REDACTED

SUPREME COURT
OF THE
STATE OF CONNECTICUT

S.C. 18973

STATE OF CONNECTICUT

V.

JOSHUA KOMISARJEVSKY

REPLY BRIEF OF THE DEFENDANT–APPELLANT

WITH ATTACHED APPENDIX

ATTORNEYS FOR THE DEFENDANT-APPELLANT:

JOHN HOLDRIDGE ERICA A. BARBER

JURIS NO. 308738 JURIS NO. 436725
ATTORNEY AT LAW FROST BUSSERT, LLC
P.O. BOX 844 129 CHURCH STREET, SUITE 226
ATHENS, GA 30603-0844 NEW HAVEN, CT 06510
TEL. (706) 850-0684 TEL. (203) 495-9790
holdridgejohn@gmail.com FAX (203) 495-9795
eab@frostbussert.com

TO BE ARGUED BY:
JOHN HOLDRIDGE
AND/OR ERICA A. BARBER
 TABLE OF CONTENTS

STATEMENT OF THE ISSUES ............................................................................................iii

TABLE OF AUTHORITIES .................................................................................................. iv

THE STATE'S COUNTERSTATEMENT OF THE FACTS …………………………………….1

ARGUMENT

I. The Trial Court Committed Reversible Errors by Denying the Defendant's:

(1) Motion for Change of Venue; (2) Motions to Sequester Jury; (3) Motion to
Continue Jury Selection; (4) Motion to Strike the Jury Panel and for a Change of
Venue; (5) Motions to Excuse Tainted Jury Panels; and (6) Motion for a New
Trial……………………………………………………………………..………………..... .. 2

This extreme case warranted a presumption of prejudice.……………………………. 2

The carnival atmosphere of the courtroom……………………………………………..12

The presumption of prejudice is nonrebuttable. ……………………………………….18

The state has failed to rebut the presumption of prejudice. …………………………..19

II. The Trial Court's Erroneous Denial of the Defendant's Cause Challenges of Twelve
Prospective Jurors Was Prejudicial……………………………………………………..25

III. The Trial Court Abused its Discretion and Violated the Defendant's Constitutional
Rights by Failing to Grant His Motion to Reopen the Evidence, His Motion for a
Mistrial and/or His Motion for a Continuance............................................................ 26

The defendant was deprived of a fair trial as a result of the delayed disclosure ...... 26
The trial court committed reversible error by denying the defendant's motion to
reopen the evidence. ................................................................................................ 28

The trial court committed reversible error by denying the defendant's motions for a
continuance and for a mistrial. ................................................................................. 32

The state, through its agent DOC, suppressed the letters ....................................... 34

Even if the letters did not satisfy the Brady test, the trial court committed reversible
errors by denying the defendant's motions to reopen the evidence, for a continuance
and for a mistrial...................................................................................................... 36

i
IV. The State Corrupted the Truth-Seeking Function of the Trial Forum by Failing to
Disclose to the Defendant Multiple Police Calls that Would Have Provided
Substantial Support to His Theories of Defense; and the Defendant Was
Prejudiced as a Result ............................................................................................. 36

The inadequate police response calls ..................................................................... 39

The Calls Shedding Important Light on the Defendant's Mental State and
Culpability…………………………………………………………………………………. 45

The C.H.-R. Call ....................................................................................................... 47

The defendant established the authenticity of the C.H.-R. call by a preponderance

of the evidence ......................................................................................................... 47

The court committed reversible error by requiring the defendant to prove the call's
existence by a preponderance of the evidence ........................................................ 48

The state fails to refute the defendant's showing that the trial court erred by
sustaining the state's objection to the defendant's question to W.R. whether the
email "appeared" to him "to be a document that could have been created by a non-
police or like a layperson who was not involved in the response." ......................... 49

V. The State Corrupted the Truth-Seeking Function of the Trial Forum by

Presenting False and/or Highly Misleading Evidence and Argument, and the
Defendant Was Prejudiced as a Result .................................................................... 50

This Court should not revisit its decision to make the evidence a part of the
defendant's record.................................................................................................... 50

The defendant has established more than the necessary factual predicate of false or
substantially misleading testimony ........................................................................... 51

Defense counsel's actual and constructive knowledge of the falsity is irrelevant,

particularly here where the prosecution exacerbated and exploited it……………….54

There is clearly a reasonable possibility that the falsity affected the outcome of the
trial. ........................................................................................................................ 57

VI. Conn. Gen. Stat. § 18-10b Cannot Be Applied to the Defendant ............................. 60

CONCLUSION .................................................................................................................... 60

ii
 STATEMENT OF THE ISSUES

I. Whether the Trial Court Committed Reversible Errors by Denying the

Defendant's: (1) Motion for Change of Venue; (2) Motions to Sequester
Jury; (3) Motion to Continue Jury Selection; (4) Motion to Strike the Jury
Panel and for a Change of Venue; (5) Motions to Excuse Tainted Jury
Panels; and (6) Motion for a New Trial? SEE PAGES 2-24.

II. Whether the Trial Court's Erroneous Denial of the Defendant's Cause
Challenges of Twelve Prospective Jurors Was Prejudicial? SEE PAGES 25-26.

III. Whether the Trial Court Abused its Discretion and Violated the Defendant's
Constitutional Rights by Failing to Grant His Motion to Reopen the Evidence,
His Motion for a Mistrial and/or His Motion for a Continuance?
SEE PAGES 26-36.

IV. Whether the State Corrupted the Truth-Seeking Function of the Trial Forum
by Failing to Disclose to the Defendant Multiple Police Calls that Would Have
Provided Substantial Support to His Theories of Defense; and the Defendant
Was Prejudiced as a Result? SEE PAGES 36-50.

V. Whether the State Corrupted the Truth-Seeking Function of the Trial Forum
by Presenting False and/or Highly Misleading Evidence and Argument, and
the Defendant Was Prejudiced as a Result? SEE PAGES 50-60.

VI. Whether Conn. Gen. Stat. § 18-10b Can Be Applied to the Defendant?
SEE PAGE 60.

iii
 TABLE OF AUTHORITIES

FEDERAL CASES
Barr v. Columbia, 378 U.S. 146 (1964) ................................................................................ 6
Brady v. Maryland, 373 U.S. 83 (1963) ........................................................................ passim
DiSimone v. Phillips, 461 F.3d 181 (2d Cir. 2006) ....................................................... 29, 32
Estes v. Texas, 318 U.S. 532 (1965) ....................................................................... 3, 12, 13
Flippo v. McBride, 393 Fed. Appx 93 (4th Cir. 2010) ......................................................... 52
Frank v. Mangum, 237 U.S. 309 (1915) ............................................................................... 1
Gentile v. State Bar of Nev., 501 U.S. 1030 (1991) ............................................................. 4
Giglio v. United States, 405 U.S. 150 (1972) ..................................................................... 55
Groppi v. Wisconsin, 400 U.S. 505 (1971) ........................................................................... 1
Hayes v. Ayers, 632 F.3d 500 (9th Cir.2011) ..................................................................... 15
Holmes v. South Carolina, 547 U.S. 319 (2006) .......................................................... 32, 36
In re Murchison, 349 U.S. 133 (1955) .................................................................................. 3
In re Tsarnaev, 780 F.3d 14 (1st Cir. 2015) ....................................................................... 24
Irvin v. Dowd, 366 U.S. 725 (1961) .......................................................... 6, 7, 16, 18, 19, 20
Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) .................................................................... 56
Johnson v. Mississippi, 486 U.S. 578 (1988) ....................................................................... 6
Kyles v. Whitley, 514 U.S. 419 (1995) .................................................................... 38, 39, 45
Leka v. Portuondo, 257 F.3d 89 (2d Cir. 2001) .................................................................. 27
Mastrian v. McManus, 554 F.2d 813 (8th 1977) ................................................................. 54
Miller v. Pate, 386 U.S. 1 (1967) ........................................................................................ 52
Mills v. Scully, 826 F.2d 1192 (2d Cir. 1987) ...................................................................... 56
Mu'Min v. Virginia, 500 U.S. 415 (1991) ........................................................................... 2, 4
Murphy v. Florida, 421 U.S. 794 (1975) ....................................................................... passim
Napue v. Illinois, 360 U.S. 264 (1959) ........................................................ 51, 52. 53, 54, 58
Neb. Press Ass'n v. Stuart, 427 U.S. 539, 554 (1976) ....................................................... 18
Patton v. Yount, 467 U.S. 1025 (1984) ........................................................................ 16, 18
Prihoda v. McCaughtry, 910 F.2d 1379 (7th Cir. 1990) ........................................................ 6
Rideau v. Louisiana, 373 U.S. 723 (1963) ................................................ 6, 7, 13, 14, 17, 52

iv
Ross v. Oklahoma, 487 U.S. 81 (1988) ............................................................................. 20
Sheppard v. Maxwell, 384 U.S. 333 (1966) ........................................................ 3, 12, 13, 14
Shih Wei Su v. Filion, 335 F.3d 119 (2d Cir. 2003) ............................................................ 55
Sivak v. Hardison, 658 F.3d 898 (9th Cir. 2011) ................................................................ 58
Skilling v. United States, 561 U.S. 358 (2010) ............................................................ passim
Skipper v. South Carolina, 476 U.S. 1 (1986) .................................................................... 38
Stroble v. California, 343 U.S. 181, 195 (1952) .................................................................... 7
Vaughn v. United States, 93 A.3d 1237 (D.C. 2014) .......................................................... 32
Williamson v. United States, 512 U.S. 594 (1994) .............................................................. 32
United States v. Avellino, 136 F.3d 249 (2d Cir. 1998) ...................................................... 36
United States v. Bartko, 728 F.3d 327, 339 (4th Cir.2013) ................................................ 38
United States v. Bigeleisen, 625 F .2d 203 (8th Cir. 1980) ................................................ 54
United States v. Blom, 242 F.3d 799, 804 (8th Cir. 2001) .................................................. 14
United States v. Campa, 459 F.3d 1121 (11th Cir. 2006) ........................................ 8, 17, 18
United States v. Cannady, 719 F. App'x 237 (4th Cir. 2018) .............................................. 38
United States v. Casellas-Toro, 807 F.3d 380 (1st Cir. 2015) .............................. 4, 9, 16, 17
United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999) .................................................. 37
United States v. Foster, 874 F.2d 491 (8th Cir. 1988) ........................................................ 54
United States v. LePage, 231 F.3d 488 (9th Cir. 2000) ............................................... 54, 55
United States v. Madori, 419 F.3d 159 (2d Cir. 2005) ........................................................ 46
United States v. Mahaffy, 693 F.3d 113 (2d Cir. 2012) .......................................... 38, 39, 46
United States v. Maldonado–Rivera, 922 F.2d 934 (2d Cir. 1990) ....................................... 3
United States v. Martinez-Salazar, 548 U.S. 304 (2000) ................................................... 25
United States v. Mason, 293 F.3d 826 (5th Cir. 2002) ....................................................... 54
United States v. Michael, 17 F.3d 1383 (11th Cir. 1994) ................................................... 52
United States v. Parker, 790 F.3d 550 (4th Cir. 2015) ....................................................... 38
United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007) .................................................. 33
United States v. Sabhnani, 599 F.3d 215 (2d Cir. 2010) ...................................................... 3
United States v. Stadtmauer, 620 F.3d 238 (3th Cir. 2010) ............................................... 52
United States v. Stein, 846 F.3d 1135 (11th Cir. 2017) ...................................................... 56
United States v. Valentine, 820 F.2d 565 (2d 1987) .......................................................... 55

