Mark Stuart v. Richard Blumenthal, Attorney General et al. (2013)

Ruling on Petition for a New Trial

The petitioner, Mark Stuart, stands convicted of three counts of larceny in the first degree, as well as nine other counts, stemming from his knowing possession of three stolen motor vehicles.   The petitioner now moves for a new trial based on newly discovered evidence and claims of prosecutorial misconduct concerning the testimony of state's witness Alfred Maldonado.   As explained below, the court denies the petition for a new trial.

I

The operative substitute informations charged the petitioner in thirty counts.   At the close of the state's evidence, the state agreed to the dismissal of one count.   On April 7, 2006, the jury convicted the petitioner of the remaining twenty-nine counts as follows:  three counts of larceny in the first degree in violation of General Statutes § 53a–122;  three counts of conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a–48 and 53a–122;  three counts of forgery in the second degree in violation of General Statutes § 53a–139;  nine counts of possessing a vehicle with altered vehicle identification numbers in violation of General Statutes § 14–149;  nine counts of conspiracy to possess a vehicle with altered vehicle identification numbers in violation of General Statutes §§ 53a–48 and 14–149;  and two counts of improper use of a motor vehicle registration in violation of General Statutes § 14–147.  State v. Stuart, 113 Conn.App. 541, 544 n.1, 967 A.2d 532 (2011), cert. denied, 293 Conn. 922, A.2d (2009).  (3/31/06 Transcript (Tr.), p. 71;  4/7/06 Tr., pp. 26–34.)   The court, Cofield, J., imposed a net effective sentence of twenty years suspended after ten years in prison with five years of probation.  (5/18/06 Tr., p. 81.)

On appeal, the Appellate Court ruled that the double jeopardy clause required the vacation of twelve counts;  State v. Stuart, supra, 113 Conn.App. 555–60;  and that there was insufficient evidence on four counts.  Id., 565–69.   The parties agree that, upon resentencing, the petitioner received the same sentence of twenty years suspended after ten, five years probation.   The petitioner, a dentist, has now completed his prison sentence but seeks a new trial primarily to support his effort to reinstate his license to practice dentistry.

The operative amended petition in this case raises two claims:  in count one, that a new trial is required based on newly discovered evidence that state's witness Alfred Maldonado told fellow inmates James Ceperly and Paul Brennan that the petitioner did not know that the cars were stolen;  and in count six, that a new trial is required because the prosecutor failed to correct Maldonado's statement on cross-examination that he would not receive a lighter sentence if he testified against the petitioner.   The petitioner withdrew the remaining counts.

II

The Appellate Court found that the jury could reasonably have found the following facts.  “On December 9, 2004, an airplane patrolling for the state police picked up a LoJack signal emanating from a parking lot in Glastonbury.   LoJack is a motor vehicle transmitting or homing device that can be activated to emit a unique signal if a car is stolen.   It allows law enforcement personnel to locate a stolen vehicle by entering the vehicle's VIN into a tracking computer that is capable of activating and locating its unique signal.   The pilot alerted Glastonbury police and directed them to the parking lot.   The police found the parking lot and identified an Escalade as the vehicle that was broadcasting the signal.   The police also matched the make, model, year and color of the vehicle with information provided by the LoJack system.   The Escalade had a ‘for sale’ sign in the window with a telephone number on it.   The telephone number was identified as belonging to the defendant.   The license plates on the Escalade were registered to a different vehicle, a Chevrolet Lumina owned by Joanne Arena, the defendant's former wife.

“When the police questioned the defendant about the Escalade, he stated that he did not know that it was stolen and that he had purchased it from Ozvaldo Seda the night before.   The defendant then brought to the attention of the police a certificate of title to a Navigator, which he stated he had also purchased from Seda. The Navigator certificate was later found to be fraudulent.   The Escalade certificate of title was found to contain irregularities, including nonmatching VINs, and was also shown to be counterfeit.   After obtaining a search warrant, the police searched the defendant's driveway, which contained approximately six additional vehicles, including a Navigator and a Corvette.   The police found irregularities on several of the Corvette's VINs and the Navigator's VINs, and it was later determined that these VINs had been altered.   The Escalade was also found to have altered VINs. The Corvette, Navigator and Escalade were all seized by the police.

