PCP at the time of the dispute.

The state also offered a surveillance video into evidence to support its theory that the petitioner had killed

the victim. On the night of June 20, 2007, Ernie’s Cafe ́

had surveillance cameras pointed in the direction of

the entrance to the bar. At approximately 12:19 a.m. on

June 21, 2007, the video recording showed the petitioner

get up from a table where he was sitting with friends

and walk toward the entrance to the bar. The petitioner

was dressed in a dark shirt, light colored jeans, and

a black baseball cap. The petitioner reached into the

waistband of his jeans with his right hand as he walked

to the front door. As the petitioner reached the entrance,

the video recording showed the victim fall to the ground

just outside the front door. The petitioner then ran out
the front door and to his right toward Golden Street.

The state acknowledged, however, that the video

does not clearly show the petitioner as the shooter of

the victim.4 The state was also unable to offer any physical evidence that identified the petitioner as the shooter

of the victim, such as fingerprints, DNA, or bullet fragments. Because the state relied heavily on Philips’ testimony in its closing argument, labelling her a ‘‘very

important’’ witness in the case who ‘‘straddle[d] or

reflect[ed] both sides in this matter,’’ her credibility was

important to the jury’s verdict. The petitioner’s trial

counsel was unable to cross-examine or impeach Philips regarding her false testimony about the consideration she anticipated receiving for her favorable

testimony because he was not informed that Philips

received any consideration for such testimony until

after she was done testifying at the petitioner’s trial.

Against this background, we conclude that the prosecutor’s failure to correct Philips’ false testimony was

material for the purposes of Brady. Philips was a crucial

witness for the state. Her testimony provided evidence

of motive, intent, and means on the part of the petitioner. Further, her testimony negated any possible

effect that the self-defense argument by the petitioner’s

trial counsel may have had on the jury because it painted

the petitioner as an aggressor. Therefore, any evidence

that would affect her credibility would be vital to the

defense. The petitioner is entitled to a new trial because

the strength of the state’s case was not so overwhelming

that there is no reasonable likelihood that the witness’

false testimony affected the judgment of the jury. Cf.

State v. Jordan, supra, 314 Conn. 372.

B

The petitioner also claims that he suffered a violation

of his due process rights under Brady because the prosecution did not disclose Philips’ informal agreement

with the state to receive consideration in exchange for

her testimony at the petitioner’s trial. In response, the

respondent argues that no material evidence was withheld from the petitioner because Philips’ pending

charges were disclosed. Because we determine that the

habeas court applied an incorrect legal standard to this

issue, the petitioner is entitled to a new trial.

The habeas court’s conclusion that ‘‘no exculpatory

evidence was withheld from the petitioner’’ was premised on its factual finding that there was no evidence

of a plea agreement between the state and Philips. Our

case law is clear, however, that the petitioner need not

establish the existence of a formal plea agreement in

order to prove a Brady violation. ‘‘[E]vidence that

merely suggests an informal understanding between the

state and a state’s witness may constitute impeachment

evidence for the purposes of Brady. . . . Such evidence is by no means limited to the existence of plea
agreements.’’ (Citation omitted; emphasis in original.)

Diaz v. Commissioner of Correction, supra, 174 Conn.

App. 798. ‘‘An agreement by a prosecutor with a cooperating witness to bring the witness’ cooperation to the

attention of the judge who later sentences the witness

on his own pending criminal charges is a deal that

must be disclosed to the defendant against whom [she]

testifies, even if the deal does not involve a specific

recommendation by the prosecutor for the imposition

of a particular sentence.’’ Hines v. Commissioner of

Correction, 164 Conn. App. 712, 725, 138 A.3d 430

(2016); see also Walker v. Commissioner of Correction,

103 Conn. App. 485, 493, 930 A.2d 65 (‘‘[a]ny such understanding or agreement between any state’s witness and

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

the ambit of the Brady principles’’), cert. denied, 284

Conn. 940, 937 A.2d 698 (2007).

It is generally undisputed that there was an informal

agreement between Philips and the prosecutor for her

cooperation at the petitioner’s trial, and that she

received consideration for her favorable testimony.

Gravelec-Pannone acknowledged that notifying the

prosecutor in Philips’ case that she had cooperated at

the petitioner’s trial was a form of consideration. The

court, therefore, applied the incorrect legal standard

when it determined that the petitioner had not proven

a Brady violation because there was no evidence of a

formal plea agreement between Philips and the state.

‘‘[W]hether the court applied the correct legal standard is a question of law subject to plenary review.

. . . When an incorrect legal standard is applied, the

appropriate remedy is to reverse the judgment of the

trial court and to remand the matter for further proceedings.’’ (Internal quotation marks omitted.) Carraway v.

Commissioner of Correction, 144 Conn. App. 461, 471,

72 A.3d 426 (2013), appeal dismissed, 317 Conn. 594,

119 A.3d 1153 (2015). Accordingly, the petitioner is entitled to a new trial on this basis.

In sum, we conclude that the petitioner has established that he suffered a Brady violation at his criminal

trial when the prosecutor failed to correct Philips’ false

testimony that she did not expect to receive any consideration, aside from plane fare, in exchange for her testimony. Additionally, we conclude that the habeas court

applied an incorrect legal standard in determining

whether the petitioner suffered a Brady violation in

that Philips’ informal agreement with the state was not

disclosed to the defense. On those bases, we further

conclude that the habeas court abused its discretion in

denying the petition for certification to appeal from the

denial of the petition for a writ of habeas corpus.

The judgment is reversed and the case is remanded

with direction to render judgment granting the petition

for a writ of habeas corpus, to vacate the petitioner’s

conviction under § 53a-54a (a) and to order a new trial
on that offense.

In this opinion the other judges concurred.

1 Additionally, the petitioner claims that the habeas court improperly concluded that he failed to establish the ineffectiveness of his trial counsel. In

light of our decision to grant the petitioner relief from his challenged conviction on the basis of his Brady claim, we do not reach the merits of this

alternate substantive claim.

2 See footnote 1 of this opinion. In the amended petition, the petitioner also

alleged the ineffective assistance of his appellate counsel. The petitioner,

however, withdrew that count on September 28, 2015.

3 We emphasize that all attorneys have a duty of candor to the court. Rule

3.3 (a) of the Rules of Professional Conduct provides in relevant part: ‘‘A

lawyer shall not knowingly . . . (3) [o]ffer evidence that the lawyer knows

to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer,

has offered material evidence and the lawyer comes to know of its falsity,

the lawyer shall take reasonable remedial measures, including, if necessary,

disclosure to the tribunal.’’

Prosecutors also have special responsibilities to the court, proscribed by

rule 3.8 of the Rules of Professional Conduct, which provides in relevant part:

‘‘The prosecutor in a criminal case shall . . . (4) [m]ake timely disclosure

to the defense of all evidence or information known to the prosecutor that

tends to negate the guilt of the accused or mitigates the offense . . . .’’

4 During closing arguments, Gravelec-Pannone argued: ‘‘The state wishes

we could give you a clearer or more enhanced video than we’ve shown you.

. . . [T]he quality of this is not television or the movies. We can’t give you

a clear, pristine picture of the events.’’