v
United States v. Williams, 81 F.3d 1434 (7th Cir.1996) ..................................................... 38
STATE CASES
Copeland v. State, 457 So.2d 1012 (Fla.1984) .................................................................... 5
Crutcher v. State, 481 S.W.2d 113 (Tex.Crim.App. 1972) ................................................. 55
Fadner v. Commissioner of Revenue Servs., 281 Conn. 719, 917 A.2d 540 (2007)………31
Gaskin v. Commissioner, 183 Conn. App. 496, 193 A.3d 625 (2018) ................................ 56
In re Sakarias, 35 Cal. 4th 140, 106 P.3d 931 (2005) ........................................................ 55
Lamarca v. State, 931 So. 2d 838 (Fla. 2006) ................................................................... 52
Lapointe v. Commissioner, 316 Conn. 225,112 A.3d 1 (2015) ..................................... 33, 46
Luong v. State, 199 So.3d 139 (Ala. 2014),
as modified (May 23, 2014) ............................................................................................ 5, 12
Martin v. Flanagan, 107 Conn. App. 544, 945 A.2d 1024 (2008) ....................................... 29
McClintock v. Rivard, 219 Conn. 417, 593 A.2d 1375 (1991) ............................................ 51
Means v. State, 429 S.W.2d 490 (Tex. Crim. App. 1968) .................................................. 55
State v. Brunette, 501 A.2d 419 (Me.1985) ........................................................................ 55
State v. Bryant, 202 Conn. 676, 523 A.2d 451 (1987) ........................................... 28, 30, 32
State v. Campbell, 328 Conn. 444, 180 A.3d 882 (2018)……………………………25, 26, 60
State v. Carpenter, 275 Conn. 785, 882 A.2d 604 (2005),
cert. denied. 547 U.S. 1025 (2006) .................................................................................... 49
State v. Floyd, 253 Conn. 700, 756 A.2d 799 (2000) ............................................................ 3
State v. Galindo, 774 N.W.2d 190 (Neb. 2009) .................................................................... 5
State v. Guerrera, 331 Conn. 628 (2019) ..................................................................... 35, 36
State v. Harris, 156 N.J. 122, 716 A.2d 458 (1998) ........................................................... 15
State v. Kelly, 256 Conn. 23, 770 A.2d 908 (2001) ............................................................ 14
State v. Komisarjevsky, 302 Conn. 162, 25 A.3d 613 (2011) .............................................. 12
State v. Komisarjevsky, No. CR07241860, 2011 WL 1168532
(Conn. Super. Ct. Feb. 28, 2011) ................................................................................. 5, 7, 9
State v. Michael D., 153 Conn. App. 296, 101 A.3d 298,
cert. denied, 314 Conn. 951 (2014) .................................................................................... 30
State v. Nelson, 173 N.J. 417, 803 A.2d 1 (2002) .............................................................. 15
State v. Ortiz, 280 Conn. 686, 911 A.2d 1055 (2006) .................................................. 27, 46

vi
State v. Peeler, 271 Conn. 338, 857 A.2d 808 (2004),
cert. denied, 546 U.S. 845 (2005) ...................................................................................... 34
State v. Pelletier, 209 Conn. 564, 552 A.2d 805 (1989) ..................................................... 21
State v. Pierre, 277 Conn. 42, 890 A.2d 474 (2006) .......................................................... 28
State v. Piskorski, 177 Conn. 677, 419 A.2d 866 (1979) ....................................... 16, 19, 22
State v. Reynolds, 264 Conn. 1, 836 A.2d 224 (2003)
cert. denied, 541 U.S. 908 (2004) .................................................................................. 3, 14
State v. Rivera, 268 Conn. 351, 844 A.2d 191 (2004) ....................................................... 29
State v. Schiappa, 248 Conn. 132, 728 A.2d 466 (1999).....................................................32
State v. Snelgrove, 288 Conn, 742, 954 A.2d 165 (2008)................................................... 29
State v. Townsend, 211 Conn. 215, 558 A.2d 669 (1989). ................................................... 8
State v. T.R.D., 286 Conn. 191, 942 A.2d 1000 (2008) ................................................. 6, 57
State v. Vitale, 190 Conn. 219, 460 A.2d 961 (1983) ......................................................... 23
State v. Whelan, 200 Conn. 743, 513 A.2d 86 (1986) ........................................................ 34
State v. Yates, 137 N.H. 495, 629 A.2d 807 (1993) ........................................................... 55
Stevenson v. Commissioner, 165 Conn. App. 355, 139 A.3d 718,
cert. denied, 322 Conn. 903 (2016) ................................................................................... 36
STATUTES AND CODE OF EVIDENCE PROVISIONS
General Statutes § 18-10b .................................................................................................. 60
General Statutes § 54–251 ................................................................................................... 6
General Statutes § 54–257 ................................................................................................... 6
Conn. Code Evid. § 4-3....................................................................................................... 37
Conn. Code Evid. § 4-5................................................................................................. 30, 31
Conn. Code Evid. § 8-6................................................................................................. 28, 32
CONSTITUTIONAL PROVISIONS
Article I, § 8, Connecticut Constitution ................................................................................ 36
Article I, § 9, Connecticut Constitution ................................................................................ 36
Amendment V, U.S. Constitution ........................................................................................ 36
Amendment VI, U.S. Constitution ....................................................................................... 36
Amendment XIV, U.S. Constitution ..................................................................................... 36

vii
RULES OF COURT

Practice Book § 67-4............................................................................................................. 6

OTHER AUTHORITIES
How to Create an Anonymous Email, available at https://thebestvpn.com/anonymous-
email/. ................................................................................................................................. 48

List of United States cities by population, Wikipedia, the free encyclopedia, available at
https://en.wikipedia.org/wiki/List_of_United_States_cities_by_population. .......................... 4

viii
 The State's Counterstatement of the Facts

The state's Counterstatement of the Facts is in general a fair recitation of the

evidence as viewed in the light most favorable to the prosecution. See State's Brief

(hereinafter, "SB") at 1-19. However, the state makes a number of important errors that

the defendant must correct.

First, the state incorrectly states that the record does not establish whether the

defendant or Hayes "lit a match setting the house on fire. T.9/22/11 at 36-37." SB at 7.

In fact, the prosecution specifically agreed at the defendant's trial that, given that Hayes

was the last one out of the house, he lit the match. See Tr. 10/11/11 at 11-12.

Similarly, the state omits an important fact when it says that "both Hayes and the

defendant emerged [from the house] and ran to the car." SB at 8, citing Tr. 9/20/11 at

99-100, 136-38; 9/21/11 at 118-19; 9/22/11 at 28. 34, 36-37; 9/26/11 at 187. The record

clearly establishes that the defendant came out of the house first, and Hayes followed.

Tr. 9/21/11 at 26-27 (Vignola testimony).

Second, the state mischaracterizes the record when it states that immediately

upon being captured at the scene the defendant told the police that "there were three

[victims in the house], that the woman may be dead, strangled – pointing to Hayes –

and two girls." SB at 9, citing Tr. 9/22/11 at 129, 9/22/11 at 39-30. In fact, the record is

clear that the defendant immediately told Captain Vignola that there were two girls in the

upstairs front, facing bedrooms, and that they were alive. Tr. 9/21/11 at 15; 9/19/11 at

173-74; 9/20/11 at 143; 9/22/11 at 40; 9/26/11 at 34-35.

Third, the state is incorrect that the record establishes that "intruders covered

WP's head with a towel" when he was in the sunroom. SB at 3-4, citing Tr. 9/20/11 at

35; Tr. 9/21/11 at 161. In fact, on the pages cited by the state, W.P. testified that when

he was in the sunroom "some form of cloth material was placed over my head";

furthermore, the defendant told the police that he put a towel on (not over) W.P.'s head
to "so it would stop the bleeding."

1
 I. The Trial Court Committed Reversible Errors by Denying the
Defendant's: (1) Motion for Change of Venue; (2) Motions to Sequester Jury; (3)
Motion to Continue Jury Selection; (4) Motion to Strike the Jury Panel and for a
Change of Venue; (5) Motions to Excuse Tainted Jury Panels; and (6) Motion for a
New Trial.

In his opening brief, the defendant established that the trial court erred by

denying the defendant's motion for a change of venue because he was entitled to a

presumption of prejudice, because this presumption of prejudice is nonrebuttable, and

because he suffered extreme actual prejudice as a result of the trial court’s denial. DB

at 38-82. See also Groppi v. Wisconsin, 400 U.S. 505, 510 (1971) ("Mr. Justice Holmes
stated no more than a commonplace when, two generations ago, he noted that '(a)ny

judge who has sat with juries knows that, in spite of forms, they are extremely likely to

be impregnated by the environing atmosphere.'"), citing Frank v. Mangum, 237 U.S.

309, 349 (1915) (dissenting opinion). The state utterly fails to refute the defendant's

compelling showing. Indeed, even the state concedes that a change of venue would

have had some "value" in attempting to convene a fair trial for the defendant. SB at 46.

This extreme case warranted a presumption of prejudice: In his opening

brief, the defendant showed that the totality of the circumstances demonstrate that a

presumption of prejudice must be applied, including that: (1) the extraordinary media

saturation both reflected and stoked intense and inflammatory public feelings about the

offense and the defendant; (2) the media coverage contained highly prejudicial or

inaccurate facts; and (3) the coverage compromised the calmness and solemnity of the

proceedings. DB at 38-49. In response, the state makes a number of contentions,

none with any merit.

As an initial matter, the state misconstrues the governing law. The state claims

that in order to establish a presumption of prejudice the defendant must show that "the

publicity was so inflammatory that it [made] a fair trial impossible." (Emphasis

added.) SB at 21. See also id at 19 (the defendant must show that "it would be nearly

2
impossible to select a fair jury. . . .") (Emphasis added). The state then cites Dr.

