Gomez v. Commissioner of Correction

G
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           JAMIE R. GOMEZ v. COMMISSIONER
                    OF CORRECTION
                       (SC 20089)
             Robinson, C. J., and Palmer, McDonald, D’Auria,
                   Mullins, Ecker and Vertefeuille, Js.*

                                  Syllabus

The petitioner, who had been convicted of the crimes of murder and conspir-
   acy to commit murder, filed a second petition for a writ of habeas corpus,
   claiming, inter alia, that his first habeas counsel provided ineffective
   assistance by failing to raise the claim that the petitioner’s due process
   rights were violated during his underlying criminal trial. Specifically,
   the petitioner claimed that the prosecutor failed to correct the allegedly
   false testimony of the state’s key witnesses, S and V, that the state had
   not promised them anything in return for their cooperation and that
   they had not received any benefit in exchange for their cooperation. The
   habeas court rendered judgment denying the second petition, concluding
   that there was no due process violation, as the petitioner had failed to
   demonstrate that the trial testimony of S and V regarding their coopera-
   tion agreements with the state was false, the agreements were thor-
   oughly explored on both direct and cross-examination, and at least one
   of the defense attorneys involved in the consolidated criminal trial of
   the petitioner and his codefendants was aware of the cooperation agree-
   ments. On the granting of certification, the petitioner appealed to the
   Appellate Court, which affirmed the habeas court’s judgment. The Appel-
   late Court concluded, inter alia, that the petitioner’s due process rights
   under Napue v. Illinois (

360 U.S. 264

), and Giglio v. United States (

405 U.S. 150

), had not been violated because the agreements had been
   disclosed to defense counsel, and, therefore, the state was not required
   to correct the false testimony of S and V. Thereafter, the petitioner,
   on the granting of certification, appealed to this court. Held that the
   petitioner’s due process rights were violated at his criminal trial when
   the prosecutor failed to correct the materially false testimony of S and
   V about benefits that the state had promised or provided to them in
   return for their cooperation, even though defense counsel had actual
   or constructive notice of the falsity of that testimony, and, accordingly,
   this court reversed the Appellate Court’s judgment and remanded with
   direction to the habeas court to grant the petitioner’s second habeas
   petition, to vacate his convictions, and to order a new trial: whether
   disclosure of a witness’ falsity to defense counsel satisfies a prosecutor’s
   duty under Napue and Giglio to correct a witness’ false testimony is a
   case specific determination to be made in view of certain factors, includ-
   ing whether the prosecutor or the defense elicits the false testimony,
   whether and how the prosecutor adopts and uses the false testimony,
   the importance of the witness and his or her false testimony to the
   state’s case, whether and to what effect defense counsel tries to impeach
   the witness or whether counsel has a clear tactical reason for not doing
   so, and whether the truth ultimately is revealed to the jury; considering
   the relevant factors in light of the record, this court determined that
   defense counsel’s actual or constructive notice of the cooperation agree-
   ments was insufficient to satisfy the prosecutor’s obligations under
   Napue and Giglio, as the prosecutor directly solicited the false testimony
   of S and V, who were the state’s key witnesses, defense counsel
   attempted to elicit the details and results of any cooperation agreements
   on cross-examination but was met with further denials by S and V, and
   the prosecutor not only failed to correct the false testimony during
   closing argument but also affirmatively vouched for the credibility of
   V and invited the jury to decide the case on the basis of V’s credibility;
   moreover, the respondent, the Commissioner of Correction, conceded
   that the violation of the petitioner’s due process rights was material
   because the state’s case against him was not overwhelming without the
   testimony of S and V.
                   (One justice concurring separately)
       Argued October 23, 2019—officially released June 29, 2020**
                     Procedural History

  Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to the Appellate
Court, Lavine, Kahn and Bishop, Js., which affirmed
the judgment of the habeas court, and the petitioner,
on the granting of certification, appealed to this court.
Reversed; judgment directed.
  Andrew P. O’Shea, assigned counsel, for the appel-
lant (petitioner).
  Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Michael L. Regan,
state’s attorney, and Stephen M. Carney and Theresa
Anne Ferryman, senior assistant state’s attorneys, for
the appellee (respondent).
                         Opinion

   VERTEFEUILLE, J. The dispositive question pre-
sented by this certified appeal is whether a criminal
defendant’s federal due process rights1 are violated
when the state knowingly fails to correct the material,
false testimony of a prosecution witness when defense
counsel had actual or constructive notice that the testi-
mony is false. We conclude that, under the circum-
stances of the present case, the fact that defense coun-
sel was aware of the falsity of the testimony of two
cooperating witnesses was not sufficient to protect the
rights of the petitioner, Jamie Gomez, to due process
of the law. Accordingly, we reverse the judgment of the
Appellate Court, which affirmed the judgment of the
habeas court denying the petitioner’s second petition
for a writ of habeas corpus.
                            I
   The facts and procedural history of the case are set
forth in full in the decision of the Appellate Court that
is under review; Gomez v. Commissioner of Correction,

178 Conn. App. 519

, 522–24, 

176 A.3d 559

(2017); and
in the decision of this court resolving the direct appeals
of the petitioner and his codefendants, Anthony Booth
and Daniel Brown (codefendants). State v. Booth, 

250 Conn. 611

, 614–16, 

737 A.2d 404

(1999), cert. denied
sub nom. Brown v. Connecticut, 

529 U.S. 1060

, 

120 S. Ct. 1568

, 

146 L. Ed. 2d 471

(2000). The following summary
provides the necessary context for the present appeal.
   ‘‘In connection with the murder of Darrell Wattley,
the state charged the petitioner and his codefendants
. . . each with [inter alia] one count of murder in viola-
tion of General Statutes § 53a-54a . . . and one count
of conspiracy to commit murder in violation of General
Statutes §§ 53a-48 (a) and 53a-54a.’’ Gomez v. Commis-
sioner of 

Correction, supra

, 

178 Conn. App. 522

. During
the consolidated trial in 1997, John F. Cocheo, who
passed away before the present action was filed, repre-
sented the petitioner, Jeremiah Donovan represented
Brown, and Bruce Sturman represented Booth.