“Inside the defendant's house, the police found a New Jersey certificate of title to the Corvette, which was later confirmed by New Jersey officials to be counterfeit.   There were such a large number of other documents in the house relating to motor vehicles that an investigating officer testified at trial that it appeared as though some sort of an automobile business was being run out of the house.   Among those papers was a note, written by the defendant, with the name ‘Ozzie,’ Seda's nickname, written on it.   The note was dated December 3, 2004, which was approximately three days before the Escalade was stolen, and stated:  ‘$21,500 for Escalade to Ozzie’ and ‘$11,000 to Ozzie for Navigator.’ ¹

“At trial, a witness, Alfred Maldonado, testified that he had met the defendant through Seda. Seda had a car dealership and had purchased several vehicles from Maldonado.   Maldonado testified that he had met with the defendant and Seda in Hartford where the defendant paid $10,000 for the Navigator and $20,000 for the Escalade.   Maldonado testified that during this transaction, he indicated to the defendant that the vehicles were stolen.   On December 14, 2004, Maldonado was arrested for an attempted transfer of another vehicle to Seda. He pleaded guilty to those charges and was sentenced to eighteen months incarceration.”  Id., 545–47.

In addition, the Appellate Court recited the following evidence in support of its conclusion that, with regard to the Corvette, “[t]he jury logically and reasonably could have concluded that the defendant received the vehicle knowing that it was stolen and that its VINs had been altered or tampered with.   Witnesses testified that the defendant was heavily involved in buying and selling automobiles.   Police officers testified that they found hundreds of vehicular documents in the defendant's home.   The dashboard VIN on the Corvette noticeably was altered in that it appeared to be in two separate pieces as though there were a plate over it.   Also, it was cut at an angle and the rivets were damaged with scratches or marks.   It seemed to have been replaced.   The police found a certificate of title and temporary registration papers for the Corvette inside the defendant's house.   A police officer testified that upon initial review of the title, it was apparent that the VIN on the title was at an angle and appeared to have erasures on it.   An officer also testified that the document did not appear to be official.   In a statement made to the police after his arrest, the defendant stated that he usually inspects VINs on the vehicles he purchases to check vehicle history reports.   The defendant's former wife testified that the defendant had been purchasing and selling vehicles for several years.   Therefore, on the basis of the defendant's extensive experience in dealing with automobiles and VINs, the jury could have reasonably inferred that he knew that the Corvette was stolen and that its VINs had been altered.”  Id., 565–66.

The Appellate Court turned next to the Escalade and the Navigator and stated that “there was sufficient evidence from which the jury could have concluded that the defendant possessed the vehicles knowing that they were stolen and that their VINs were altered.   Maldonado testified that the defendant met with Maldonado and Seda in Hartford and paid Maldonado $20,000 for the Escalade and $10,000 for the Navigator.   Maldonado also testified that at this meeting, he indicated to the defendant that both vehicles were stolen.   Shortly after the defendant purchased the Escalade for $20,000, he offered it for sale for $35,000 and advertised it as a 2004 model even though it was really a 2003 model.   When the police questioned the defendant about the Navigator, he gave inconsistent answers and stated that he did not know where it was.   After the Navigator was seen at his house by the police, the defendant admitted that it was in his driveway and stated that he did not know why he had lied about its location.   Regarding the Navigator's VINs, investigating officers testified as to the following facts:  the dashboard VIN was not factory issued, it was crooked, it appeared to be curled and buckled, and it did not lie flat;  the VIN on the doorjamb was not authentic because it did not self-destruct when it was peeled back;  and the VINs on the dashboard and doorjamb did not match other authentic VINs on the vehicle.   Regarding the Escalade's VINs, investigating officers testified as to the following facts:  the VIN on the doorjamb was wrinkled and there was a bubble on the seam where it was applied to the metal of the door, the dashboard VIN had an extra space on the left rivet, and it was apparent that it was not authentic just by looking at it.   On this information, and in consideration of the defendant's extensive experience in dealing with automobiles and VINs, the jury could have reasonably concluded that the defendant knew that the Escalade and Navigator were stolen and that their VINs had been altered.”  Id., 566–67.