Penrod's testimony that he "could not say it was impossible [for a fair jury to be selected

in the New Haven Judicial District], just that it was more likely that a fair trial could be

had in Stamford." SB at 23, purporting to cite Tr. 2/23/11(pm) at 28 (miscited in SB as

20-27). In fact, this Court has explained that the defendant must show that "there has

been inherently prejudicial publicity such as to make the possibility of prejudice "highly

likely. . . ." (Emphasis added.) State v. Reynolds, 264 Conn. 1, 222-23 (2003) (cited at

SB at 20.). Similarly, the Supreme Court has held that, "where there is a reasonable

likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should

continue the case until the threat abates, or transfer it to another [venue] not so

permeated with publicity." (Emphasis added.) Sheppard v. Maxwell, 384 U.S. 333, 363

(1966); 352 ("'our system of law has always endeavored to prevent even the probability

of unfairness.'"), quoted with approval In re Murchison, 349 U.S. 133 (1955). See also

Estes v. Texas, 318 U.S. 532, 542-43 (1965) (same); United States v. Sabhnani, 599

F.3d 215 (2d Cir. 2010) ("The defendant must show 'a reasonable likelihood that

prejudicial news prior to trial will prevent a fair trial.'"), citing United States v.

Maldonado–Rivera, 922 F.2d 934, 966-67 (2d Cir. 1990), quoting Sheppard, 384 U.S. at

363 (internal quotation marks omitted)).1 Moreover, Dr. Penrod could not have made
himself clearer that there was far more than a reasonable likelihood that a fair trial could

not be convened in the New Haven J.D. See, e.g., Tr. 2/23/11 at 92-93, A4594-95.

The defendant and the state agree that in Skilling the Court "applied a four-factor

analysis [that governs whether a presumption of prejudice should be applied]: (1) the

size and characteristics of the community in which the crime occurred; (2) whether

media reports . . . contained a 'confession or other blatantly prejudicial information of the

1In support of its standard, the state cites the Skilling decision at pages 377 and
385. Undersigned counsel can locate nothing on those pages supporting the state's
understanding of the law.
3
type readers or viewers could not reasonably be expected to shut from sight'; (3) the

length of time between the criminal conduct and the start of trial; and (4) the nature of

the jury's verdict, i.e., whether the jury acquitted the defendant of any charges." SB at

45, citing Skilling, 561 U.S. at 382-84. See also DB at 46-47.

Regarding the first factor, the state maintains that New Haven's size is

comparable to that of Houston's. SB at 45-46. Given that the total population of the

New Haven J.D. is less than 1/5 of the population of eligible jurors in Houston's, this

contention is baffling. SB at 45-46 (Houston had more than 4.5 million individuals

eligible for jury duty; "New Haven Judicial District has a population of 846,101.").2 See

also United States v. Casellas-Toro, 807 F.3d 380, 386-87 (1st Cir. 2015) (finding

presumption of prejudice even though population of Puerto Rico was more than 3

million).3 Houston is the fourth largest city in the United States; New Haven is the 210th

largest. See https://en.wikipedia.org/wiki/List_of_United_States_cities_by_population

(last visited 1/14/19).

The state also seeks to rely upon the fact that "the coverage here was

statewide," and cites to "the small size of the state and the equally high degree of

familiarity with the case in the three other judicial districts surveyed by Penrod. . . ." SB

at 46-47. The state misreads the record, which establishes that the prejudice to the
defendant in New Haven was significantly greater than in Stamford and Fairfield. See,

e.g., DB at 31-33; id at 32 ("'there are 15 percent of the respondents in New Haven who

are not prepared to say guilty and it's twice that number in Stamford. . . .'"), quoting Dr.

2The state claims that in Gentile v. State Bar of Nev., 501 U.S. 1030, 1044
(1991) (plurality opinion), the Court found that "a jury pool of 600,000 individuals, less
than 846,101 of New Haven, reduced the likelihood of prejudice." SB at 46. Gentile,
however, was a free speech case, not a change of venue case. Additionally, the state
incorrectly compares the size of the jury pool in Gentile with the total population of
New Haven J.D.
3 And see Mu'Min v. Virginia, 500 U.S. 415, 429 (1991) (population exceeding 3
million).
4
Penrod and citing CE C (2/23) (Penrod Report (Tables 32, 23)); "Close to 70% of New

Haven respondents reported that they had followed the Cheshire case very closely or

somewhat closely, whereas the figure was less than 49% for Stamford respondents"),

citing. CE C (2/23/11) (Penrod Report (Table 31)); Tr. 2/23/11 at 88-89; A490-91.).4

Regarding the second Skilling factor, the state cites to cases in which courts

have stated that extensive press coverage does not necessarily mandate a change of

venue. See, e.g., SB at 20-21. Those cases are inapposite. The defendant does not

claim that the amount of press coverage warrants a presumption of prejudice, but rather

that a presumption is warranted because of the coverage's highly inflammatory and

prejudicial content. See DB at 38-39; see also DB at 12-31. And see Murphy v. Florida,

421 U.S. 794, 800, n.4 (1975) ("in the past [we have] distinguished largely factual

publicity from that which is invidious or inflammatory."), citing Beck v. Washington, 369

U.S. 541, 556 (1962).

Although both the trial court and the state concede that "'media reports

concerning the cases in question have unquestionably contained much negative

information about Komisarjevsky'" (SB at 47, quoting State v. Komisarjevsky, 2011 WL

1168532, at *4), the state maintains that "…a good deal of the coverage was about the

crime itself and community reaction." SB at 47. But the state fails to support this
incorrect statement with any citation to the record. 5 As the defendant established

4 In any event, although "[t]he size of the community is one factor when
assessing the merits of a motion for a change of venue, . . . the fact that a case is being
tried in a larger county does not automatically mean that an impartial jury can be
selected in that county." Lam Luong v. State, 199 So.3d 98, 112–13
(Ala.Crim.App.,2013), citing Copeland v. State, 457 So.2d 1012 (Fla.1984) and State v.
Galindo, 774 N.W.2d 190, 227 (Neb. 2009) ("A serious case will tend to draw most of
the public's attention in any size community."), reversed, 199 So.2d 139 (2014).
5 It is nothing less than bizarre, therefore, that the state claims that the
defendant's 19-page narrative of the highly prejudicial pretrial publicity was inadequately
briefed because its citations to the record included, among other citations to the record,
the following footnote: "Unless otherwise indicated, the facts herein are found in
5
in his opening brief, the extraordinary media saturation in this case both reflected and

stoked intense and inflammatory public feelings about the offense and the defendant,

and it contained highly prejudicial and inaccurate facts. DB at 38-39; id. at 23-31.

Like the trial court, the state concedes that, as in Irvin v. Dowd, 366 U.S. 725

(1961) and Rideau v. Louisiana, 373 U.S. 723 (1963), the media reported extensively

exhibits: CE A (2/23/11) (media reports); CE A1 (2/23) (list of media reports); CE B

(2/23) (Dr. Steven Penrod's CV); CE C (2/23) (Penrod's report); CE E (2/23) (proposed
jury questionnaire); CE F (2/23) (pictures of evidence from Steven Hayes' trial); CE G
(2/23) (same); CE A (3/16/11) (Quinnipiac news release); DE A (5/12/11) (Hartford
Courant article); DE A (9/19/11) (police log)." SB at 22. The state claims that neither it
nor this Court can "assess the validity of the defendant's characterization of the media
coverage." Id. The state fails to explain why this is so. Both the state and this Court
are capable of reviewing these exhibits and determining whether they support the facts
set forth in the defendant's narrative.
Notably, the state does not maintain that any statement in the narrative is
without support in the record. The defendant's briefing was more than adequate and
fully in compliance with Practice Book § 67-4 (d): "The statement of facts shall be in
narrative form, shall be supported by appropriate references to the page or pages of the
transcript or to the document upon which the party relies and shall not be unnecessarily
detailed or voluminous." In support of its argument, the state cites State v. T.R.D., 286
Conn. 191, 213, n. 18 (2008). T.R.D. could not be less relevant. There, the defendant
made a claim that §§ 54–251 and 54–257 are unconstitutional but "devoted a mere
three quarters of a page in his brief to this claim, and failed to explicate adequately why
a mens rea element is constitutionally required." Id. Here, the defendant set forth in a
detailed narrative the extremely prejudicial pretrial publicity in this case, and supported
that narrative with citations to numerous exhibits.
If for some reason this Court has qualms about the manner in which the
defendant briefed the statement of facts, it needs to issue a clear and prospective
opinion precisely explaining its requirements. This Court has never ruled that each
sentence of a statement of facts must be mechanically followed by a citation to the
record. Accordingly, any such rule may only be applied prospectively. See, e.g.,
Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir. 1990) (Easterbrook, J.) ("A state
ground is 'adequate' only if the state court acts in a consistent and principled way. A
basis of decision applied infrequently, unexpectedly, or freakishly may be inadequate,
for the lack of notice and consistency may show that the state is discriminating against
the federal rights asserted."), citing Johnson v. Mississippi, 486 U.S. 578, 587-89
(1988), Barr v. Columbia, 378 U.S. 146, 149 (1964).

6
on the defendant's confession. SB at 48. See also State v. Komisarjesky, 2011 WL

1168532, at *4. The state claims that Stroble v. California, 343 U.S. 181, 195 (1952),

held that there was "no due process violation due to inflammatory pretrial publicity,

where, through confession published, it had been found voluntary and admitted at trial."

SB at 48. In fact, the Court's holding in Stroble was that there was no due process

violation because, unlike in this case, there was "no affirmative showing that any

community prejudice ever existed or in any way affected the deliberation of the jury." Id.

at 195. The Court merely mentioned the admission of the confession in passing.

Furthermore, and of course, Stroble predates both Rideau and Irvin, neither of which

limits its holding to unadmitted confessions.

Both the state and the trial court maintain that "Skilling . . . specifically focuses on

publicity concerning 'admissions of guilt' of the type at issue in [Rideau].'" SB at 47,

citing State v. Komisarjevsky, 2011 WL 1168532, at *4, citing 581 U.S. at 382-83. In

fact, in Skilling, the Court focused on the fact that the "news stories about Skilling . . .

contained no confession or other blatantly prejudicial information of the type readers

or viewers could not reasonably be expected to shut from sight." (Emphasis added.) Id.

at 382. Here, as detailed in the defendant's brief, there were numerous pieces of

blatantly prejudicial information in addition to the defendant's confession that were of the
type readers or viewers could not reasonably be expected to shut from sight. See, e.g.,

DB at 39.