Id., 524.

The state’s key witnesses at trial were two other alleged
coconspirators, Angeline Valentin and James ‘‘Tiny’’
Smith (witnesses).

Id., 523, 529–31.

  Valentin testified to the following at trial. The code-
fendants were members of the 20-Love street gang and
resided in the same New London apartment complex
as did Valentin. On the evening of the murder, Valentin
notified the codefendants and Smith that Wattley, who
had romantic feelings for her, was coming to visit her.
She understood, on the basis of previous conversations,
that the codefendants planned to assault Wattley when
he visited their apartment complex in retaliation for a
prior incident in which Wattley had assaulted Smith. A
short time later, Valentin heard gunshots in the building,
looked out her window, and saw the codefendants and
Smith run quickly out of the building, enter a car owned
by the petitioner’s girlfriend, and drive off with the
petitioner in the driver’s seat. Approximately thirty
minutes later, she went downstairs and saw Wattley
lying on the floor with ‘‘[b]lood draining from his head.’’
Finally, she testified that, later that evening, Booth ‘‘told
[her] what [had] happened. And he told [her] that, if
[she] would have known that they [were] going to kill
[Wattley], [she] would have never helped . . . by tell-
ing [the codefendants and Smith] that he was coming
over.’’ Valentin further testified that Booth admitted
‘‘that they shot him.’’
   In his trial testimony, Smith confirmed both that the
codefendants were affiliated with 20-Love and that Wat-
tley had assaulted him at a party the week before the
murder. Although his account of events differed slightly
from that of Valentin, he confirmed that a ‘‘girl’’ had
alerted the codefendants that Wattley was coming to
visit her and that the codefendants had indicated that
they wanted Smith to fight Wattley when Wattley
arrived.
   Smith further testified as follows. While the men were
waiting for Wattley to arrive, Booth, in reference to a
bag that Brown was holding, asked, ‘‘did [you] wear
gloves when [you] loaded it,’’ to which Brown
responded ‘‘yes.’’ The four men then left the apartment,
several of them having donned gloves, and with Booth
wielding a butcher knife, but Smith remained under the
impression that only a fistfight was planned. The group
then split; Smith accompanied Booth to one side of the
building, and Brown accompanied the petitioner to the
other side. Smith saw Wattley arrive and enter the build-
ing on the side where Brown and the petitioner were
waiting. Smith then heard gunshots and, after running
through the building with Brown, came across Wattley
lying on the ground, covered in blood but still moving
his legs. Smith watched Booth stab Wattley several
times, after which the two men fled, joining Brown and
the petitioner at the petitioner’s car. During the ensuing
car ride, Brown said, ‘‘I robbed that nigger, too,’’ and
threw a knife out of the window. Booth then instructed
the group to invent alibis, which they later did.2
  The jury found the petitioner and his codefendants
guilty of murder and conspiracy to commit murder.

Id., 524.

The trial court, Parker, J., ‘‘sentenced the petitioner
to a term of imprisonment of fifty years on the murder
count and a concurrent sentence of fifteen years on the
conspiracy to commit murder count, for a total effective
sentence of fifty years . . . .’’

Id. This court affirmed

the petitioner’s conviction. State v. 

Booth, supra

, 

250 Conn. 617

.
   In 2000, the petitioner, represented by Robert McKay,
filed his first petition for a writ of habeas corpus. The
habeas court, Rittenband, J., denied the petition.
    In 2013, the petitioner filed a second petition for a
writ of habeas corpus. In his amended petition, which
gives rise to the present appeal, he alleged, among other
things, that his prior habeas counsel had provided inef-
fective assistance insofar as he failed to raise the claim
that the state had violated his right to due process
when the prosecutor failed to correct the allegedly false
testimony of Valentin and Smith at trial. The habeas
court, Oliver, J., denied the petition. With respect to
the petitioner’s due process claim, the court found that
‘‘[t]he petitioner . . . failed to demonstrate that the
underlying trial testimony of Smith and Valentin was
‘false’ . . . as opposed to, for example, [a reflection
of] their uncertainty as to the likely posttrial sentencing
scenario.’’ The court also found that ‘‘[t]he nature and
circumstances of [Smith’s] and Valentin’s ‘agreements’
were thoroughly explored and dissected on both direct
and cross-examination. There is no reasonable proba-
bility that the jury was misled in this regard . . . .’’
Finally, the court found that ‘‘at least one other defense
attorney in the consolidated trial was . . . aware of the
agreement’’ by which the prosecuting authority would
bring the cooperation of Smith and Valentin to the atten-
tion of the sentencing judge posttrial and, therefore,
concluded that the petitioner had failed to demonstrate
that Cocheo was unaware of the existence of that agree-
ment. For these reasons, the court concluded that there
had been no due process violation and, therefore, that
prior counsel had not performed deficiently in failing
to raise the claim.
   The habeas court subsequently granted the petition-
er’s petition for certification to appeal, and the Appel-
late Court affirmed the judgment. Gomez v. Commis-
sioner of 

Correction, supra

, 

178 Conn. App. 522

. The
Appellate Court concluded that, in light of the clear
and undisputed evidence of the agreements, the habeas
court’s finding that ‘‘the state had limited agreements
to bring the cooperation of Valentin and Smith to the
attention of the trial court posttrial . . . was not
clearly erroneous.’’

Id., 535.

The Appellate Court also
concluded, however, that there had been no violation
of the petitioner’s due process rights, as elucidated in
Napue v. Illinois, 

360 U.S. 264

, 

79 S. Ct. 1173

, 

3 L. Ed. 2d

1217 (1959), and Giglio v. United States, 

405 U.S. 150

, 

92 S. Ct. 763

, 

31 L. Ed. 2d 104

(1972), because the
agreements had been disclosed to defense counsel.