III

Under Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987), a court should grant a petition for a new trial when it is satisfied that “the evidence offered in support thereof:  (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence;  (2) would be material to the issues on a new trial;  (3) is not cumulative;  and (4) is likely to produce a different result in the event of a new trial.”   State v. Shabbazz, 259 Conn. 811, 820, 792 A.2d 797 (2002).   The court must consider the newly discovered evidence “in the context of the evidence presented in the original trial.”  Id., 827.

The petitioner's first claim for a new trial rests on newly discovered evidence that Maldonado told James Ceperly and Paul Brennan that the petitioner did not know that the cars were stolen.   The parties have commendably stipulated to many of the relevant facts.   Prior to the petitioner's criminal trial, Maldonado spoke separately in jail or prison to James Ceperly, Paul Brennan, and others who were incarcerated and told them that the petitioner did not know the vehicles in question were stolen and that the petitioner was innocent.   Maldonado also told them that he had received a plea offer, and that he was going to testify falsely in hopes of getting a more lenient sentence.   (Stipulation of Facts (Stip.), paras. 52–55, 68–75.)   After the petitioner's criminal trial, when the petitioner went to prison, the petitioner learned about these statements from Ceperly and Brennan by talking to them in custody.  (Exhibit (Ex.) 6, pp. 21–22;  Stip., paras. 56–64, 76–85.)   Both Ceperly and Brennan have long criminal records.  (Stip., paras.47, 67.)

Based on these facts, the court finds that Maldonado's statements to Ceperly and Brennan constitute newly discovered evidence that could not have been discovered at the time of trial with due diligence.   The issue under the first count instead focuses on the other elements of the Asherman test concerning the materiality and importance of this new evidence.

As Assistant State's Attorney Kathleen Dwyer testified at the hearing on this petition, and as both she and defense counsel argued during the criminal trial, the central issue in the criminal trial was whether the petitioner had knowledge that the cars were stolen or rather was simply an innocent, good faith purchaser of stolen vehicles.  (4/4/06 Tr., pp. 68–72.)   To analyze the first count of the petition, the court must first review Maldonado's testimony on this central issue.   On direct examination, Maldonado's testimony on this topic was actually quite brief.   It consists of the following:

Q [Assistant State's Attorney Dwyer]:  “Did you ever tell Ozzie that these vehicles were stolen?

A [Maldonado] “Yes.

Q “So therefore based on your conversation with Ozzie, Ozzie knew the vehicles were stolen?

A “That's correct.

Q “Okay. Was the defendant ever present during either of these transactions?

A “Yes.

Q “Which transaction was the defendant present for?

A “The first Escalade that was delivered to his Glastonbury office.   The second one and the Navigator.

Q “So he was present for the transaction in 2004 regarding the Cadillac Escalade and the transaction with the Lincoln Navigator?

A “Correct.   The transaction on the Escalade and the Navigator in '04 was conducted at—meet in the south end of Hartford.

Q “With the defendant present and Ozzie present, did you ever indicate that these vehicles were stolen?

A “At one time.”

(3/31/06 Tr., pp. 17–18.)

Cross-examination by defense counsel John Franckling was extensive.   It started by confirming that Maldonado had only met the petitioner on one occasion.  (3/31/06 Tr., p. 26.)   It then became an attack on Maldonado's character and testimony.

Q “Now you're a thief.   Right.

A “Yes.

Q “Okay. You benefit yourself at other people's expense.   Correct?

A “That's correct.

Q “And you've done that quite a bit.   Right?

A “That's correct.”

(3/31/06 Tr., p. 26).

Franckling then went over in detail Maldonado's extensive conviction record.   (3/31/06 Tr., pp. 26–27, 31–32, 36.)   Franckling also impeached Maldonado with claims of prior inconsistent statements or omissions—all regarding the petitioner's lack of knowledge or overall innocence—made when Maldonado spoke to the state police, to the defendant's private investigator, Donald Gates, to Franckling in the presence of Maldonado's attorney, Julian Schlesinger, and to Franckling and Gates together.  (3/31/06 Tr., pp. 29–30, 32–36.) ²  Franckling brought out that Maldonado was facing pending charges and had a plea offer.  (3/31/06 Tr., pp. 30–31, 36–39.) ³  Franckling also had Maldonado acknowledge that he was not being charged as a persistent larceny offender.   (3/31/06 Tr., pp. 37–38.)   The state had no redirect.