The state appears to concede the defendant's point that the media reported

extensively on many highly prejudicial matters that were not admitted at trial. SB at 48;

see also DB at 39. The state claims, however, that the defendant does not "counter the

reliance of the trial court on the defendant's own expert's findings, that the erroneous or

inadmissible matter was not 'particularly salient' in the public mind." SB at 48, citing

State v. Komisarjevsky, 2011 WL 1168532, at *4. Neither the state nor the trial court
cites to any authority requiring the defendant to prove specific pieces of prejudicial

7
information were salient in the public's mind – particularly in a case such as this one in

which he has demonstrated conclusively that a large percentage of the minds in the

venue in which he was tried were extraordinarily biased against him because of pretrial

publicity. See DB at 32 (85% of New Haven respondents believed Komisarjevsky

guilty), citing CE C (2/23) (Penrod Report (Tables 32, 23).

The state contends that "any prejudice from the publicity might have been greater

had the defendant disputed the factual account of the events leading up to his entry into

the house and the fact of the deaths and the assault on WP that occurred there, and

had he discounted the contents of his confession." SB at 48-49. The only authority the

state cites for the proposition that a court considering the issue of presumptive prejudice

is to examine the evidence and the defendant's theory of the case at trial is State v.

Townsend, 211 Conn. 215, 228 (1989). Contrary to the state's intimation, Townsend

did not hold that there was "no inherent prejudice from news accounts of offer to plea"

because the defendant did not deny involvement in the crime (SB at 49); rather, it stated

that such news accounts were "not as inherently prejudicial as in a case in which a

defendant denies any involvement of the crime." (Emphasis added.) 211 Conn. at 228.

Additionally, Townsend was handed down 21 years before Skilling. In Skilling, when

analyzing whether to apply a presumption of prejudice, the Court never mentioned the
defendant's theory of the case or the evidence adduced at trial. Cf. United States v.

Campa, 459 F.3d 1121, 1141 (11th Cir. 2006) ("Prejudice against a defendant cannot

be presumed from pretrial publicity regarding peripheral matters that do not relate

directly to the defendant's guilt for the crime charged.") (Emphasis added).

Moreover, the state has not cited to—nor can undersigned counsel—find a United

8
States Supreme Court case that has analyzed whether presumptive prejudice is shown

based on the defendant’s theory of the case or the evidence adduced at trial. 6

The state seeks to dismiss the fact that numerous seated jurors stated that they

believed the defendant was guilty by claiming that "it is apparent that many meant that

they believed he was one of the intruders." SB at 49. Again, however, the state

provides no citation to the record or legal authority to support this baseless claim.

Moreover, even if true, the allegation would support the defendant's showing of

prejudice in that it demonstrates that his petit jury and alternates believed he had been

a participant in the crimes even before they heard any evidence.7

Regarding the third Skilling factor, the state concedes that the trial court

committed manifest error when, in denying a change of venue, it found that Steven

Hayes was tried in the fall of 2009 when in fact he was tried in the fall of 2010. SB at

50, n. 11, citing State v. Komisarjevsky, 2011 WL 1168532, at *3. The state also

concedes that the Hayes' trial ended less than four months "before the February 23,

2011 hearing on the venue motion and the March 16, 2011 commencement of jury

selection. . . ." SB at 49-50. In an even greater understatement, the state also

concedes that "the media reported on the Hayes trial and verdicts." SB at 50.8 In fact,

6 Additionally, any good trial lawyer will attest that prejudicial allegations widely
circulated in pretrial publicity can strongly influence the defense theory of the case.
7The state further states that "the jurors assured the court and the lawyers that
they could assess the individual responsibilities of the two accused men." SB at 49.
Again, this statement proves nothing but the jurors' preconception that the defendant
was involved.
8 The state attempts to downplay the importance of the onslaught of media
regarding the guilty verdict in Hayes just months before the commencement of jury
selection. SB at 50-51. However, the Hayes jury verdict clearly "invited prejudgment of
[the defendant's] culpability." Skilling, 561 U.S. at 383; see also United States v.
Casellas-Toro, 807 F.3d at 387 ("A jury may be able to disbelieve unfounded opinions of
the media or other people. However, it may have difficulty disbelieving or forgetting the
9
media coverage of the Hayes trial and verdict was beyond extraordinary. DB at 25

("The New Haven Register reported that Hayes' death sentences 'climax[ed] one of the

most notorious and closely-watched criminal cases in Connecticut's history.' Another

media report stated that 'some people have called it the trial of the century here in

Connecticut', and the New York Times quoted Quinnipiac law professor William V.

Dunlap as stating that the Hayes' case "brought 'the most intensive coverage' in

memory of a Connecticut murder trial.").

Furthermore, the state fails to concede or misrepresents a number of undeniable

facts. First, the media onslaught continued after the Hayes' verdicts and through the

defendant's trial. See DB at 25-31, citing CE A (2/23/11) (media reports); CE A1 (2/23)

(list of media reports); CE C (2/23) (Penrod's report); CE F (2/23) (pictures of evidence

from Steven Hayes' trial); CE G (2/23) (same); CE A (3/16/11) (Quinnipiac news

release); DE A (5/12/11) (Hartford Courant article). Second, fourteen of the 18 petit

jurors and alternates and two of the three alternates who were dismissed knew that

Hayes had been convicted. See DB at 50-59; Tr. 3/17/11 at 93; DB at 50-59; Tr.

5/31/11 at 41-42.

Third, although the state claims that "many of the seated jurors indicated that

they had not followed the Hayes case or essentially had stopped paying attention to
news coverage surrounding the case long before they had been summoned for jury

selection," its citations to the record do not support this claim. SB at 50, citing Tr.

3/17/11 at 93-94, 106 (M.N. last read about the case when Hayes was being tried; he

recalled the factual basis of the charges as "the home was, I guess, the term has been

used in the media, the home was invaded, three of the four individuals were raped and

killed, and the fourth individual was beaten, and then the house was put to fire"; he

opinion of another jury, twelve fellow citizens, that a defendant is guilty in an intertwined,
just-concluded case.").

10
knew the defendant's name was Komisarjevsky and that the surviving victim was a

doctor); Tr. 3/21/11 at 209 ("I watch A-Team Nightline News and I'll see them mention it,

you know, here and there, you know, the case being tried or what have you."), Tr.

3/23/11 at 91 (T.M.-T. stated that she had last discussed the case four weeks ago), Tr.

4/19/11 at 136-38 (L.C. does not watch T.V. news and only skims the local paper for

things about Yale, but knew that "there was a murder in Cheshire," that Hayes had been

tried "because I drove past the courthouse every day on my way to work," and that

Hayes had been convicted); Tr. 4/20/11 at 211 (R.F. states that the last time he read or

heard anything about the case was "probably" when Hayes was convicted; prosecutor

acknowledges that R.F. knew "a fair amount about the case"); Tr. 5/4/11 at 91-92,111

(although S.H. stated that he had read the early headlines and "a little bit of the follow

up", he also stated that he had "heard a lot about the case" and "I do know the specifics

of it. . . .").

Regarding the fourth Skilling factor, the state and the defendant concur that "the

defendant's jury did not acquit the defendant of any of the charges." (Emphasis

added.) SB at 50. The state suggests that "this factor is neutral" because "the Hayes

jury had acquitted him of one of the counts against him." Id. Of course, the acquittal in

Hayes' case has nothing to do with the effect of pretrial publicity on the defendant's
venire or the legal significance of the verdict in the defendant's case. The only

relevance of the Hayes' verdict is the massive publicity it engendered. See, e.g., DB at

22. As Dr. Penrod explained, his Hayes survey was "about 20 percent" less prejudicial

than the survey in the defendant's case. See DB at 31. The state also argues that the

defendant "contested only9 whether he killed or intended to kill the occupants of the

house" and "the jury's finding respecting intent would have applied to all of the homicide

9 In fact, the defendant also disputed the arson and the anal rape charges.

11
counts." SB at 51. This argument makes no sense.10 Whether or not the jury's finding

with respect to intent would have applied to all the homicide counts has nothing to do

with whether the jury verdict finding the defendant guilty on all counts, including

intentional murders, supports a presumption of prejudice.11

The carnival atmosphere of the courtroom. Significantly, the state does not

dispute that the courtroom had a carnival atmosphere during the voir dire of the

defendant's trial. Rather, the state attempts to discount the defendant's showing that

the voir dire lacked the calmness and solemnity required of judicial proceedings by

contending that the holdings in Sheppard and Estes apply only to courtroom carnivals

10 In support of its argument, the state cites the words of an Alabama Supreme
Court case. Luong v. State, 199 So.3d 139 (Ala. 2014), as modified (May 23, 2014). In
Luong, a highly publicized case, the court reversed the decision of the Alabama Court of
Criminal Appeals in Lam Luong v. State, 199 So.3d 98 (Ala.Crim.App.2013), which
found the defendant was presumptively prejudiced by the publicity. It is unclear from
the Alabama Supreme court's decision whether the cryptic words relied upon by the
state here made any sense in the context of that case.
Regarding Luong, it should be noted that three members of the court dissented,
"agree[ing] with the Court of Criminal Appeals' analysis of each of the [Skilling] factors."
Id. at 164. The Court of Criminal Appeals correctly analyzed the verdict factor: "Unlike
the jury in Skilling, the jury in this case did not acquit Luong of any charge." 199 So.3d
at 120.
It might also be noted that the state is mistaken that Luong involved the death of
occupants of a house. SB at 51. In fact, the defendant was charged with throwing his
four children off of a bridge.
11 The state argues that the findings in this Court's decision in State v.
Komisarjevsky, 302 Conn. 162, 176, 179 (2011), that "extraordinary circumstances
surround[] the present case," that "[t]here is no doubt that the attention generated by
this case is extraordinary" and that "this case has received intense media coverage . .
.", are "not determinative." SB at 52. Whether or not determinative, in making its
findings, the Court was merely stating the obvious. See also id., 183, 192-194 (Zarella,
J., concurring in part and dissenting in part) ("The record in the present case . . .
establishes that this case has received extraordinary, if not unprecedented, media
attention. . . .").

12
resulting from media activity in the courtroom, not from media publicity that occurred

pretrial and produced a courtroom carnival. SB at 51-52.12

The state's reading of the pertinent cases is unnaturally and unjustifiably

cramped. Both Estes and Sheppard placed strong emphasis on the prejudicial pretrial

publicity in those cases and its effect on the calmness and solemnity of the proceedings

and on the community at large. See, e.g., Estes, 381 U.S. at 534; 536 (plurality) ("The

videotapes of these [pretrial] hearings clearly illustrate that the picture presented was

not one of that judicial serenity and calm to which petitioner was entitled. . . . Pretrial

[publicity] can create a major problem for the defendant in a criminal case. Indeed, it

may be more harmful than publicity during the trial for it may well set the community

opinion as to guilt or innocence. . . . All of this two-day affair was highly publicized and

could only have impressed those present, and also the community at large, with the

notorious character of the petitioner as well as the proceeding.");13 Sheppard, 384 U.S.