Id., 540.

The Appellate Court read this court’s decision in
State v. Ouellette, 

295 Conn. 173

, 186–87, 

989 A.2d 1048

(2010), to mean that Napue and Giglio are concerned
only with the state’s failure to correct false testimony
regarding an undisclosed cooperation agreement. See
Gomez v. Commissioner of 

Correction, supra

, 539–40;
see also Hines v. Commissioner of Correction, 

164 Conn. App. 712

, 726–28, 

138 A.3d 430

(2016). This certi-
fied appeal followed.3
                            II
  On appeal, the petitioner contends that both Smith
and Valentin provided material, false or misleading tes-
timony and that the fact that defense counsel had actual
or constructive notice thereof did not satisfy the duty
of the prosecutor, under Napue and Giglio, to correct
the witnesses’ false testimony. We agree.
                            A
   The following legal principles frame our review of
the petitioner’s claim. ‘‘Whether a prosecutor knowingly
presented false or misleading testimony [in violation
of a defendant’s due process rights] presents a mixed
question of law and fact, with the habeas court’s factual
findings subject to review for clear error and the legal
conclusions that the court drew from those facts subject
to de novo review.’’ Greene v. Commissioner of Correc-
tion, 

330 Conn. 1

, 14, 

190 A.3d 851

(2018), cert. denied
sub nom. Greene v. Semple,           U.S.    , 

139 S. Ct. 1219

, 20

3 L. Ed. 2d

238 (2019).
   ‘‘[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 sub-
stantially mischaracterizes the nature of the induce-
ment, the state is obliged to correct the misconception.
. . . Regardless of the lack of intent to lie on the part
of the witness, Giglio and Napue require the prosecutor
to apprise the court when he or she knows that the
witness is giving testimony that is substantially mis-
leading.’’ (Citations omitted; internal quotation marks
omitted.)

Id., 15.

                            B
   To establish a Napue/Giglio violation, then, the peti-
tioner must demonstrate that the state’s witnesses pro-
vided material, false or substantially misleading testi-
mony that the prosecutor failed to correct. To reiterate,
the petitioner in the present case contends that both
witnesses falsely testified at trial that (1) the state had
not promised them anything in return for their coopera-
tion, and (2) they did not receive any benefit at their
respective bond hearings in exchange for cooperating.4
   With respect to the first contention, the decision of
the Appellate Court sets forth in full the testimony on
which that court concluded that both witnesses falsely
testified that the state had promised them nothing in
exchange for their cooperation, when, in fact, the prose-
cutor, Paul E. Murray, had promised both witnesses
that he would bring their cooperation to the attention
of the sentencing court. See Gomez v. Commissioner
of 

Correction, supra

, 

178 Conn. App. 529

–38 and n.10;

id., 538–39

n.13. We need not revisit either that evidence
or the Appellate Court’s conclusion, however, because
the respondent, the Commissioner of Correction, to his
credit, concedes before this court that both witnesses
provided materially false testimony in this regard.
  With respect to the second contention, we conclude
that the habeas court’s finding that Valentin received
no benefits in exchange for her cooperation was clearly
erroneous.5 At trial, the following exchange took place
during Donovan’s cross-examination of Valentin:
  ‘‘[Donovan]: After you testified against . . . Booth,
you were released from jail, weren’t you?
  ‘‘[Valentin]: Yes, I was.
  ‘‘[Donovan]: Do you think there might be, there just
might be, some connection between [your] testifying
against . . . Booth and your not being in jail anymore?
  ‘‘[Valentin]: No.
  ‘‘[Donovan]: You don’t see any connection at all?
  ‘‘[Valentin]: (Witness nods in the negative.)’’
   The transcript of Valentin’s bond hearing, however,
flatly belies her testimony that there was no connection
between her cooperation and the fact that she made
bail. The hearing began with Murray’s informing the
court of the scope and importance of Valentin’s cooper-
ation: ‘‘We have multiple, sworn statements from her,
Your Honor, and she did testify at length and, we
believe, truthfully at the probable cause hearing for
. . . Booth, and was instrumental in a finding of proba-
ble cause for . . . Booth.’’ In his argument to the court
at the bond hearing, Valentin’s attorney, Bernard W.
Steadman, then repeatedly emphasized the significance
and extent of his client’s cooperation.6 Finally, in mak-
ing his bond recommendation to the court, Murray
stated: ‘‘I did indicate to . . . Steadman, Your Honor,
that I would bring to the court’s attention her coopera-
tion, and I think I’ve done that. . . . I also think she
should be aware that, if she [is permitted to move to
New Jersey and does not remain available], and if the
state has to go and seek her out . . . she will have
forfeited whatever benefits she has gained from her
cooperation to this point. . . . [S]o . . . she would be
in serious trouble should she not cooperate and be
available. Having said that, Your Honor, I’m not sure
whether a promise to appear is the appropriate thing,
but I think certainly a substantial reduction in her bond
is appropriate. . . . I think . . . if I were in your posi-
tion, I would be considering a written promise to
appear. . . . I would not be averse to a written promise
to appear.’’
  Consistent with the state’s suggestion, the court ulti-
mately reduced Valentin’s bond from $100,000 to a writ-
ten promise to appear and allowed her to move from
Connecticut to New Jersey, despite the pending charge
of accessory to assault in the first degree. In explaining
that decision, the court stated: ‘‘[C]onsidering all of the
factors . . . [and] the information relayed by counsel,
particularly taking into consideration the youth and
cooperative aspects of this matter, I’m going to . . .
reduce the bond . . . .’’ In light of the multiple refer-
ences to Valentin’s cooperation in the course of what
was a relatively brief hearing, including Murray’s state-
ment implying that Valentin had gained benefits from
her cooperation, we do not think any reasonable conclu-
sion may be drawn other than that her trial testimony
that there was no possible connection between her
cooperation and her release from jail was false.7
                            C
   As we have discussed, the respondent does not dis-
pute that the witnesses provided material, false testi-
mony that the state failed to correct, at least insofar as
both Valentin and Smith testified that the state had
promised them no benefit in exchange for their coopera-
tion in the petitioner’s case. Nevertheless, the respon-
dent contends that the petitioner’s Napue/Giglio rights
were not violated because, in State v. 