During the defense case, the petitioner called Gates, a former Hartford police captain, to testify about Maldonado's prior inconsistent statements concerning the petitioner's innocence and lack of knowledge that the vehicles were stolen, as well as Maldonado's statements about his plea offer.  (4/4/06 Tr., pp. 30–32.)   In closing argument, Franckiing labeled Maldonado a “thief” and a “convicted felon.”  (4/4/06 Tr., p. 63.)   Franckling once again focused on Maldonado's prior statements, ultimately stating that “[t]here's not one inconsistent statement.   There's three sets of inconsistent statements he gave us.”  (4/4/06 Tr., p. 69.)

Against this background, the court cannot find that the newly discovered evidence is “likely to produce a different result in the event of a new trial.”  State v. Shabbazz, supra, 259 Conn. 820.   The state's case, while largely circumstantial, was strong.   The vehicle identification numbers (VINs) and title documents of the three vehicles contained numerous irregularities.   Although Franckling argued that the state relied on experts and that the petitioner, as a lay person, could not appreciate these subtleties (4/4/06 Tr., pp. 61–62), there was substantial evidence that the petitioner had “extensive experience in dealing with automobiles and VINs ․” State v. Stuart, supra, 113 Conn.App. 566.⁴  The petitioner gave inconsistent answers to the police regarding the whereabouts of the Navigator and ultimately admitting lying about it.   The petitioner also wrote a note stating “$21,500 for Escalade to Ozzie” three days before the Escalade was stolen.

It is true that the state labeled Maldonado's testimony as “instrumental” in obtaining convictions (Ex. 4, p. 3.) But, upon close examination, it is more accurate to say that Maldonado's testimony was less than decisive.   First, Maldonado did not testify at all about the Corvette.   Thus, the petitioner's convictions on those counts relating to the Corvette did not depend on Maldonado's testimony.⁵  Second, as detailed above, Maldonado's testimony that the petitioner knew the vehicles were stolen was quite brief.   It consisted essentially of just one answer that, on one occasion, Maldonado stated, with the petitioner present, that the vehicles were stolen.⁶

As discussed, cross-examination of Maldonado was extensive.   Franckling impeached Maldonado with prior convictions, pending charges, accusations of bad character, and evidence of a plea offer.   In addition, Franckling brought out at least three sets of prior inconsistent statements and introduced extrinsic evidence—through the testimony of Gates—to corroborate some of them.   Franckling reminded the jury of these inconsistent statements during summation.

Given this analysis, the newly discovered evidence is not “likely to produce a different result in the event of a new trial.”  State v. Shabbazz, supra, 259 Conn. 820.   The new evidence consists of additional prior inconsistent statements by Maldonado to the effect, primarily, that the petitioner did not know the vehicles were stolen.   These statements are cumulative of the other similar statements that Franckling produced.  Id. Although the petitioner could call Ceperly or Brennan to the stand if Maldonado denied making the statements;  see State v. Butler, 207 Conn. 619, 626, 207 A.2d 619 (1988);  the state could impeach these witnesses with their lengthy criminal records.   Thus, that approach might backfire.   In light of the fact that the state's independent evidence was strong, and that Franckling's thorough impeachment of Maldonado apparently did not create reasonable doubt in the jury's mind, it is simply unlikely that additional, similar prior inconsistent statements would make a difference in the outcome of the case.

Accordingly, the court denies relief on count one.

IV

The petitioner's second claim, raised in count six of the amended petition, is that the prosecutor failed to correct Maldonado's misstatement on cross-examination that he would not receive a lighter sentence if he testified against the petitioner.   The relevant facts begin with the following colloquy with the court prior to Maldonado's testimony:

The Court:  “All right.   And, Attorney Franckling, you know that during cross-examination you are free to question [Maldonado] about whether any promises have been made to him.