12 Notably, Skilling did not appear to argue that the pretrial publicity in his case
affected the calmness and solemnity of the proceedings.
13 See also Estes, 381 U.S. at 538 ("Here, although there was nothing so
dramatic as a home-viewed confession [as in Rideau], there had been a bombardment
of the community with the sights and sounds of a two-day hearing during which the
original jury panel, the petitioner, the lawyers and the judge were highly publicized."); id.
at 545 ("From the moment the trial judge announces that a case will be televised it
becomes a cause celebre. The whole community, including prospective jurors, becomes
interested in all the morbid details surrounding it. . . ."); id. at 551 (televising of trial
"prevented a sober search for the truth”); see also id. at 552, 560-61 (Warren, C.J.,
concurring) ("[D]isorder can convert a trial into a ritual without meaning. . . . As Mr.
Justice Black said, in another context: The very purpose of a court system is to
adjudicate controversies, both criminal and civil, in the calmness and solemnity of the
courtroom according to legal procedures."). id. at 562 (citing to principle that judicial
proceedings need to "be conducted with dignity and integrity so as to shield the trial
process itself from . . . irrelevant external factors, rather than to aggravate them as
here."); id. at 577 (if court allowed televised trials, it "would no longer be able to point to
the dignity and calmness of the courtroom as a protection from outside influences. . . .");
id. at 587, 596 (Harlan, J., concurring) ("I can only conclude that televised trials, at least
in cases like this one, possess such capabilities for interfering with the even course of
the judicial process that they are constitutionally banned.").
13
at 333-342; 350-51 (pretrial publicity "must not be allowed to divert the trial from the

'very purpose of a court system * * * to adjudicate controversies, both criminal and civil,

in the calmness and solemnity of the courtroom according to legal procedures. . . . [I]t is

not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge

a wave of public passion.") (citations and internal quotation marks omitted); id. at 353-

56 ("we believe that the arrangements made by the judge with the news media caused

Sheppard to be deprived of that 'judicial serenity and calm to which (he) was entitled.'")

(citation omitted); id. at 363 ("Since the state trial judge did not fulfill his duty to protect

Sheppard from the inherently prejudicial publicity which saturated the community and to

control disruptive influences in the courtroom, we must reverse the denial of the habeas

petition."); id. at 351.

Murphy v. Florida is instructive. There, the Court explained that "in Rideau,

Estes, and Sheppard . . . the influence of the news media, either in the community at

large or in the courtroom itself, pervaded the proceedings. . . . The proceedings in

these cases were entirely lacking in the solemnity and sobriety to which a defendant is

entitled in a system that subscribes to any notion of fairness and rejects the verdict of

the mob." 421 U.S. at 798-99. The Court further explained that indicia of impartiality

among seated jurors "might be disregarded in a case where the community or

courtroom is sufficiently inflammatory. . . ." Id. at 782.

As this Court has held, a presumption of prejudice must be applied when the

pretrial "publicity was so inflammatory or inaccurate that it created a trial atmosphere

utterly corrupted by press coverage." Reynolds, 264 Conn. at 223, citing Murphy, 421

U.S. at 798. See also State v. Kelly, 256 Conn. 23, 34 (2001) ("There is nothing in the

record of this case to suggest that the trial atmosphere was utterly corrupted by media

coverage."). See also Dobbert v. Florida, 432 U.S. 282, 303 (1977) (petitioner must

demonstrate that the trial atmosphere was "utterly corrupted by press coverage.");
United States v. Blom, 242 F.3d 799, 804 (8th Cir. 2001) ("Although the media coverage

14
was extensive, it was not so inflammatory or accusatory as to presumptively create 'a

trial atmosphere that had been utterly corrupted by press coverage.' Murphy, 421 U.S.

at 798."); Hayes v. Ayers, 632 F.3d 500, 511 (9th Cir.2011) ("We may give 'little weight'

to a prospective juror's assurances of impartiality 'where the general atmosphere in the

community or courtroom is sufficiently inflammatory.'") (emphasis added; citations

omitted); State v. Nelson, 803 A.2d 1, 35–36 (N.J. 2002) ("'Presumptively prejudicial

publicity' means a 'torrent of publicity that creates a carnival-like setting.'"), quoting

State v. Harris, 716 A.2d 458 (N.J. 1998).

In short, the distinction the state makes is one without a difference. The correct

focus is not how the media created the carnival atmosphere, but rather whether the

calmness and solemnity of the proceedings were compromised. Here, the answer is

clear: they were. See DB at 40-46.

In its brief, the state also insists that the sole issue is the impact of the carnival

atmosphere on the petit jury. SB at 52. In support, the state cites the Skilling majority's

criticism of the dissent's analysis of the responses of venire persons who were not

selected. SB at 52. However, the majority's criticism focused on the dissent's reliance

on the responses of all venire persons when analyzing whether Skilling suffered actual

prejudice, not whether he was entitled to a presumption of prejudice. 561 U.S. at 389-
390 & n. 24.14 The state's confusion in this regard leads it to adopt the position of

Justice Alito's opinion in Skilling, which rejected the Court's "presumption of

prejudice/actual prejudice" framework and insisted that the sole question is whether "a

14 In Skilling, the majority indicated that there was no need to consider the voir
dire of venire members not seated when considering whether the defendant suffered
actual prejudice. Skilling, 561 U.S. at 389-390, n. 24. The Court did not, however,
overrule the holding in Murphy that "[i]n a community where most veniremen will admit
to a disqualifying prejudice, the reliability of the others' protestations may be drawn into
question; for it is then more probable that they are part of a community deeply hostile to
the accused, and more likely that they may unwittingly have been influenced by it."
Murphy, 421 U.S. at 803. See also DB at 61, n. 49.
15
biased juror is actually seated at trial." 561 U.S. at 424 (Alito, J., concurring in part and

concurring in the judgment). No other member of the Court joined him in this radical

departure from settled precedent.

In Beck v. Washington, 369 U.S. 541, cited by the state (SB at 53, n.14), the

Court explicitly stated: "We cannot say . . . the examination of the entire panel

revealed such prejudice that a court could not believe the answers of the jurors and

would be compelled to find bias or preformed opinion as a matter of law." (Emphasis

added.) 369 U.S. at 557. As in Beck, both this Court and other courts have consistently

considered the voir dire of all prospective jurors, not just seated jurors, in assessing

whether the defendant is entitled to a presumption of prejudice because the entire voir

dire is relevant both to an assessment of the effect of the pretrial publicity on the

community and to the question of whether the trial court should believe the professions

of impartiality by petit jurors and alternates. See, e.g., State v. Piskorski, 177 Conn.

677, 690 (1979) ("the length to which the trial court must go in order to select jurors who

appear to be impartial is a relevant factor in evaluating those jurors' assurances of

impartiality. . . ."); Irvin, 366 U.S. at 727-28 (new trial ordered; 90% of those examined

on the point were inclined to believe in the accused's guilt, and the court excused for

this cause 268 of the 430 veniremen; eight of the 12 who served as jurors thought the
defendant guilty, but said they could nevertheless render an impartial verdict); Murphy,

421 U.S. at 803 ("[i]n a community where most veniremen will admit to a disqualifying

prejudice, the reliability of the others' protestations may be drawn into question; for it is

then more probable that they are part of a community deeply hostile to the accused, and

more likely that they may unwittingly have been influenced by it."); Patton v. Yount, 467

U.S. 1025, 1033-34 (1984) ("The voir dire testimony revealed that this lapse of time had

a profound effect on the community . . . in softening or effacing opinion"); id. at 2894,

2895-96 (Stevens, J., dissenting) (analyzing "the attitude that pervaded the entire
venire"); United States v. Casellas-Toro, 807 F.3d at 388-89 ("voir dire revealed the

16
depth of community knowledge of, and hostility to, Casellas"), citing United States v.

Misla-Aldarondo, 478 F.3d 52, 58-59 (1st Cir. 2007) ("A court may judge the partiality of

the community by looking to the 'length to which the trial court must go in order to select

jurors who appear to be impartial.'"), quoting Murphy, 421 U.S. at 802–03; United States

v. Misla-Aldarondo, 478 F.3d at 59 ("'when a large percentage of the venire is

disqualified, this evidence of prejudice in the community may lead a court to 'properly

question the remaining jurors' avowals of impartiality.'") (citations omitted). See also

United States v. Campa, 459 F.3d at 1145, 1147 (no presumption of prejudice; "the

record reflects that not a single juror who deliberated on this case indicated that he or

she was in any way influenced by news coverage of the case. Nor does the record

reflect that any one of them had formed an opinion about the guilt or innocence of the

defendants before the trial began. In fact, most of the venire revealed that they were

either entirely unaware of the case, or had only a vague recollection of it. . . . The voir

dire in this case was a model voir dire for a high profile case. . . . [The judge's]

questioning revealed that most of the prospective jurors, and all of the empaneled

jurors, had been exposed to little or no media coverage of the case.") (emphasis added)

(Campa is cited repeatedly by the state. See SB at 46, 53-55.).

Here, the trial court dismissed over two hundred prospective jurors because they
admitted that they believed the defendant was guilty and/or deserved death and that

they could not be fair. See DB at 59-61. The defense exercised the vast majority of its

40 peremptory challenges on venire members who evinced clear bias against him. See

DB at 61-75. Even the state used two of its peremptory challenges on jurors because of

their bias against the defendant. See DB at 75. Of the 18 jurors, six had clear

preconceived notions that the defendant was guilty, virtually all had substantial

knowledge of the case, and many had been told by spouses, parents, other family

members, other prospective jurors, friends, co-workers and/or others in the New Haven
community that the defendant was guilty and/or should be sentenced to death. See DB

17
at 50-59. Thus, some 85% of the venirepersons in this case had a substantial level of

bias against the defendant. Thus, this case is comparable to Irvin, where 90% of those

examined on the point were inclined to believe in the accused's guilt, and the trial court

excused for cause 62% of the venire. 366 U.S. at 727. This case is nothing like

Murphy, where only about 25% of the venirepersons were excused because they

indicated an opinion as to petitioner's guilt. Murphy, 421 U.S. at 803. The defendant is

entitled to a presumption of prejudice.

The presumption of prejudice is nonrebuttable. The state claims the

presumption of prejudice is rebuttable. See SB at 53-55. As explained in the

defendant's brief, a majority of the Supreme Court declined to address this issue in

Skilling. See DB at 49, 46. In making its claim, the state relies upon United States v.

Campa, 459 F.3d 1121, which was decided before Skilling. SB at 54. In noting that the

state can attempt to rebut a presumption of prejudice, the court in Campa provided no

analysis of relevant Supreme Court precedent, merely citing to a prior Fifth Circuit case

which cited, inter alia, Neb. Press Ass'n v. Stuart, 427 U.S. 539, 554 (1976), a media

prior restraint case. See 459 F.3d at 1143. Neither the cited page nor any other page

of Stuart addresses whether the presumption of prejudice is rebuttable.

