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GEORGE M. GOULD v. COMMISSIONER

OF CORRECTION

(AC 35093)

DiPentima, C. J., and Alvord and Foti, Js.

Argued May 19—officially released September 15, 2015
(Appeal from Superior Court, judicial district of

Tolland, Sferrazza, J.)

Damon A. R. Kirschbaum, with whom, on the brief,

was Vishal K. Garg, for the appellant (petitioner).

Melissa Patterson, assistant state’s attorney, with

whom, on the brief, were Michael Dearington, state’s

attorney, John Waddock, supervisory assistant state’s

attorney, Angela R. Macchiarulo, senior assistant

state’s attorney, and Marcia Pillsbury, assistant state’s

attorney, for the appellee (respondent).
Opinion

FOTI, J. The petitioner, George M. Gould, appeals

from the judgment of the habeas court denying his

second amended petition for a writ of habeas corpus,

following remand from our Supreme Court. See Gould

v. Commissioner of Correction, 301 Conn. 544, 571, 22

A.3d 1196 (2011). The petitioner’s habeas claims focus

on the allegedly perjured testimony of a witness at his

criminal trial. On appeal, the petitioner claims that the

habeas court’s factual findings are clearly erroneous.

We affirm the judgment of the habeas court.

This matter has a lengthy and complex procedural

history. Following a jury trial, the petitioner and his

now deceased codefendant, Ronald Taylor, were found

guilty of felony murder, robbery in the first degree,

criminal attempt to commit robbery in the first degree,

and conspiracy to commit robbery in the first degree.

See State v. Gould, 241 Conn. 1, 3, 695 A.2d 1022 (1997).

On direct appeal, our Supreme Court concluded that the

jury reasonably could have found the following facts:

‘‘On July 4, 1993, at approximately 5:35 a.m., [the

petitioner and Taylor] entered La Casa Green, a retail

store, on Grand Avenue in New Haven. The owner,

Eugenio Vega, had opened the store shortly after 5 a.m.

and was the only person in the store. [The petitioner

and Taylor] tied up Vega’s hands with electrical cord,

placed him in the store’s cooler, and fatally shot him

in the head. [The petitioner and Taylor] took money

and jewelry from Vega’s safe and searched through

Vega’s wallet.

‘‘The state’s principal witness was Doreen Stiles.1 She

testified that after she observed [the petitioner] enter

the store, she hid in the alleyway next to the store.

From her hiding place, Stiles heard the voices of three

people arguing in the store, including Vega, who was

screaming. She distinctly heard Vega and [the petitioner

and Taylor] arguing about money and opening the safe.

After a couple of minutes, Stiles heard a single gunshot.

She then observed both [the petitioner and Taylor] leave

the store.’’ Id., 5.

The jury found the petitioner and Taylor guilty. The

trial court, Fracasse, J., rendered judgment in accordance with the jury’s verdict and sentenced each of the

men to a total effective term of eighty years incarceration. Id., 4. The petitioner appealed his conviction

directly to our Supreme Court, which affirmed the petitioner’s conviction. Id., 24.

Thereafter, in October, 2003, the petitioner filed a

petition for a writ of habeas corpus. In his petition, he

alleged that he had received ineffective assistance from

his trial counsel, and that he was actually innocent. The

petitioner predicated his claim of actual innocence on

Stiles’recantation of hertrial testimony to Gerry O’Donnell, an investigator for the Public Defender’s Office.
At the first habeas trial in August, 2009, the petitioner

called Stiles to testify on his behalf. As recounted by

the second habeas court, Stiles specifically indicated

that she had fabricated the entirety of her criminal trial

testimony, and that she had provided her statement to

police after being detained during a prostitution sweep.

Stiles, a heroin addict, began to suffer withdrawal symptoms during the several hours of questioning. She testified that detectives refused to release her until she told

them what they wanted to hear, and that they informed

her that they would drive her to buy heroin if she confirmed that she was at the scene when the homicide

occurred. She further testified she was never at La Casa

Green at the time of the homicide, and had identified

the petitioner and Taylor from a photographic array

based on implicit body language given by the detectives.

See Gould v. Commissioner of Correction, supra, 301

Conn. 554.