Attorney Franckling:  “That's correct.   And there was one issue, my understanding of Mr. Maldonado's offer is that it is—and I'm sure Attorney Dwyer will correct me or Attorney Schlesinger will correct me—that is a cap of ten and a floor of five.   What I would—My only concern is that when I'm questioning him about that, I think it would be inappropriate—and I don't know if she would do this or not—that it came from a judicial pretrial, I assume to cite.

The Court:  “I don't know that.

Attorney Franckling:  But that's the Court's offer, isn't it?   That's not my offer.   And I think that would be inappropriate because that would lend some judicial sanction to his credibility.

Attorney Dwyer:  “The state would agree not to bring up where that offer came from.”  (3/31/06 Tr., p. 5.)

Although it is not clear from this colloquy, the parties in the present case have stipulated that the full plea offer made to Maldonado, through Attorney Schlesinger, was a cap of ten years on his pending charges in the absence of cooperation, or five years if Maldonado cooperated with the state in the case against the petitioner, with the right to argue for less depending on the level of cooperation.  (Stip., para.7.) The parties have also stipulated that all participants were aware of this offer prior to Maldonado's testimony.  (Stip., para.46.)

During the state's direct examination of Maldonado, the state did not ask about Maldonado's plea offer, nor did Maldonado mention it.   On cross-examination, Franckling's inquiry proceeded as follows:

Q “Notwithstanding your criminal history, you have a very beneficial offer from the State of Connecticut to resolve your matters.   Correct?

A “No.

Q “It's not as beneficial as you'd like it to be, is it?

A “No.

Q “But it's much more beneficial than if you had not testified against Mark Stuart.   Correct?

A “No.

Q “Are you telling me that there is not an offer—Withdrawn.   You're telling us that there's not a cap on your offer?   If you don't testify, you get the cap and if you do testify you get the four?

A “I don't understand.   What's a cap?

Q “The most that you're going to get.

A “They just gave me a number.   That's all.   That's so far that I know of.

Q “They gave you two numbers.   Right?

A “Yes.

Q “A high number—

A “And a low number.

Q “—And a lower number.

A “That's correct.

Q “You won't characterize it as a lower number, but it's lower than the cap.   Right?

A “Correct.

Q “But if I testify today, you get the lower number, don't you?

A “No.

Q “What do you get?

A “Probably more time.

* * *

Q “And you had a cap.   In other words, a higher number and a floor of four or five years.   Correct?

A “Um-hmm.

Q “And the five years was for—was if you testified against Mark Stuart?

A “No.”

(3/31/06 Tr., pp. 37–39.)

The state conducted no redirect examination.  (3/31/06 Tr., p. 40.)   At no point during the testimony did the state correct Maldonado's misstatement that he would not receive a lighter sentence if he testified against the petitioner.   In its opening summation, the state did not mention Maldonado or his testimony.   However, during the defense summation, Franckling argued as follows:  “And [Maldonado] said he wasn't sure what his offer was.   But we know if he didn't testify he's got one high number, and if he did testify he's got a lower number.  (4/4/06 Tr., p. 63.)   In its rebuttal summation, the state responded as follows:  “Go back and listen to the testimony again.   It wasn't a high number if he didn't testify, and a low number if he did testify.   He didn't know.   He knew what the range was, what his offer was, but he didn't know what he would get as far as time based on his testimony.   As a matter of fact he testified, I'll probably get more now.   So he testified at his parol [sic] knowing that he would probably get more jail time because he testified about his relationship with that defendant in the stolen motor vehicles in question and the forged documents in question.   He was a conspirator in this case along with Osvaldo Seda, Ozzie and this defendant.”  (4/4/06 Tr., pp. 70–71.)

A

The petitioner's claim that the state failed to correct Maldonado's misstatements is not appropriate for consideration on this petition for a new trial because the petitioner could have raised it both at trial and on direct appeal.   It is well settled that a petition for a new trial “does not furnish a substitute for, or an alternative to, an ordinary appeal but applies only when no other remedy is adequate and when in equity and good conscience relief against a judgment should be granted ․ In considering a petition, trial judges must give first consideration to the proposition that there must be an end to litigation ․” (Internal quotation marks omitted.)  Fitzpatrick v. Hall–Brooke Foundation, Inc., 72 Conn.App. 692, 696, 807 A.2d 480, cert. denied, 262 Conn. 914, 811 A.2d 1291 (2002).