In fact, United States Supreme Court precedent instructs that the presumption of
prejudice is nonrebuttable. See Rideau, 373 U.S. at 727 (finding prejudice "without

pausing to examine a particularized transcript of the voir dire"); Murphy, 421 U.S. at

798-99 (inherent prejudice is "so prejudicial as to create a conclusive presumption of

prejudice.") (Emphasis added).15

15 Patton v. Yount, 467 U.S. at 2891, is not to the contrary. There, the Court held
that the defendant was not entitled to a presumption of prejudice because of the long
passage of time between the petitioner's first and second trial.

18
 The reason that the presumption must be nonrebuttable is that: (1) the state can

rebut it only by attempting to demonstrate the petit jurors' impartiality; and (2) the

presumption mandates that petit jurors' avowals of impartiality cannot safely be credited.

See, e.g., Murphy, 421 U.S. at 802-803 ("The length to which the trial court must go in

order to select jurors who appear to be impartial is another factor relevant in evaluating

those jurors' assurances of impartiality. In a community where most veniremen will

admit to a disqualifying prejudice, the reliability of the others' protestations may be

drawn into question; for it is then more probable that they are part of a community

deeply hostile to the accused, and more likely that they may unwittingly have been

influenced by it."); Irvin v. Dowd, 366 U.S. 725 ("No doubt each juror was sincere when

he said that he would be fair and impartial to petitioner, but psychological impact

requiring such a declaration before one's fellows is often its father. Where so many, so

many times, admitted prejudice, such a statement of impartiality can be given little

weight."); State v. Piskorski, 177 Conn. at 690 ("the length to which the trial court must

go in order to select jurors who appear to be impartial is a relevant factor in evaluating

those jurors' assurances of impartiality. . . ."); United States v. Misla-Aldarondo, 478

F.3d at 59 ("when a large percentage of the venire is disqualified, this evidence of

prejudice in the community may lead a court to 'properly question the remaining jurors'
avowals of impartiality."), citing, inter alia, Murphy, 421 U.S. at 802–03. The

presumption is nonrebuttable.

The state has failed to rebut the presumption of prejudice. As the state

acknowledges, even if the presumption of prejudice could be rebutted, the state would

have the burden of proof to overcome it. SB at 54. The state has failed to rebut both

the presumption of prejudice and the defendant's affirmative demonstration of actual

prejudice. As the defendant explained in his opening brief, Skilling instructs that actual

prejudice is determined by examining: (1) the voir dire proceedings; (2) the emotional
nature of the case and the prejudicial effect of the media coverage; (3) the jury's verdict;

19
and (4) the adequacy of the trial court's jury selection procedures in detecting and

defusing jury bias. Skilling, 561 U.S. at 385-399; DB at 50. The defendant showed that

each of these factors supported a finding of actual prejudice. DB at 50-82. The state

does not refute this demonstration.

The state does not even address the defendant's showing with regard to the

emotional nature of the case and the prejudicial effect of the media coverage, including

his explanation as to why this case is comparable to Irvin and nothing like Skilling. DB

at 79-80. With regard to the jury verdict, the state inexplicably claims, again, that the

verdict finding the defendant guilty on every count is somehow "neutral." SB at 58. For

the reasons stated above and incorporated herein, the state is wrong.

With respect to the voir dire proceedings, the state again insists that the Court's

analysis of the voir dire must be limited to the "first twelve jurors selected," and not the

alternates, because only they "participated in the verdicts." SB at 28-40, citing Ross v.

Oklahoma, 487 U.S. 81, 86 (1988); SB at 38, 40, 56 ("The defendant has failed to

establish actual bias on the part of any of the jurors who decided his guilt and

punishment."); 64.16 Notably, however, the state does not dispute any of the

defendant's factual assertions regarding the twelve petit jurors. See DB at 50-59.

Additionally, the state's understanding of the law is in direct contravention of the

decisions of this Court and the United States Supreme Court, which, when assessing

actual prejudice, have analyzed the voir dire of both petit jurors and alternates. See,

e.g., Skilling, 561 U.S. at 391-391 ("When asked whether they 'had an opinion about . . .

Jeffrey Skilling,' none of the seated jurors and alternates checked the 'yes' box")

(emphasis added); id. at 390-91 ("As for pretrial publicity, 14 jurors and alternates

specifically stated that they had paid scant attention to Enron-related news. . . The

16 See also Skilling, 561 U.S. at 425 (Justice Alito's concurrence in which he
stated that sole question under the Sixth Amendment is whether a "biased juror is
actually seated at trial"; no other members of the Court joined him).
20
remaining two jurors indicated that nothing in the news influenced their opinions about

Skillinq.") (emphasis added); State v. Pelletier, 209 Conn. 564, 571 (1989) ("of the

twelve jurors and two alternates actually selected, none had substantial knowledge of

the case or preconceived notions of the defendant's guilt") (emphasis added).

As stated supra, in his opening brief, the defendant established that, of the 18

jurors, six had clear preconceived notions that the defendant was guilty, virtually all had

substantial knowledge of the case, and many had been told by spouses, parents, other

family members, other prospective jurors, friends, co-workers and/or others in the New

Haven community that the defendant was guilty and/or should be sentenced to death.

See DB at 50-59. The state's recitation of the voir dire does not refute this showing, and

in fact conclusively proves that the defendant suffered actual prejudice. See SB at 28-

38.17 The facts in this case stand in marked contrast to the cases in which courts have

found no prejudice because jurors had no formed opinion of the defendant, had paid

scant attention to the case, and did not have substantial knowledge of the case. See

Skilling, 561 U.S. at 391-391 ("When asked whether they 'ha[d] an opinion about

. . . Jeffrey Skilling, none of the seated jurors and alternates checked the 'yes' box"); id.

at 390-91 ("As for pretrial publicity, 14 jurors and alternates specifically stated that they

had paid scant attention to Enron-related news. . . "); Pelletier, 209 Conn. at 571 ("of the
twelve jurors and two alternates actually selected, none had substantial knowledge of

the case or preconceived notions of the defendant's guilt"); Mu'Min v. Virginia, 500 U.S.

415, 421 (1991) (no petit juror "had indicated that he had formed an opinion about the

case or would be biased in any way.").18

17
Tellingly, one of the least knowledgeable and biased of the jurors was C.A.,
who mostly read the New York papers. See SB at 37.
18In light of the voir dire of petit jurors R.F., L.K., and T.M.-T., as well as
alternates C.H., C.T. and C.J., it is unclear why the state twice seeks refuge in the trial
court's baffling statement that it is "an exaggeration to say that somebody who might
have had a fleeting opinion three and a half years ago, and now hasn't thought about it
21
 In short, it is difficult to fathom how the state can maintain that "[t]he defendant

has failed to establish actual bias on the part of any of the jurors ….," that "the impact of

the publicity" was not shown in the "voir dire responses" of the seated jurors, including

the alternates, and that "[a]ll of the seated jurors satisfied the parties that they would set

aside whatever preconceived opinions about the case they may have formed. . . ." SB

at 56, 57. Rather, it is clear both that the defendant has met his burden of proving

actual bias among the petit jurors and alternates, and that the state has failed to meet

its burden of rebutting the presumption of prejudice.

Furthermore, even if the voir dire of every venireperson is not relevant to whether

the defendant has established actual prejudice,19 it is relevant to whether the state has

rebutted the presumption of prejudice because, again, the entire voir dire must be

considered when assessing whether the seated jurors' assurances of impartiality are to

be credited. See State v. Piskorski, 177 Conn. at 690; Murphy, 421 U.S. at 802-803;20

United States v. Misla-Aldarondo, 478 F.3d at 59, citing, inter alia, Murphy, 421 U.S. at

802–803.

As the defendant demonstrated in his opening brief, the voir dire of the entire

venire indisputably establishes that the jurors' avowals of impartiality could not be

credited. See also DB at 50-77. The state fails to address this contention, and thus
must be seen as conceding the defendant's point.

all in three and a half years" is biased. SB at 43 & 59, citing Tr. 9/16/11 at 41-42. Not
one of the petit jurors or alternates stated that they had a fleeting opinion years before
and had not thought about it since.
19 However, even with respect to a defendant's showing of actual prejudice, the
voir dire of the entire venire is relevant to assessing the community's prejudgment of his
guilt (as opposed to the adequacy of the voir dire). See DB at 61, n.49.
20
Curiously, the state gets Murphy backwards. According to the state, it stands
for the proposition that if the trial court goes to great lengths in voir dire to find a jury,
that is a reason not to find actual prejudice. See SB at 59.

22
 With respect to the adequacy of the trial court's jury selection procedures in

detecting and defusing jury bias, the state fails to sufficiently address the defendant's

showing that those procedures were inadequate. See DB at 80-81. Instead, the state

points to the following procedures: (1) Connecticut's requirement of individual, attorney-

led voir dire (SB at 57); (2) the trial court's granting the parties "carte blanche to probe

each juror’s exposure to publicity surrounding the case" (id. at 57-59); and (3) the trial

court's instructions to the jurors throughout voir dire and the trial to avoid all publicity.

Id. at 60. However, the state fails to adequately brief its apparent contention that these

procedures were sufficient to detect and defuse jury bias in this case.21

The state makes much of the fact that the defendant did not use peremptory

challenges on any of the petit jurors. See SB at 57-59. However, given the

extraordinary prejudice evident throughout the voir dire and the number of

venirepersons who were openly hostile to the defendant, the state should seek no

refuge in the fact that defense counsel were forced to accept biased jurors. Such

acceptance was demanded by the stark reality that taint permeated the venire. As the

defendant explained in his opening brief, in addition to the twelve jurors whom the

defendant unsuccessfully challenged for cause, he was compelled to use peremptory

challenges on numerous other prospective jurors who evinced clear bias against him.
DB at 61-75. In addition, the state misstates the holding of State v. Vitale, 190 Conn.

219 (1983). There, the Court did not hold that "failure to exhaust peremptory challenges

indicates satisfaction with jurors selected," as the state claims. SB at 59. Rather, the

Court reinstated its rule that "[u]nless all his peremptory challenges have been

exercised before the completion of jury selection, it is presumed that no juror was

permitted to serve whom the defendant regarded as biased or unsuitable, although he

21 The state claims that only one petit juror, R.J., was exposed to the emotional
outbursts of venirepersons that led trial counsel to move to excuse the tainted panels.
SB at 62. Not so. Petit juror L.K. was also exposed. See Tr. 4/27/11 at 23, 31-32, 82-
83; Tr. 4/28/11 at 63 et seq.
23
might have preferred others." 190 Conn. at 225. Here, of course, the defendant

exercised all of his peremptory challenges before the completion of jury selection, and

unsuccessfully sought additional ones. Tr. 6/9/11 at 154-168.