Ouellette, supra

,

295 Conn. 173

, this court indicated that due process
does not require the prosecutor to correct a witness’
false or misleading testimony regarding a cooperation
agreement when the agreement at issue has been dis-
closed to defense counsel. Because the state’s agree-
ments with Smith and Valentin had been disclosed to
Donovan, and because Cocheo had access to the tran-
scripts of both witnesses’ bond hearings, the respon-
dent claims the petitioner, through his counsel, had at
least constructive notice as to the misleading nature of
the witnesses’ testimony.8 The petitioner, relying on
case law from certain federal courts of appeals,
responds, and we agree, that disclosure to defense
counsel does not necessarily satisfy the prosecutor’s
obligations under Napue/Giglio.
                            1
   Before we consider the split of opinion among the
federal courts of appeals on this question, we first
address the respondent’s argument that this court
already resolved the question in Ouellette. In that case,
the defendant, Daniel J. Ouellette, was convicted of
robbery and related crimes, largely on the basis of the
testimony of his alleged coconspirator, Pamela Lev-
esque.

Id., 176–80.

Levesque testified at trial that she
had entered into a plea agreement pursuant to which
the state had agreed to recommend a sentence of twenty
years imprisonment, execution suspended after ten
years, in exchange for her cooperation.

Id., 178–79.

At
Levesque’s sentencing hearing following Ouellette’s
conviction, however, the state’s attorney appeared to
invite the court to impose a more lenient sentence,
which the court did.

Id., 180.

  In his direct appeal, Ouellette claimed that the state’s
departure from the terms of the agreement to which
Levesque had testified suggested that the state had with-
held evidence of a different, more favorable plea agree-
ment with the witness, in violation of his due process
rights.

Id., 181.

In assessing this argument, this court
evaluated Ouellette’s claim through the lens of Brady
v. Maryland, 

373 U.S. 83

, 

83 S. Ct. 1194

, 

10 L. Ed. 2d 215

(1963), in which the United States Supreme Court
held that ‘‘the suppression by the prosecution of evi-
dence 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 prosecution.’’

Id., 87.

We stated that
‘‘[t]he Supreme Court established a framework for the
application of Brady to witness plea agreements in
Napue . . . and Giglio . . . .’’ (Citations omitted.)
State v. 

Ouellette, supra

, 

295 Conn. 185

–86. ‘‘The prereq-
uisite of any claim under the Brady, Napue and Giglio
line of cases,’’ we further suggested, ‘‘is the existence
of an undisclosed agreement or understanding between
the cooperating witness and the state.’’ (Emphasis
added.)

Id., 186.

In other words, we assumed in Ouellette
that both Napue and Giglio fell within the Brady line
of cases and that those cases were principally con-
cerned, as was Brady, with the suppression of evidence
favorable to a criminal defendant. Because there was no
evidence that Levesque had entered into an undisclosed
plea agreement with the state, we upheld Ouellette’s
conviction.

Id., 187–92.

   On further reflection, it is clear that we painted with
an overly broad brush in Ouellette. Napue was decided
four years prior to Brady, and Brady relied on Napue
rather than the other way around. See Brady v. Mary-

land, supra

, 

373 U.S. 87

. Moreover, nowhere in Napue
did the United States Supreme Court address the ques-
tion of whether or not the cooperation agreement at
issue had been disclosed to defense counsel. Rather, the
court’s concern was with the long established principle
that ‘‘a conviction obtained through use of false evi-
dence, known to be such by representatives of the
[s]tate, must fall under the [f]ourteenth [a]mendment
. . . .’’ Napue v. 

Illinois, supra

, 

360 U.S. 269

. The court
articulated the rationale for its holding as follows: ‘‘The
principle that a [s]tate may not knowingly use false
evidence, including false testimony, to obtain a tainted
conviction, [is] implicit in any concept of ordered liberty
. . . .’’

Id. Giglio, by contrast,

was decided subsequent to Brady
and relied on both that case and on Napue. See Giglio
v. United 

States, supra

, 

405 U.S. 151

. As in Napue, the
United States Supreme Court in Giglio appeared to
be concerned primarily with the damage done to due
process when the state obtains a criminal conviction
on the basis of testimony known to be false. See

id., 153

(‘‘deliberate deception of a court and jurors by the
presentation of known false evidence is incompatible
with rudimentary demands of justice’’ (internal quota-
tion marks omitted)). Although it is true that the high
court in Giglio also expressed some concern that the
cooperation agreement at issue had not been disclosed,
the court appeared to be concerned primarily that the
agreement had not been disclosed ‘‘to the jury’’;
(emphasis added) id.; rather than to defense counsel.
See Gaskin v. Commissioner of Correction, 183 Conn.
App. 496, 543–44 and n.30, 

193 A.3d 625

(2018)
(explaining that, although Brady was concerned pri-
marily with disclosure of exculpatory material to defen-
dant, essence of Napue/Giglio violation is lack of disclo-
sure of truth to jury).
   The teaching of these cases, then, is that the state’s
knowing presentation of false testimony regarding the
benefits that have been afforded to a cooperating wit-
ness may implicate two related but distinct rights pro-
tected by the due process clause of the fourteenth
amendment. First, under Brady and its progeny, the
state may not suppress material, exculpatory evidence,
including evidence that tends to undermine the credibil-
ity of the state’s witnesses. Second, under Napue and
its progeny, the state may not knowingly rely on the
presentation of false or substantially misleading evi-
dence to the jury, including evidence regarding the ben-
efits that have been afforded to cooperating witnesses,
to obtain a criminal conviction. To the extent that Ouel-
lette concerned itself solely with the rights secured
under Brady, our analysis in that decision was incom-
plete.9 See, e.g., Marquez v. Commissioner of Correc-
tion, 