This same test applies, or at least should apply, to claims that could have been raised at trial.   A claim of newly discovered evidence involves evidence that “could not have been discovered previously despite the exercise of due diligence ․” State v. Shabbazz, supra, 259 Conn. 820.   Although the statute governing petitions for a new trial also allows for such petitions “for other reasonable cause;” General Statutes § 52–270;  “the circumstances in which reasonable cause may be found are limited.”  (Internal quotation marks omitted.)  Skakel v. State, 295 Conn. 447, 521, 991 A.2d 414 (2010).⁷  “The basic test of ‘reasonable cause’ is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal.”  (Internal quotation marks omitted.)  Id., 522.   Logically, if the petitioner, with due diligence, could have raised a claim at trial, then he has not been deprived of a fair opportunity to have it heard on appeal.   See also Johnson v. Commissioner, 218 Conn. 403, 409–19, 589 A.2d 1214 (1991) (claim not raised in trial court not available for habeas review absent proof of cause and prejudice);  Salters v. Commissioner of Correction, 141 Conn.App. 81, 87–91, 60 A.3d 1004, cert. denied, 308 Conn. 932 (2013) (same).

Here, during the trial itself, the petitioner could have raised the claim regarding the state's failure to correct Maldonado's testimony.   It is true that the colloquy with the court, quoted above, does not fully recite the plea offer that Maldonado received in that there is no mention of the fact that Maldonado would receive a lighter sentence if he testified for the state.   However, it is also clear, from the stipulation of facts in this case, from the questions asked by Franckling during cross-examination of Maldonado, and from the argument that Franckling made during summation, that Franckling was fully aware of the deal that Maldonado had received.   Further, the case law has existed since the days of Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972), holding that “[i]f 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.”  State v. Ouellette, 295 Conn. 173, 186, 989 A.2d 1048 (2010).   Thus, the petitioner had both the facts and the law necessary to raise the state's failure to act before the trial court.   There is no apparent reason why he did not do so.   The petitioner's ability to bring this matter to the trial court's attention and preserve the issue for the record means that he was not deprived of an opportunity to raise this matter on appeal.⁸

Even if the petitioner did not raise this matter during the criminal trial, he could have advanced it on direct appeal under the rule in State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).   See State v. Ouellette, supra, 295 Conn. 187.   The Golding rule provides for review of unpreserved claims when the record is adequate for review and the claim implicates the defendant's right to due process.   See, e.g., State v. Alston, 141 Conn.App. 719, 723, 62 A.3d 586 (2013).   Here, there is no dispute that, under Napue and Giglio, the claim implicates due process.   The only question is whether the record is adequate for review.   It is true, as discussed, that the colloquy with the court before Maldonado's testimony does not fully recite the plea offer that Maldonado received in that there is no mention that Maldonado would receive a lighter sentence if he testified for the state.   On the other hand, Franckling's questions on cross-examination and particularly his comments during summation, all quoted above, establish for the record the additional components of the plea offer.   Thus, the record is adequate for appellate review of the Napue claim.   Therefore, because the petitioner had the opportunity to raise this claim both at trial and on appeal, he cannot raise the claim on his petition for a new trial.   See Skakel v. State, supra, 295 Conn. 521–22.

B

Alternatively, there is no merit to the petitioner's claim.   The court does not hesitate to say that, by failing to correct Maldonado's inaccurate testimony on cross-examination, the prosecutor here failed to uphold the highest standards of her profession.   That statement, however, only begins rather than ends the analysis.   As our Supreme Court has stated, “[t]he prerequisite of any claim under the Brady [v. Maryland, 373 U.S. 83 (1963) ], Napue, and Giglio line of cases is the existence of an undisclosed agreement or understanding between the cooperating witness and the state.”  (Emphasis added.)  State v. Ouellettte, supra, 295 Conn. 186.   Stated differently, “[t]he government can discharge its responsibility under Napue and Giglio to correct false evidence by providing defense counsel with the correct information at a time when recall of the prevaricating witnesses and further exploration of their testimony is still possible.”   (Internal quotation marks omitted.)  State v. Jordan, 135 Conn.App. 635, 666, 42 A.3d 457, (2011), cert. granted, 305 Conn. 918, 47 A.3d 388 (2013).