The state claims that the trial court sought "'individually to uncover concealed

bias'" and that its "assessment of the jurors" is entitled to deference. SB at 56, 58, citing

Skilling, 561 U.S. at 386-87, 394-95. However, the record establishes that the trial court

merely took virtually every potential juror who claimed they could be fair at their word,

doggedly refusing to strike them for cause sua sponte or in response to a defense

cause challenge. See, e.g., DB at 50-77. In notable contrast, in Skilling, "[t]he District

Court . . . did not simply take venire members who proclaimed their impartiality at their

word. . . . The court viewed with skepticism, for example, Venire Member 104's

promises that she could 'abide by law,' follow the court's instructions, and find Skilling

not guilty if the Government did not prove its case." Skilling, 561 U.S. at 394 & n. 30.

See also DB at 75-77.22

The state has failed to refute the defendant's demonstration that he was entitled

to a presumption of prejudice. The state also has failed to rebut the presumption, and

has failed to rebut the defendant's showing of actual prejudice. Accordingly, this Court

must reverse and remand for a new trial.

22 The state places heavy reliance upon In re Tsarnaev, 780 F.3d 14 (1st Cir.
2015). See SB at 45, 47, 48, 55, 59. It is unclear why. There, the Court denied the
defendant's writ of mandamus challenging the district court's refusal to change venue in
the middle of jury selection. The Court's holding, which could not be less relevant to the
defendant's direct appeal, was as follows: "To compel the district court to change
course, a petitioner must show not only that the district court was manifestly wrong, but
also that the petitioner's right to relief is clear and indisputable, irreparable harm will
result, and the equities favor such drastic relief. . . . In the case before us, we cannot
say petitioner has met these onerous standards and so relief must be denied." 780
F.3d at 16. Tsarnaev presumably is now challenging the denial of his change of venue
motion under the far less onerous standards of a direct appeal. See United States v.
Tsarnaev, Appeal No. 16-6001 (U.S. 1st Cir.), direct appeal pending.

24
 II. The Trial Court's Erroneous Denial of the Defendant's Cause Challenges
of Twelve Prospective Jurors Was Prejudicial.

The state claims that this point is inadequately briefed because the defendant

"does not, with respect to any particular juror, identify what that juror said that overrode

the trial court's judgment that the juror could be fair and impartial. . . ." SB at 65.23 The

defendant did in fact identify and describe the twelve jurors' biased statements in Point I

of his brief, and specifically incorporated those detailed descriptions in Point II. See DB

at 62-73; 62, n.51; 83. Accordingly, the claim is more than adequately briefed.
Moreover, the state cites no authority to support its untenable assertion that parties are

not permitted to incorporate by reference another section of a brief, and indeed, the

state itself uses this common technique in its brief. See, e.g., SB at 128; SB at 136.

The state also claims that the "defendant cannot prevail . . . because the

defendant did not exhaust his forty peremptory challenges until after the twelve main

and six alternate jurors had been selected. . . ." SB at 63-64. In support of this

contention, the state cites State v. Campbell, 328 Conn. 444 (2018).24 However, the

holding in Campbell establishes the defendant was prejudiced by the trial court's

erroneous cause denials. Campbell held that "an improper denial of a challenge for

cause provides cause for reversal . . . if the party [who makes the challenge]
subsequently exhausts all of his or her peremptory challenges and an additional

challenge is sought and denied." (Emphasis added; internal quotation marks omitted.)

23 The state also claims that the defendant does not "identify any questions that
the trial court asked that improperly influenced the prospective jurors' responses." SB
at 65. The defendant does not contend that the trial court asked improper questions.
24The state also cites United States v. Martinez-Salazar, 548 U.S. 304 (2000).
Martinez-Salazar interprets Federal Rule of Criminal Procedure 24, and has no
relevancy to this issue. Id. at 315.

25
Id. at 476-77.25 Here, the defendant subsequently exhausted all of his peremptory

challenges and unsuccessfully sought additional challenges. Tr. 7/9/11 at 156-170.

Furthermore, he used peremptory challenges on each of the twelve jurors challenged

for cause, another Campbell requirement. See 328 Conn. at 476. Therefore, the

defendant was indisputably prejudiced by the erroneous cause denials. See also DB at

87 (setting forth claim of prejudice from the erroneous cause denials).

III. The Trial Court Abused its Discretion and Violated the Defendant's
Constitutional Rights by Failing to Grant His Motion to Reopen the Evidence, His
Motion for a Mistrial and/or His Motion for a Continuance.
As the defendant established in his opening brief, the state's belated disclosure

of the Hayes letters violated the defendant's rights under Brady v. Maryland, 373 U.S.

83 (1963), and its progeny. The letters strongly corroborated the defendant's theory of

the case and rebutted the state's assertion that the defendant orchestrated the murders.

Furthermore, the trial court corrupted the truth-seeking function of the trial forum and

committed reversible error by denying the defendant's motions to reopen the evidence

to introduce the letters, for a continuance to investigate them, and for a mistrial.

The state concedes that the evidence was favorable, but claims that (i) the

defendant was not prejudiced by the late disclosure; (ii) the evidence was not material;

and (iii) alternatively, if the evidence was material and the disclosure untimely, "the
record is inadequate to determine if the state suppressed them." SB 91, 93. The

state's arguments lack merit as a matter of fact and law, and a new trial is warranted.

The defendant was deprived of a fair trial as a result of the delayed

disclosure. The state had an affirmative obligation to timely disclose the exculpatory

evidence to the defense, particularly given its attempt to portray the defendant as "the

leader" of the offenses. Tr. 10/11/11 at 119. In failing to make a timely disclosure, the

state violated the defendant's due process rights. The state nonetheless claims a

25 Campbell was decided after the defendant filed his opening brief.
26
constitutionally adequate disclosure, arguing that "no denial of due process occurs if

Brady material is disclosed . . . in time for its effective use at trial." SB at 91. The state

suggests that "effective use at trial" was available by means of "the procedures provided

by our law when one becomes aware of information after evidence has closed," i.e., "he

moved to reopen the evidence and for a continuance." SB at 92. The state fails to

explain how its proposed relief to remedy the delayed disclosure was "effective" given

that the state maintains that the trial court properly denied the defendant's motions to

reopen the evidence and for a continuance. Moreover, the state ignores that timeliness

must be assessed in relationship to the defense's opportunity to meaningfully use the

information, which includes sufficient time to conduct an investigation. See Leka v.

Portuondo, 257 F.3d 89, 101 (2d Cir. 2001).

The state scours the 132 pages of ID DE BBB for isolated parts that support its

claim that the letters are not material because parts contradict rather than corroborate

the defendant's theory that he did not intend to kill anyone. SB at 92.26 There is little

question that the thrust of the letters, consistent with the defendant's argument at the

trial below, is that Hayes hatched the murder plot and the defendant's role in the

incident was lesser and subordinate to him.27 The letters would have strongly

26 The state also suggests, in passing, that the record is inadequate for this Court
to review the materiality of the evidence. SB at 89-90. As an initial matter, the state
fails to conduct any analysis of facts or law to support its contention. Additionally, under
the prevailing precedent, the state is wrong. See, e.g., State v. Ortiz, 280 Conn. 686,
719–20 (2006) (determination of materiality is a question of law subject to plenary
review).
27 See ID DE BBB, A113 ("I do now realize had we gotten away[,] I would have
killed Josh. He was even close to being worthy of my partnership."); A113 ("His
sloppiness and lack of control would have been my downfall, was my downfall.");
A158 ("This was a dry run to see if Josh had what it took to become a great hunter like
me."); A159 ("[Josh] was supposed to kill [WP] . . . he told me he killed before."); A167
("I truly wanted to kill Josh right there and then."; A169 ("I should have killed Josh in the
house"); A169 ("the final kick to the crotch was when I learned not only did Josh not kill
the dad like he said he did, he also did not kill the two girls."); A170 ("I said it before and
I’ll say it again, I wish I took Josh out.").
27
supported the defense theory that Hayes was the mastermind of the murders, and

refuted the state's contention that the defendant was "the leader" in the incident, who

was "pulling the strings and controlling [Hayes'] every move." Tr. 10/11/11 at 119, 125.

Further, the portions of the letters in which Hayes incriminated the defendant could

easily have been redacted. Alternatively, the jury might well have rejected the self-

serving portions of the letters. See DB at 98. Finally, had the defense been given the

letters in a timely fashion, it would have conducted further investigation to use the

evidence to its full advantage.

The defendant was deprived of a fair trial as a result of the delayed disclosure.

The state has failed to show otherwise.

The trial court committed reversible error by denying the defendant's

motion to reopen the evidence. The parties agree that to determine whether the trial

court abused its discretion in denying the defendant's motion to reopen the evidence,

this Court must first determine whether the Hayes letters were admissible. With respect

to the relevant criteria under Conn. Code Evid. § 8-6 (4), the state concedes that Hayes

was unavailable as a witness and that the statements are clearly against Hayes' penal

interests. SB at 82. Nevertheless, the state contends that the statements are not

sufficiently trustworthy to be admissible as a declaration against penal interest, relying

on the timing of the statements, the relationship between Hayes and the recipient of the

letters, and the purported lack of corroborating evidence in the case. SB at 81-87.

With respect to the timing of the statements, whether a statement is self-

inculpatory, and therefore reliable, can only be determined by viewing it in context.

State v. Bryant, 202 Conn. 676, 699 (1987). Hayes is an admitted participant to the

crime, and he made the contested statements while his direct appeal was pending and

in contravention of his own interests. See State v. Pierre, 277 Conn. 42, 68-69 (2006)

(statement in which declarant provided details of his own and his accomplice’s actions
in murder deemed reliable because it squarely implicated him). Accordingly, the cases

28
on which the state relies (see SB at 82-83) 28 involving statements by alleged third-party

culprits who were not facing criminal liability when they made them have little to no

bearing on the issue before the Court.

Capitalizing on the fact that its delayed disclosure left the defense with no time to

investigate, the state asserts that nothing was known about the recipient of the letters

"except that the person lived in North Carolina." SB at 83. Hayes' statements in the

letters establish their reliability irrespective of the identity of the recipient. In them, he

professed to share a "dark secret" and asked the person to keep his confidence until

after his execution. He also provided extensive details about the murders as well as

other crimes exposing him to criminal liability. These confessions and admissions more

than established the confidential relationship necessary for admission. State v. Rivera,

221 Conn. 58, 70 (1992). Assuming arguendo that additional information about the

intended recipient of the letters was necessary, the trial court should have granted the

defendant's request for a continuance to investigate the letters. See DiSimone v.