330 Conn. 575

, 592–93, 

198 A.3d 562

(2019) (failure
to correct false testimony of cooperating witness is ‘‘an
additional due process violation’’ to failure to disclose
under Brady); see also, e.g., Long v. Pfister, 

874 F.3d 544

, 549 (7th Cir. 2017) (Napue and Brady are ‘‘cous-
in[s]’’ representing distinct manifestations of principle
that prosecutors must expose material weaknesses in
their cases), cert. denied,       U.S.    , 

138 S. Ct. 1593

,

200 L. Ed. 2d 777

(2018); T. Murphy, ‘‘Futility of Exhaus-
tion: Why Brady Claims Should Trump Federal Exhaus-
tion Requirements,’’ 47 U. Mich. J.L. Reform 697, 706
(2014) (unlike Brady, ‘‘[t]he harm associated with a
Napue violation is not limited to a specific defendant,
but instead undermines the credibility of the criminal
justice system as a whole’’); cf. Greene v. Commissioner
of 

Correction, supra

, 

330 Conn. 34

n.1, 39 (D’Auria,
J., concurring) (Ouellette does not necessarily govern
situations in which witness clearly has testified falsely
or committed perjury).
                             2
   We turn, then, to the dispositive question presented
by this appeal, namely, whether due process is offended
if the state knowingly presents the false testimony of
a cooperating witness regarding the details of a cooper-
ation agreement but also discloses the truth regarding
that agreement to defense counsel. It is evident that
disclosure to defense counsel resolves any pure Brady-
type concerns. Because suppression of material evi-
dence is the sine qua non of a Brady violation, disclo-
sure of that evidence necessarily secures a defendant’s
Brady rights. It then falls to the defendant, in consulta-
tion with counsel, to decide what use, if any, to make
of the disclosed evidence.
   It is less obvious, however, that disclosure to coun-
sel—whether direct or constructive—is sufficient to
secure a defendant’s rights under Napue and Giglio.
The fact that a defendant knows that the state is
attempting to secure his conviction on the basis of false
evidence does not necessarily discharge the prosecutor
from his duty to correct the false testimony or immunize
the state from a claim that the defendant’s right to due
process was violated.
   The respondent contends that the overwhelming
weight of federal precedent holds that the prosecutor
can, in fact, discharge his or her responsibility to correct
false testimony under Napue and Giglio simply by pro-
viding defense counsel with the correct information
prior to the end of trial. Our own review of the federal
cases suggests that the jurisprudence is more frag-
mented than the respondent allows.
   The federal courts of appeals that have addressed this
issue appear to break down into five different camps.
At one extreme are those courts that hold that disclo-
sure of the facts of a cooperation agreement to defense
counsel always is sufficient to protect a defendant’s
rights under Napue. If defense counsel opts to impeach
the state’s witness as to the falsehood, the jury is made
aware of the truth; if defense counsel declines to cross
examine the witness regarding the falsehood, that
choice is deemed to be strategic and, therefore, a waiver
of any Napue claim. See, e.g., United States v. Flores-
Rivera, 

787 F.3d 1

, 31–32 (1st Cir. 2015); United States
v. Meinster, 

619 F.2d 1041

, 1045–46 and n.8 (4th Cir.
1980). Other federal courts, while generally taking the
view that disclosure is sufficient to satisfy Napue, make
an exception for cases in which the prosecutor becomes
complicit in the falsehood, such as by adopting or other-
wise affirmatively capitalizing on a witness’ false testi-
mony. See, e.g., United States v. Stein, 

846 F.3d 1135

,
1147–48 (11th Cir.), cert. denied,        U.S.    , 138 S.
Ct. 556, 

199 L. Ed. 2d 436

(2017); United States v. Bar-
ham, 

595 F.2d 231

, 243–44 n.17 (5th Cir. 1979). Still
others make exception for cases in which defense coun-
sel is prevented from effectively impeaching the witness
or when other unusual factors apply. See, e.g., United
States v. Iverson, 

648 F.2d 737

, 738–39 and n.8 (D.C.
Cir. 1981) (Harold, J.) (statement on order denying peti-
tion for rehearing); United States v. Harris, 

498 F.2d 1164

, 1166, 1169–71 (3d Cir.), cert. denied sub nom.
Young v. United States, 

419 U.S. 1069

, 

95 S. Ct. 655

, 

42 L. Ed. 2d 665

(1974).
  At the other end of the spectrum are those courts of
appeals holding that the prosecutor remains under a
continuing duty to correct the false testimony of the
state’s witnesses and that the failure to do so violates
Napue, regardless of whether defense counsel has been
made aware of the falsehood. See, e.g., United States
v. LaPage, 

231 F.3d 488

, 491–92 (9th Cir. 2000) (finding
Napue violation even when prosecutor attempted to
correct false testimony during rebuttal argument);
United States v. Foster, 

874 F.2d 491

, 495 (8th Cir. 1988)
(finding Napue violation, even though defense counsel
was aware of letters containing government’s promises
to witnesses) . Not surprisingly, it is on such authorities
that the petitioner invites us to rely.
   Two other courts, the United States Courts of Appeals
for the Second and Seventh Circuits, have carved out
a middle path between these extremes. See, e.g., Long
v. 