Stiles acknowledged that she had never told anyone

that she had lied about events during the criminal trial

until she was approached by O’Donnell some time after

the petitioner’s conviction. O’Donnell initially interviewed Stiles while she was convalescing in a nursing

home, at which time she reiterated the version of events

she testified to at the criminal trial. O’Donnell, however,

later obtained a written and signed statement from

Stiles in which she recanted her trial testimony.

On the basis of Stiles’ testimony at the first habeas

trial, the habeas court, Fuger, J., concluded that her

recantation rendered the entirety ofthe petitioner’s conviction improper. See Gould v. Commissioner of Correction, Superior Court, judicial district of Tolland,

Docket No. CV05-4000409 (March 17, 2010). Judge

Fuger noted that the case ‘‘rises and falls on the testimony of [Doreen] Stiles.’’ (Internal quotation marks

omitted.) Gould v. Commissioner of Correction, supra,

301 Conn. 551. He concluded that ‘‘[w]hat is not proven

is that it was [the petitioner] who committed this crime.

There was no fingerprint evidence, there was no murder

weapon recovered, there were no fruits of the crime

recovered and there was no DNA evidence at the crime

scene that in any way linked the [petitioner] to this

crime. . . . [Stiles’] statement [was] the keystone of

the evidence upon which these convictions rest.’’(Internal quotation marks omitted.) Id., 556. As Stiles was

the only witness to observe the petitioner enter the

store, the first habeas court found that her testimony

was the only real evidence of the petitioner’s guilt. See

id., 549. Judge Fuger concluded that the petitioner was

entitled to relief on the basis of actual innocence, and

as a consequence he granted the petition for a writ of

habeas corpus. The respondent, the Commissioner of

Correction, appealed from that judgment to our

Supreme Court.

In Gould v. Commissioner of Correction, supra, 301
Conn. 566–71, our Supreme Court held that the habeas

court had failed to apply the appropriate test for actual

innocence, and remanded the case for a new habeas

trial. The court stated that the petitioner, after being

convicted, was no longer protected by the presumption

of innocence. Id., 567. Under the test for actual innocence articulated in Miller v. Commissioner of Correction, 242 Conn. 745, 700 A.2d 1108 (1997), the petitioner

was required to adduce evidence that demonstrated he

was not guilty. Gould v. Commissioner of Correction,

supra, 566–67. The court noted that although Stiles’

perjury entirely undermined the state’s case, it did not

satisfy the petitioner’s burden to prove his innocence.

Id. The court also noted that the petitioner had not

claimed on appeal that the use of perjured testimony

was an independent due process violation, and afforded

him the opportunity to amend his habeas petition to

advance that claim on remand. Id., 569–71.

In his second amended petition filed on November

10, 2011, the petitioner alleged that he was actually

innocent and that the use of perjured testimony by the

state constituted a violation of his due process rights

to a fair trial.2 Following a second habeas trial, the

second habeas court, Sferrazza, J., found that the petitioner had not proven that he was actually innocent. It

further found that Stiles did not commit perjury at the

criminal trial, and as a consequence, the petitioner was

not deprived of a fair trial. Judge Sferrazza based that

conclusion in part on Stiles’ subsequent disavowal of

her recantation before the start of the second habeas

trial.

Judge Sferrazza found that on July 6, 2011, Stiles told

Tony Reyes, a detective sergeant with the New Haven

Police Department, that her criminal trial testimony

was accurate. Stiles claimed that O’Donnell elicited her

recantation through a combination of threats of prosecution and gifts, as well as an implied promise that

she would receive a portion of any monetary damages

awarded to the petitioner for his wrongful incarceration. When O’Donnell stopped contacting Stiles after

she testified at the first habeas trial, she decided to

inform Reyes that her recantation was false. Stiles subsequently repeatedly switched between the two stories

to various individuals, asserting that one or the other

was true.

At the second habeas trial, the habeas court examined

the recording of Stiles’ original criminal trial testimony.

When called to testify at the second habeas trial, Stiles

exercised her fifth amendment privilege against selfincrimination and refused to testify. O’Donnell initially

testified on behalf of the petitioner at the second habeas

trial, but when recalled to provide further testimony

regarding Stiles, he also invoked his privilege against

self-incrimination. The habeas court also heard live testimony from Mary Boyd and Pamela Youmans, both
of whom Stiles testified to seeing at La Casa Green.