Here the agreement with Maldonado was fully disclosed.   Franckling, with obvious knowledge of the full terms of the agreement, in fact asked Maldonado whether he would get a lighter sentence if he testified for the state.   When Maldonado denied this part of the plea agreement, the petitioner was free to call Maldonado's attorney, Julian Schlesinger, to testify about the terms of the agreement or present other extrinsic evidence going to Maldonado's motive to testify.   See State v. Bova, 240 Conn. 210, 219, 690 A.2d 1370 (1997).   Although the petitioner did not present such evidence, Franckling nonetheless argued to the jury that “[Maldonado] said he wasn't sure what his offer was.   But we know if he didn't testify he's got one high number, and if he did testify he's got a lower number.”   Thus, the state's actions or omissions did not interfere with presentation of the full extent of the plea offer to the jury.

In many other ways, the state's failure to act did not “[affect] the judgment of the jury.”  State v. Ouellette, supra, 295 Conn. 186.   First, the state neither elicited nor exacerbated the inaccurate testimony.  State v. Jordan, supra, 135 Conn. 667–68.   The state asked Maldonado no questions about his plea offer on direct examination.   The subject first came up on cross-examination by Franckling.   The state had no questions on redirect examination.   The state did not mention the subject—indeed, it did not rely on Maldonado's testimony at all—during its opening summation.   It was only after Franckling argued that Maldonado has “got a lower number” if he testifies that the state responded by telling the jury that “[i]t wasn't a high number if he didn't testify, and a low number if he did testify.   He didn't know.   He knew what the range was, what his offer was, but he didn't know what he would get as far as time based on his testimony.”   Although the prosecutor should have corrected Maldonado's misstatement at the time he testified so as to eliminate this entire issue, it appears that the prosecutor's rebuttal argument was simply an attempt to correct a misstatement of that testimony during summation by petitioner's counsel.

Further, the court provided a lengthy instruction on accomplice testimony.   See id., 668.   The instructions expressly informed the jurors that “[i]n weighing the testimony of an accomplice who has not yet been sentenced or whose case has not yet been disposed, you should keep in mind that he may, in his own mind, be looking for some favorable treatment in the sentence or disposition of his own case.”   The court also implored the jurors to look with “particular care” at the testimony of an accomplice and “scrutinize it very carefully before you accept it.”  (4/6/06 Tr., pp. 15–16.)   The court next reminded the jury that Maldonado had a criminal record and that there was evidence that he had made prior inconsistent statements.  (4/6/06 Tr., pp. 16–17.)

Finally, as discussed, the state had a strong circumstantial case against the petitioner wholly independent of Maldonado's testimony.   See State v. Jordan, supra, 135 Conn.App. 667.   In actuality, Maldonado's testimony contributed only marginally to the state's case.   Franckling impeached Maldonado thoroughly and yet the jury still convicted.   Under these circumstances, the court cannot say that the state's failure to act in a way that would have impeached Maldonado even further “affected the judgment of the jury.”  State v. Ouellette, supra, 295 Conn. 186.   Accordingly, the court denies the petitioner's claim in count six.

V

The court denies the petition for a new trial.

It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. The state argued in its summation that this note proves that the defendant preordered a stolen car.  (4/4/06 Tr., p. 71.).  FN1. The state argued in its summation that this note proves that the defendant preordered a stolen car.  (4/4/06 Tr., p. 71.)

FN2. Impeachment concerning Maldonado's prior statements to Franckling and Schlesinger went as follows.Q “And you told me in your lawyer's presence that you had never met Mark Stuart.   Right?A “Yes.Q “And you told me that wouldn't know Mark Stuart if he walked into the room.   Right?A “Yes.Q “And you told me that Mark Stuart didn't know that those cars were stolen.   Right?A “No, I don't recall that.”(3/31/06 Tr., pp. 34–35.).  FN2. Impeachment concerning Maldonado's prior statements to Franckling and Schlesinger went as follows.Q “And you told me in your lawyer's presence that you had never met Mark Stuart.   Right?A “Yes.Q “And you told me that wouldn't know Mark Stuart if he walked into the room.   Right?A “Yes.Q “And you told me that Mark Stuart didn't know that those cars were stolen.   Right?A “No, I don't recall that.”(3/31/06 Tr., pp. 34–35.)