Pfister, supra

, 

874 F.3d 544

; Jenkins v. Artuz, 

294 F.3d 284

(2d Cir. 2002). These courts consider various
factors in assessing whether the state has satisfied its
obligations under Napue merely by disclosing to
defense counsel that a witness for the prosecution has
given material, false testimony. Those factors include
whether it is the prosecution or the defense that elicits
the false testimony, whether and how the prosecutor
adopts and uses the false testimony, the importance of
the witness and his or her false testimony to the state’s
case, whether—and to what effect—defense counsel
tries to impeach the perfidious witness or whether
counsel has a clear tactical reason for not doing so,
and, most important, whether the truth ultimately is
revealed to the jury. See Gaskin v. Commissioner of

Correction, supra

, 

183 Conn. App. 546

–54; see also Long
v. 

Pfister, supra

, 548; Jenkins v. 

Artuz, supra

, 294–95.
    Beyond the fact that we give great weight to the
decisions of the Second Circuit in interpreting the fed-
eral constitution; e.g., State v. Faria, 

254 Conn. 613

,
625 n.12, 

758 A.2d 348

(2000); we are persuaded, for
several reasons, that the more nuanced approach fol-
lowed by the Second and Seventh Circuits is the correct
one. The rule advocated by the respondent, namely,
that disclosure to defense counsel either conclusively
or presumptively satisfies Napue, is simply incompati-
ble on its face with the principles that the United States
Supreme Court articulated in that case. As we have
discussed, in Napue, the high court was principally
concerned not with the harms that flow from the sup-
pression of exculpatory evidence but, rather, with the
more fundamental insult to due process when the state
knowingly attempts to secure the conviction of a crimi-
nal defendant on the basis of falsehoods and fabrica-
tions. The court stated the rule in no uncertain terms:
‘‘[I]t is established that a conviction obtained through
use of false evidence, known to be such by representa-
tives of the [s]tate, must fall under the [f]ourteenth
[a]mendment . . . .’’ (Emphasis added.) Napue v. Illi-

nois, supra

, 

360 U.S. 269

; see also United States v.
Agurs, 

427 U.S. 97

, 103, 

96 S. Ct. 2392

, 

49 L. Ed. 2d 342

(1976) (‘‘the [United States Supreme] Court has
consistently held that 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’’ (footnote omitted)); Long v.

Pfister, supra

, 

874 F.3d 554

–55 (Hamilton, J., dissenting)
(‘‘If mere disclosure of the perjury to the defense were
enough, as it is under Brady . . . the logic of the rule
would allow the prosecution to disclose the perjury and
just stand aside while the defense tries to rebut it. That
is simply not a reasonable reading of Napue . . . .’’).
   To hold otherwise would be to condone, if not
encourage, unethical and unprofessional conduct on
the part of the prosecutor. See, e.g., Jenkins v. 

Artuz, supra

, 

294 F.3d 296

n.2. ‘‘It is well established that [a]
prosecutor is not an ordinary advocate. His [or her]
duty is to see that justice is done and to refrain from
improper methods calculated to produce prejudice and
wrongful decisions by the jury. . . . [B]y reason of his
[or her] office, [a prosecutor] usually exercises great
influence upon jurors. His [or her] conduct and lan-
guage in the trial of cases in which human life or liberty
are at stake should be forceful, but fair, because [a
prosecutor] represents the public interest, which
demands no victim and asks no conviction through the
aid of passion, prejudice, or resentment.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Pouncey, 

241 Conn. 802

, 810–11, 

699 A.2d 901

(1997);
see also United States v. 

LaPage, supra

, 

231 F.3d 492

(‘‘A prosecutor has a special duty commensurate with a
prosecutor’s unique power, to [en]sure that defendants
receive fair trials. It is as much his [or her] duty to
refrain from improper methods calculated to produce
a wrongful conviction as it is to use every legitimate
method to bring about one.’’ (Internal quotation marks
omitted.)); Rules of Professional Conduct 3.8, commen-
tary (‘‘A prosecutor has the responsibility of a minister
of justice and not simply that of an advocate. This
responsibility carries with it specific obligations to see
that the defendant is accorded procedural justice and
that guilt is decided upon the basis of sufficient evi-
dence.’’). These duties are in addition to the duties of
every attorney, as an officer of the court (1) not to offer
material evidence that the attorney knows to be false,
and (2) if a witness called by the attorney offers false
testimony, to disclose that fact to the tribunal if neces-
sary to avoid misleading the trier of fact. Rules of Pro-
fessional Conduct 3.3 (3); Rules of Professional Con-
duct 3.3, commentary.
  We also are in agreement with those courts that have
concluded that merely disclosing to defense counsel
that a state’s witness has misrepresented the terms of
a cooperation agreement is not always sufficient to
discharge a prosecutor’s duties under Napue. That is
true because sharing the truth with defense counsel, in
itself, does nothing to disabuse the jury of any miscon-
ceptions created by the false testimony. See Marquez v.
Commissioner of 

Correction, supra

, 

330 Conn. 604

–605.
   Of course, defense counsel shares an obligation to
ensure that a criminal trial is not tainted by evidence
that falsely incriminates the defendant, and the failure
to attempt to purge that taint may be the basis for an
ineffective assistance of counsel claim. The trial court
also can, and should, take any necessary remedial mea-
sures, such as requiring the parties to clarify the nature
of any cooperation agreement on the record and
instructing the jury accordingly. See

id., 607–608.

    Ultimately, however, it is the prosecutor who is best
positioned to repair the damage that is done to ‘‘the
efficient and fair administration of justice’’;

id., 605;

when a state’s witness provides false testimony. In the
face of silence—or worse, complicity—on the part of
the prosecution and continued dissembling by the
state’s witness, there is no reason to believe that defense
counsel will have any greater success in persuading the
jury that the witness has been promised benefits in
exchange for his or her testimony than, for instance,
that he or she is the true perpetrator. As the United
States Court of Appeals for the Ninth Circuit explained
in LaPage, ‘‘[a]ll perjury pollutes a trial, making it hard
for jurors to see the truth. No lawyer, whether prosecu-
tor or defense counsel, civil or criminal, may knowingly
present lies to a jury and then sit idly by while opposing
counsel struggles to contain this pollution of the trial.
The jury understands defense counsel’s duty of advo-
cacy and frequently listens to defense counsel with
skepticism.’’ (Footnote omitted.) United States v.