Although Boyd testified that she did not see Stiles at

La Casa Green, Youmans testified to observing her

before the shooting.3

The habeas court concluded that the petitioner failed

to demonstrate that Stiles had lied during the criminal

trial. The court considered the recording of her criminal

trial testimony and noted that her demeanor was calm

and assured, and that she did not appear evasive or

hesitant. Judge Sferrazza also credited Stiles’ criminal

trial testimony about the location and actions of both

Youmans and Boyd about the time of the homicide as

indicia that she was present at La Casa Green. The

court noted that the only other means by which Stiles

could have known of those witnesses was to have been

deliberately fed information by the investigating detectives. The court concluded that the petitioner failed to

adduce evidence that the detectives did so.

The court further weighed O’Donnell’s gifts and

promises of monetary compensation to Stiles and found

that they undermined the validity of the recantation he

had extracted, and by extension, the truthfulness of

Stiles’ testimony at the first habeas trial. The court

specifically noted that it believed that a tape recording

provided by O’Donnell during the first habeas trial,

which he claimed contained Youmans’ recantation,

likely was fake, noting that the discrepancies in Youmans’ manner and dialect of speech and the person on

the recording gave credibility to her claim that she was

not speaking on the tape. The court further drew an

adverse inference against O’Donnell’s credibility due to

his assertion of his fifth amendment right not to testify

in accordance with Rhode v. Milla, 287 Conn. 731, 949

A.2d 1227 (2008).4

On the bases of these factual findings, the habeas

court concluded that the petitioner had failed to demonstrate that Stiles had perjured herself during the criminal trial, and that as a consequence his due process

claim failed.5 The second habeas court denied the petitioner’s second amended petition but granted his petition for certification to appeal the court’s judgment. On

appeal, he claims that the habeas court’s finding that

Stiles did not commit perjury at the criminal trial was

clearly erroneous.6

Pursuant to General Statutes § 53a-156, a person commits perjury when ‘‘in any official proceeding, such

person intentionally, under oath . . . makes a false

statement, swears, affirms or testifies falsely, to a material statement which such person does not believe to

be true.’’ ‘‘The question of whether a witness perjured

[herself] is a factual finding, which we review under

the clearly erroneous standard. . . . When the factual

basis of the court’s decision is attacked, [w]e are called

upon to determine whether the facts set out in the

memorandum of decision are supported by the evidence
or whether, in light of the evidence and the pleadings

in the whole record, those facts are clearly erroneous.

. . . Our function is not to examine the record to see

if the trier of fact could have reached a contrary conclusion. . . . The United States Court of Appeals for the

Second Circuit has made clear that in order to determine whether perjury occurred, the court must weigh

all the evidence of perjury before it, including but not

limited to the recantation . . . . Thus, the court must

go beyond the recantation to review other independent

evidence bearing on whether there was perjury at trial.’’

(Citations omitted; internal quotation marks omitted.)

Walker v. Commissioner of Correction, 103 Conn. App.

485, 498–99, 930 A.2d 65, cert. denied, 284 Conn. 940,

937 A.2d 698 (2007); see also Ortega v. Duncan, 333

F.3d 102, 107–108 (2d Cir. 2003).

‘‘The habeas court is afforded broad discretion in

making its factual findings, and those findings will not

be disturbed unless they are clearly erroneous. . . .

Historical facts constitute a recital of external events

and the credibility of their narrators. . . . Accordingly,

[t]he habeas judge, as the trier of facts, is the sole arbiter

of the credibility of witnesses and the weight given to

their testimony.’’ (Citations omitted; internal quotation

marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012). ‘‘[A] finding

of fact is clearly erroneous when there is no evidence

in the record to support it . . . or when although there

is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.’’ (Internal quotation marks omitted.) Grant v. Commissioner of

Correction, 121 Conn. App. 295, 298–99, 995 A.2d 641,

cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).