FN3. In the next section, the court discusses the details of the inquiry concerning pending charges and plea offers..  FN3. In the next section, the court discusses the details of the inquiry concerning pending charges and plea offers.

FN4. Contrary to the petitioner's argument, the court cannot reexamine the admissibility of the state's evidence about VINs and title documents.   Franckling fairly presented the argument to the jury, made again by the petitioner in this petition, that this evidence was of an expert nature that lay people could not appreciate (4/6/06 Tr., pp. 61–62), but the jury apparently rejected that argument..  FN4. Contrary to the petitioner's argument, the court cannot reexamine the admissibility of the state's evidence about VINs and title documents.   Franckling fairly presented the argument to the jury, made again by the petitioner in this petition, that this evidence was of an expert nature that lay people could not appreciate (4/6/06 Tr., pp. 61–62), but the jury apparently rejected that argument.

FN5. Although the petitioner argued at the hearing that Maldonado's testimony on the other counts “contaminated” the counts concerning the Corvette, there is no evidence to support this argument.   The trial court charged the jury that it would have to reach “twenty-nine separate verdicts.”  (4/6/06 Tr., p. 8.).  FN5. Although the petitioner argued at the hearing that Maldonado's testimony on the other counts “contaminated” the counts concerning the Corvette, there is no evidence to support this argument.   The trial court charged the jury that it would have to reach “twenty-nine separate verdicts.”  (4/6/06 Tr., p. 8.)

FN6. Although the transcript is somewhat unclear, it does appear that, at the jury's request, the court had the testimony of Maldonado played back during deliberations.  (4/7/06 Tr., p. 24.).  FN6. Although the transcript is somewhat unclear, it does appear that, at the jury's request, the court had the testimony of Maldonado played back during deliberations.  (4/7/06 Tr., p. 24.)

FN7. Section 52–270(a) provides:  “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases.   The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”.  FN7. Section 52–270(a) provides:  “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases.   The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”

FN8. The petitioner alleges in count six that the prosecutor's failure to correct Maldonado's testimony violated the code of professional conduct for attorneys.   The petitioner could also have raised this claim at the criminal trial.   It is not clear, however, what benefit the petitioner receives from labeling the prosecutor's omission a violation of the code rather than a violation of due process.   The petitioner supplies no authority for the proposition that a violation of the code can provide relief in a criminal trial or a petition for a new trial, and the analogous authority in the habeas context suggests that it cannot.   See Anderson v. Commissioner of Correction, 127 Conn.App. 538, 551, 15 A.3d 658 (2011), aff'd, 308 Conn. 456, A.3d (2013).   Because the Napue–Giglio line of cases already supplies a framework for analyzing claims of prosecutorial failure to correct testimony of cooperating witnesses, the court treats the claim that the prosecutor violated the code as coextensive with a claim of a due process violation..  FN8. The petitioner alleges in count six that the prosecutor's failure to correct Maldonado's testimony violated the code of professional conduct for attorneys.   The petitioner could also have raised this claim at the criminal trial.   It is not clear, however, what benefit the petitioner receives from labeling the prosecutor's omission a violation of the code rather than a violation of due process.   The petitioner supplies no authority for the proposition that a violation of the code can provide relief in a criminal trial or a petition for a new trial, and the analogous authority in the habeas context suggests that it cannot.   See Anderson v. Commissioner of Correction, 127 Conn.App. 538, 551, 15 A.3d 658 (2011), aff'd, 308 Conn. 456, A.3d (2013).   Because the Napue–Giglio line of cases already supplies a framework for analyzing claims of prosecutorial failure to correct testimony of cooperating witnesses, the court treats the claim that the prosecutor violated the code as coextensive with a claim of a due process violation.

Schuman, Carl J., J.