LaPage, supra

, 

231 F.3d 492

; see also Gaskin v. Com-
missioner of 

Correction, supra

, 

183 Conn. App. 551

(‘‘any knowledge by the court or defense counsel
through disclosure of a plea agreement can be thwarted
by the prosecutor’s examination of a witness or closing
arguments’’); Jenkins v. 

Artuz, supra

, 

294 F.3d 293

–96
(‘‘tepid concession’’ by witness during cross-examina-
tion was insufficient to cure impact of false testimony
on jury, especially when prosecutor sought to shore up
witness’ credibility); United States v. Sanfilippo, 

564 F.2d 176

, 178 (5th Cir. 1977) (‘‘[t]he defendant gains
nothing . . . by knowing that the [g]overnment’s wit-
ness has a personal interest in testifying unless he is
able to impart that knowledge to the jury’’); A. Poulin,
‘‘Convictions Based on Lies: Defining Due Process Pro-
tection,’’ 116 Penn St. L. Rev. 331, 388 (2011) (‘‘Defense
awareness of the falsity should not necessarily defeat
a due process claim. If the defense was unable to air
the issue for the jury despite awareness of the falsity,
the defendant’s right to due process has been
violated.’’).
  Accordingly, although the burden is one shared by
defense counsel and the trial court, the onus ultimately
is on the prosecutor to not knowingly seek a conviction
on the basis of false testimony and, should a state’s
witness testify falsely, to take such remedial measures
before the jury retires as are necessary to ensure that
it is not deceived. See Sivak v. Hardison, 

658 F.3d 898

, 909 (9th Cir. 2011) (defendant cannot ‘‘waive the
freestanding ethical and constitutional obligation of the
prosecutor as a representative of the government to
protect the integrity of the court and the criminal justice
system’’ (internal quotation marks omitted)). The
record may be corrected by, inter alia, recalling the
cooperating witness and asking leading questions to
draw out the true nature of the plea agreement.10 Mar-
quez v. Commissioner of 

Correction, supra

, 

330 Conn. 607

.
   At the same time, we are not persuaded that we
should adopt the approach followed by the Eighth and
Ninth Circuits, namely, that disclosure to defense coun-
sel, standing alone, is never sufficient to satisfy a prose-
cutor’s Napue obligations. Because we have said that
the preeminent consideration ultimately is whether the
jury has been misled regarding the motivations of a
cooperating witness to falsely implicate a defendant;
see State v. Paradise, 

213 Conn. 388

, 400, 

567 A.2d 1221

(1990), overruled in part on other grounds by State v.
Skakel, 

276 Conn. 633

, 

888 A.2d 985

, cert. denied, 

549 U.S. 1030

, 

127 S. Ct. 578

, 

166 L. Ed. 2d 428

(2006); we
agree with the Second and Seventh Circuits that the
analysis must be case specific in view of the factors
that we have discussed. We do agree with the Eighth
and Ninth Circuits, however, that it will be the unusual
case in which the prosecutor fails to correct material,
misleading testimony regarding the existence of a coop-
eration agreement and a reviewing court can, neverthe-
less, determine with confidence that the jury was not
misled thereby.
                             3
  Our own review of the record; see Napue v. 

Illinois, supra

, 

360 U.S. 271

–72; persuades us that the present
matter does not fall within those exceptional cases in
which disclosure to defense counsel, standing alone, is
sufficient to satisfy a prosecutor’s obligations and to
vindicate a defendant’s rights under Napue. In the pres-
ent case, during his direct examination, Murray directly
solicited false testimony from both witnesses regarding
their cooperation agreements with the state.11 On cross-
examination, the defense team questioned both wit-
nesses at some length on this point in an attempt to
extract admissions that the state had promised or pro-
vided them some consideration in exchange for their
testimony. Both witnesses doubled down on their direct
testimony, responding that they had neither been
offered nor had they received benefits in exchange for
their testimony. Finally, in his closing argument, not
only did Murray not correct the witnesses’ misstate-
ments, but he affirmatively vouched for Valentin’s credi-
bility and invited the jury to decide the case on the basis
thereof. Acknowledging that Valentin had admitted to
lying to the police shortly after the crime, he declared
‘‘[t]hat’s the only lie that’s been shown with respect to
. . . Valentin.’’
   Moreover, regardless of whether the defense team
should have obtained transcripts of the witnesses’ bond
hearings by the time of trial and been fully aware of
the benefits that they had obtained in exchange for
their cooperation, it is undisputed that they did not do
so, and, therefore, that they were unable to effectively
elicit that information and impeach the witnesses’ credi-
bility before the jury. As we have explained, the ultimate
question under Napue is not whether defense counsel or
the trial court did all it could to protect the defendant’s
rights to a fair trial but, rather, whether the prosecutor
knowingly permitted the jury to be misled and the defen-
dant to be convicted on the basis of false testimony.
   In light of the facts that the prosecutor directly solic-
ited the false testimony of the state’s two key witnesses,
that defense counsel tried in good faith to elicit the
details and results of any cooperation agreements but
was met with further denials, and that the prosecutor
closed by vouching for the credibility of one of those
witnesses in his rebuttal argument, we are not per-
suaded that defense counsel’s actual or constructive
knowledge of the truth was sufficient to satisfy Napue.
See Jenkins v. 