The second habeas court noted in its memorandum of

decision that, given Stiles’ various stories, determining

whether she perjured herself during the criminal trial

‘‘poses a true dichotomy.’’ Stiles testified in the criminal

trial as to what she had observed at La Casa Green,

and testified at the habeas trial that she was never

there. Any resolution by the habeas court of this factual

tension results in the conclusion that Stiles presented

perjured testimony; either Stiles lied at the criminal

trial and told the truth at the habeas trial, or she told

the truth at the criminal trial and lied at the habeas

trial. The question before the habeas court was not

whether Stiles lied, but when.

The petitioner initially argues that certain alleged

discrepancies between Stiles’ various testimonies were

not addressed by the second habeas court, which demonstrates that the court did not undertake a sufficiently

probing review of the evidence. The petitioner notes

that our Supreme Court has required us to ‘‘undertake

a more probing factual review when a constitutional

question hangs in the balance.’’ State v. Clark, 297 Conn.
1, 7, 997 A.2d 461 (2010). The petitioner argues that

because the habeas court did not sufficiently analyze

the evidence, we should not provide our customary

deference to the fact finder and instead essentially

review the facts of this case de novo. We decline to

adopt the petitioner’s view.

The petitioner has not convinced us to break with

our customary deference to the finder of fact. Although

our Supreme Court has applied a stricter standard of

review to factual findings when a constitutional issue

turns upon those findings, the court has merely required

that we conduct ‘‘a scrupulous examination of the

record to ascertain whether such a finding is supported

by substantial evidence.’’ (Internal quotation marks

omitted.) State v. Damon, 214 Conn. 146, 154, 570 A.2d

700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed.

2d 40 (1990). Our Supreme Court has further qualified

the examination required by noting that ‘‘[n]otwithstanding our responsibility to examine the record scrupulously, it is well established that we may not

substitute our judgment for that of the [fact finder]

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.’’ (Internal quotation marks omitted.) State

v. DeMarco, 311 Conn. 510, 519–20, 88 A.3d 491 (2014).

Our Supreme Court has never instructed this court to

discard its traditional deference to the habeas court’s

credibility determinations as part of scrupulous review.

In this case, where Stiles’ credibility is the central factual question, we review the habeas court’s factual findings to determine whether they are clearly erroneous

and find support within the record.

Our scrupulous review of the record leads us to conclude that the habeas court’s finding that Stiles did not

perjure herself at the time of the criminal trial was not

clearly erroneous. The habeas court acted well within

its discretion to analyze and credit Stiles’ criminal trial

testimony. The court engaged in a thorough analysis of

Stiles’ demeanor and candor, and provided a detailed

rationale for concluding that her criminal trial testimony was credible. That rationale not only included

Stiles’ demeanor during her testimony, but also the substance of her testimony, which corroborated details

provided by Boyd and Youmans.

Furthermore, we agree with the habeas court’s conclusion that Stiles’ recantation, and by extension, testimony at the first habeas trial, lacked credibility,

particularly due to the tainted source from which it

emerged—O’Donnell. The habeas court’s conclusions

about O’Donnell’s actions—namely, that he provided

gifts and promises of monetary compensation to Stiles
and that he made a bogus tape recording of Youmans—

resulted in the appropriate use of an adverse inference

against him. As the individual solely responsible for

Stiles’ recantation, his suspect credibility undermined

whatever value the recantation had in the context of

her ever changing recitation of events.

The petitioner argues that Stiles’ recantation of her

criminal trial testimony during the first habeas trial

clearly indicates that her criminal trial testimony lacks

credibility. He further argues that Judge Fuger was able

to hear Stiles’ recantation testimony live and in-person,

whereas Judge Sferrazza was only able to observe the

video recording of the criminal trial and the transcripts

of the first habeas trial. As a consequence, the petitioner

argues, we should defer to Judge Fuger’s factual findings in the present case and conclude that the second

habeas court’s findings were clearly erroneous. The

petitioner has presented no authority to support his

argument.

As our Supreme Court noted upon its review of the

first habeas trial, ‘‘[a]ppellate courts never act as finders

of fact. . . . When a witness presents conflicting testimony, a question of credibility arises that must be

assessed by the trier of fact.’’(Citations omitted.) Gould

v. Commissioner of Correction, supra, 301 Conn. 566.

Judge Sferrazza did not base his factual findings purely

on the testimony of Stiles. The second habeas court was

in the position to evaluate all of the evidence provided in

the present case, some of which was not before the

first habeas court, specifically, the testimony regarding

O’Donnell’s alleged inducement of Stiles’ recantation

and her subsequent disavowal of that recantation. We

will not second-guess the fact finder merely because

another fact finder, with different evidence related to

the same events, came to a different conclusion. Such

an act is beyond our purview.

The habeas court characterized Stiles’ memory of

events as ‘‘mercurial and even mercenary.’’ It is clear

from the record that Stiles has repeatedly changed her

story depending upon who was listening and what was

at stake for her. The habeas court is best placed to

weigh Stiles’ contradictory stories and consider the

credibility of herrecantations in the context of the three

trials, especially in light of O’Donnell’s interference.

The court concluded that Stiles’ testimony subsequent

to the criminal trial carried little persuasive weight, and

concluded that certain aspects of Stiles’ criminal trial

testimony were indicative of truthfulness, particularly

that which was consistent with the testimony of Boyd

and Youmans. Merely recanting earlier testimony does

not automatically make such testimony false. The petitioner has not adduced any evidence, beyond that of a

suspect initial recantation that has in turn been disavowed, which would demonstrate that Stiles knowingly

lied during the criminal trial.
In this case, where Stiles changed her story frequently, it is for the trier of fact to determine which

story is credible and the effect to be given the testimony.

Talton v. Warden, 33 Conn. App. 171, 179, 634 A.2d 912

(1993), aff’d, 231 Conn. 274, 648 A.2d 876 (1994). The

habeas court articulated numerous valid reasons to consider Stiles’ criminal trial testimony credible and her

testimony at the first habeas trial false. The petitioner

has failed to show how those reasons are unsupported

by the evidence. We therefore conclude that the petitioner has failed to demonstrate that the habeas court’s

finding that Stiles did not perjure herself at the criminal

trial was clearly erroneous, and as a consequence his

claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

1 At the time of the petitioner’s criminal trial, Stiles was hospitalized. As

a consequence, her testimony was recorded at the hospital, with the judge,

counsel for the parties, a court monitor, the petitioner, and Taylor present.

The hospital testimony included a full cross-examination, and was edited

so that when played for the jury it included no testimony that had been

excluded by way of objection.

2 The petitioner also alleged a claim of ineffective assistance of counsel,

which is not before this court on appeal.

3 This testimony was substantially the same as their testimony at both

the first habeas trial and the criminal trial.

4

‘‘[I]t is settled law in otherjurisdictions that a nonparty’s invocation of the

fifth amendment privilege against self-incrimination [in a civil proceeding] is

admissible evidence so long as it does not unduly prejudice a party to the

case. . . . In making this determination, factors that courts should consider

include: (1) the [n]ature of the [r]elevant [r]elationships . . . [as] invariably

. . . the most significant circumstance, examined . . . from the perspective of a non-party witness’ loyalty to the [petitioner] or [respondent] as the

case may be; (2) the [d]egree of [c]ontrol of the [p]arty [o]ver the [n]on-

[p]arty [w]itness, such as whether the assertion of the privilege may be

viewed as a vicarious admission; (3) the [c]ompatibility of the [i]nterests

of the [p]arty and [n]on-[p]arty [w]itness in the [o]utcome of the [l]itigation

. . . and (4) the [r]ole of the [n]on-[p]arty [w]itness in the [l]itigation, such

as [w]hether the non-party witness was a key figure in the litigation and

played a controlling role in respect to any of its underlying aspects . . . .’’

(Citations omitted; internal quotation marks omitted.) Rhode v. Milla, supra,

287 Conn. 737–39.

5 The habeas court also concluded that the petitioner had not proven his

actual innocence. The petitioner has not raised a claim challenging that

conclusion on appeal.

6 The petitioner also claims that the habeas court applied the wrong legal

test when determining whether the use of perjured testimony constituted

a due process violation. As we conclude that the habeas court’s finding that

Stiles did not commit perjury at the criminal trial was not clearly erroneous,

we need not address this claim.