Artuz, supra

, 

294 F.3d 296

(discussing
challenges that defense counsel faces ‘‘[w]hen a prose-
cutor throws his or her weight behind a falsely testifying
witness’’). We need not tarry long on the second, materi-
ality, prong of Napue, in light of the respondent’s com-
mendable concession; see Adams v. Commissioner of
Correction, 

309 Conn. 359

, 368 n.13, 

71 A.3d 512

(2013);
that a violation of the petitioner’s due process rights
would be material because the state’s case against the
petitioner was not overwhelming without the testimony
of Smith and Valentin.
   The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the habeas court and to remand
the case to that court with direction to grant the habeas
petition, to vacate the petitioner’s underlying convic-
tions, and to order a new trial.
   In this opinion the other justices concurred.
   * The listing of justices reflects their seniority status on this court as of
the date of oral argument.
   ** June 29, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
   1
     The petitioner has abandoned any argument that the constitution of
Connecticut affords broader protection than does the United States constitu-
tion in this respect. Gomez v. Commissioner of Correction, 

178 Conn. App. 519

, 522 n.1, 

176 A.3d 559

(2017).
   2
     In part II of this opinion, we set forth the facts and procedural history
regarding the trial testimony of Valentin and Smith that the state had made
them no promises, and that they had received no benefits, in return for
their cooperation.
   3
     We granted certification, limited to the following issues: (1) ‘‘Did the
Appellate Court properly reject the petitioner’s claim that his due process
rights were violated because the state knowingly presented false testimony
during his criminal trial?’’ And (2) ‘‘Did the Appellate Court [correctly]
determine that the petitioner’s right to the effective assistance of counsel
was not violated by virtue of his trial counsel’s failure to cross-examine
certain state’s witnesses about consideration that those witnesses had been
promised by the state in return for their testimony?’’ Gomez v. Commissioner
of Correction, 

328 Conn. 916

, 

180 A.3d 962

(2018). In light of the record and
the parties’ arguments, the first issue may be more accurately framed as
follows: Did the Appellate Court properly reject the petitioner’s claim that
his due process rights were violated because the state knowingly failed to
correct false testimony during his criminal trial? See, e.g., State v. A. M.,

324 Conn. 190

, 200, 

152 A.3d 49

(2016) (court may restate certified question).
Because we answer that question in the negative, we need not reach the
second certified issue.
   4
     The parties do not dispute that the prosecutor, Murray—who represented
the state both at the petitioner’s and his codefendants’ consolidated criminal
trial and in connection with the criminal proceedings against Valentin and
Smith—did not correct any of the witnesses’ allegedly false testimony. They
also do not dispute that any representations by the state’s witnesses that
they had received no benefits in exchange for their cooperation with the
state were material to the jury’s assessment of their credibility. See Napue
v. 

Illinois, supra

, 

360 U.S. 269

.
   5
     Although there is reason to believe that Smith also provided false testi-
mony in this regard, the evidence that his testimony regarding his bond
hearing was false or substantially misleading is not sufficiently compelling
for us to conclude that the contrary finding of the habeas court was
clearly erroneous.
   6
     He argued as follows: ‘‘[We have] a young lady who is and has been very
cooperative with the state. . . . [T]his is a young lady who has impressed
me quite a bit as being . . . a person who would cooperate with the court
and with the state in every aspect. . . . I would ask the court to consider,
in light of her cooperation, in light of her intention to cooperate in the
future, to consider releasing her on a promise to appear.’’
   7
     The respondent points to the fact that Murray, having made this record
and all but recommended that the court release Valentin on a written promise
to appear in exchange for her cooperation, later, at the bond hearing,
attempted to blunt the anticipated ‘‘obvious cross-examination effect’’ of
his prior statements by emphasizing that no representations had been made
to Valentin other than that her cooperation would be brought to the attention
of the sentencing court. Neither that fact, nor the court’s ultimate acknowl-
edgement that Valentin’s youth was the main factor on which it relied, alters
our conclusion regarding the veracity of Valentin’s trial testimony.
   8
     Because we conclude that even direct disclosure to defense counsel
does not necessarily cure a Napue/Giglio violation, we need not address
the dispute between the parties as to whether constructive notice to defense
counsel constitutes disclosure for purposes of those cases.
   9
     We recognize that, in several subsequent cases, the United States
Supreme Court has discussed Napue violations under the general moniker
of ‘‘Brady.’’ In those cases, however, that court has continued to distinguish
Napue-type violations, in which the state relies on the presentation of false
evidence to obtain a conviction, from true Brady cases. See, e.g., United
States v. Bagley, 

473 U.S. 667

, 678–81 and n.11, 

105 S. Ct. 3375

, 

87 L. Ed. 2d

481 (1985); United States v. Agurs, 

427 U.S. 97

, 103–107, 

96 S. Ct. 2392

,

49 L. Ed. 2d 342

(1976); see also K. Grunewald, Case Note, ‘‘Bramblett v.
True, No. 02-3, 

2003 WL 58283

, at *1 (4th Cir. Jan. 8, 2003),’’ 15 Cap. Def.
J. 537, 547 (2003) (‘‘Napue and Brady claims are distinctly different and
require separate analysis’’).
   10
      To its credit, following our decision in Marquez, the Division of Criminal
Justice voluntarily adopted a new policy, entitled ‘‘515 Cooperating Wit-
nesses,’’ that is intended to ensure the vindication of defendants’ rights
under Napue and Brady. Of particular relevance to the present appeal, the
policy provides: ‘‘The prosecutorial official trying the case shall ensure
that any testimony that is given by the cooperating witness concerning the
cooperation agreement is true, accurate and not misleading. False, inaccu-
rate or misleading testimony may be corrected with the use of leading
questions, as permitted by the trial court.’’
  11
     The following exchange occurred between Murray and Valentin:
  ‘‘[Murray]: Has anybody promised you anything?
  ‘‘[Valentin]: No.’’
  The following exchange occurred between Murray and Smith:
  ‘‘[Murray]: Do you have any idea what’s going to happen in the criminal
charges against you?
  ‘‘[Smith]: No, I don’t.
  ‘‘[Murray]: Did anybody promise you anything?
  ‘‘[Smith]: No.
                                  ***
  ‘‘[Murray]: Did anybody promise you anything in return for [your]
statement?
  ‘‘[Smith]: No, no.’’

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