Phillips, 461 F.3d 181, 197 (2d Cir. 2006) ("[K]nowledge of [witness'] statement would

have induced the defense to conduct further investigation in order to use the evidence

fully."). The state cannot be heard to assert in one breath that the defendant failed to

make an adequate showing to establish the admissibility of its untimely disclosure and
in the next that the trial court properly denied him the additional time to do so.

The state further claims that the letters lack sufficient corroboration. The state,

like the trial court, focuses its analysis on whether there was sufficient corroboration for

Hayes' claims of raping and murdering 17 women. First, there was such

State v. Snelgrove, 288 Conn. 742, 770 (2008) (jailhouse confession

28

supposedly made to another inmate two to three years after the murder and the
defendant's arrest); Martin v. Flanagan, 107 Conn. App. 544, 550 (2008) (jailhouse
confession supposedly made to another inmate almost two years after the murder).

29
corroboration—the state references but effectively ignores the evidence establishing

that the police seized women’s sneakers when they searched Hayes' residence.

Second, and in any event, neither the state nor the trial court has identified any legal

authority suggesting that collateral statements closely related to the statement against

interest must find support in the evidence in the case, and in fact, this Court's precedent

would appear to suggest otherwise. This Court has held that even non self-inculpatory

statements at odds with the evidence in the case are admissible when they are integral

to the larger statement which is against the declarant's interest. State v. Bryant, 202

Conn. at 692-93 (trial court improperly excluded statement against interest on account

of speaker's "selective declarations" admitting to charged burglary but not the sexual

assault of the victim; "[t]here are cases where allowing . . . latitude to contextual

statements may give real meaning to the declaration that is disserving").29 Here, the

collateral statements concerning the other crimes provided essential context to the

inculpatory statements Hayes made regarding his leadership role in this case.

Moreover, and relatedly, as the defendant demonstrated in his opening brief,

even if there is a requirement that every statement within the larger narrative must meet

the trustworthiness requirement, and Hayes' claims of raping and murdering 17 women

were not sufficiently corroborated, the sexual fantasies detailed in the letters established
his modus operandi, intent, and motive in this case and thus were admissible under

Conn. Code Evid. § 4-5 (c). See State v. Michael D., 153 Conn. App. 296, 318–19

(2014) (similarity between the fantasies depicted in defendant's "Barely Legal"

29 For the same reason, the state's argument that the letters were not sufficiently
reliable because not all of Hayes' assertions in the letters find support in the trial
evidence should be rejected. See SB at 84-86. As the defendant demonstrated in his
opening brief, there was more than sufficient corroborating evidence in the case to
establish the reliability of the proffered evidence, including: (1) Hayes taking J.P. to the
bank; (2) Hayes raping and strangling J.P.; (3) Hayes purchasing the gasoline and
pouring it throughout the P. residence; and (4) the defendant's statement to the police
regarding his suspicion of Hayes and the discord that developed between the two men.

30
pornographic magazines and sexual assaults described by the minor victim justified

admission of the magazines to show defendant’s intent).30

Perhaps recognizing the weakness of its position, the state proceeds to argue

that because the sneaker recovered in Hayes' vehicle belonged to H.P., not J.H.P., and

because the evidence at trial established that Hayes sexually assaulted J.H.P., not

H.P., there was minimal corroboration to support the trustworthiness of the letters. SB

at 85-86. The deficiency of the state's cabined approach is plain on its face; however, it

bears repeating that Hayes detailed in the letters a fetish for women's sneakers and the

role it played in his rape and strangulation and/or asphyxiation of 17 women, an M.O.

fully consistent with Hayes' conduct in this case.

Finally, the state seeks to justify the trial court's exclusion of the evidence on

account of the trial court's independent evaluation that the letters would be the "seal of

[the defendant’s] doom." Tr. 10/12/11 at 25-26; SB at 86. Again, the self-serving

portions of the letters in which Hayes shifted blame to the defendant could have been

redacted. See DB at 98.31 Moreover, the constitution guarantees criminal defendants a

30 The state contends this claim is not preserved because M.O. is not an "explicit
basis for admission listed in Conn. Code Evid. § 4-5(c), and the defendant did not offer
that as a basis for admission." SB at 82. In fact, the rule explicitly provides that
"common plan or scheme [and] a system of criminal activity" are bases for admission.
Defense counsel made sufficiently clear their position that the evidence was admissible
and exculpatory because it demonstrated Hayes' modus operandi and intent. See Tr.
10/12/11 at 19-20 (defendant's trial counsel details crimes of strangulation and/or
asphyxiation contained in the letters; "in his sick, demented mind . . . that shows an
M.O. which shows premeditation."); Tr. 10/11/11 at 5 ("in the defense's opinion, the
crimes that he recites that are outside of this case are relevant in this case under, by
analogy, say, [Federal] Rule 404b, for instance, they are directly related to this case.").
A party need not use terms of art to preserve a claim for review where, as here, the
substance of the claim was functionally before the court. Fadner v. Commissioner of
Revenue Servs., 281 Conn. 719, 730 n. 12 (2007). The defendant's arguments
sufficiently apprised the trial court and the state of the controlling issues, and therefore
review is appropriate.
31 The state contends that "[b]ecause the defendant did not offer redaction as an
option to the trial court, the trial court did not reasonably exercise any discretion on that
point, and this claim is unreviewable." SB at 86. The defense wanted to present the
31
meaningful opportunity to present a complete defense. Holmes v. South Carolina, 547

U.S. 319, 319–20 (2006). It was the prerogative of the defendant and his lawyers to

exercise judgment in determining whether the defendant should make use of the

evidence,32 and it was the jurors' responsibility as finders of fact, not the trial court's, to

accept or reject the defendant's theory. Bryant, 202 Conn. at 693.

In sum, based on the totality of the relevant factors, the Hayes letters met the

requirements for admissibility under § 8-6 (4). The trial court committed reversible error

by denying the defendant's motion to reopen the evidence.

The trial court committed reversible error by denying the defendant's

motions for a continuance and for a mistrial. The state attempts to justify the court's

denial of the defendant's motion for a continuance by arguing that the trial court

"properly took into account the low evidentiary value" of the letters and "the low

likelihood" that the defendant would use the evidence. SB at 87-88. Defendant's trial

letters in his defense and requested a continuance to investigate the evidentiary

potential of the documents. Tr. 10/12/11 at 13. The trial court sua sponte assumed the
role of defense counsel and presupposed that there was no way that defense counsel
could make effective use of the letters. Had the defense been afforded the additional
time requested, it would have been able to offer a fulsome rebuttal to the trial court's
misplaced conclusions. Specifically, it would have shown that those portions of the
letters that the trial court appeared to believe were prejudicial to the defendant were
subject to redaction because they were self-serving, and thus not against Hayes' penal
interest within the meaning of Conn. Code Evid. § 8–6(4). See Williamson v. United
States, 512 U.S. 594, 600-01 (1994) (Rule 804(b)(3) does not allow admission of non-
self-inculpatory statements); State v. Schiappa, 248 Conn. 132, 155 (1999) (statements
satisfied the exception where there was nothing to suggest the declarant "was
attempting to shift blame or responsibility to the defendant or to otherwise minimize his
own criminal involvement.").
32 DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006) (finding evidence
implicating a third party is material under Brady, even where such evidence is both
exculpatory and inculpatory, because "it was the prerogative of the defendant and his
counsel . . . to exercise judgment in determining whether the defendant should make
use of it."); Vaughn v. United States, 93 A.3d 1237, 1254 (D.C. 2014) (the task of
evaluating the exculpatory value of information for use at trial is a matter for defense
counsel).

32
counsel indicated that the letters contained "crucial" "exculpatory information . . . that

we would like to pursue and present." (Emphasis added.) Tr. 10/12/11 at 21, 22.

The defense expressed its wish to investigate the identity of the intended recipient,

review her letters that prompted Hayes' response, and obtain additional information

concerning the other crimes Hayes purported to commit. Tr. 10/11/11 at 5-6; 10/12 at

12, 21.33 This Court should reject the state's invitation to rely on unsupported

assertions concerning what the defense may or may not have done with the evidence

when the record establishes the defendant's intent to investigate the evidence and use it

in his defense.

The state suggests that the evidence had little probative value on the element of

intent because "being in charge was not an element of any offense." SB at 88. As the

state recognized in its closing arguments, which relied on the defendant's purported

leadership skills to establish his intent to kill, a jury's conclusion that a defendant was

the leader of a criminal offense will make the jury far more likely to conclude that the

defendant intended the consequences of the offense. See Tr. 10/11/11 at 119 ("the

defense would want you to believe that [the defendant] was a follower, not able to make

decision on what to do, not having intent to kill . . . you may find not only was [the

defendant] the leader, but he's a gifted manipulator."). At trial, the defense attempted to
show that the defendant, stunned by Hayes' conduct during the crime, was slow to

process and react appropriately, and that the evidence establishing his cognitive deficits

coupled with his statement to the police weighed against a finding on the element of

intent. While "being in charge" was obviously not an element of the offenses, subsidiary

33 As the defendant argued in his brief, it is for this reason that the state's Brady
obligations do not depend on whether the information at issue is admissible. See
Lapointe v. Commissioner of Correction, 316 Conn. 225, 262, n. 34 (2015) ("objectives
of fairness to the defendant, as well as the legal system's objective of convicting the
guilty rather than the innocent, require that the prosecution make the defense aware of
material information potentially leading to admissible evidence favorable to the
defense."), quoting United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007).
33
facts showing that Hayes was the mastermind and the defendant the follower — facts

that undermine the state's contentions — were certainly relevant to the ultimate fact to

be proven beyond a reasonable doubt: whether the defendant had the requisite intent to

kill. See State v. Whelan, 200 Conn. 743, 758 (1986).

Finally, the state argues that the court was entitled to put "significant weight" on

the delays potentially associated with a continuance, faulting the defense team for not

responding quickly enough to the prosecution's belated disclosure. SB at 89. The

defendant requested a continuance on the next court date after receiving the letters

from the state. See SB at 66. The trial court acknowledged that a continuance would

be warranted if it were a court trial, but refused the defendant's request and insisted on

moving forward because "the jury [was] . . . ready to go." Tr. 10/11/11 at 6. While trial

courts have discretion in deciding whether to grant a continuance, the exercise of that

discretion must be based on appropriate factors. See State v. Peeler, 271 Conn. 338,

416 (2004) (An "abuse of discretion exists when a court could have chosen different

alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it

based on improper or irrelevant factors."). A criminal defendant's constitutional right to

present a defense trumps scheduling concerns—whether his case is tried to a court or

jury. Had the defense been permitted to make use of the evidence, as it would have
been if it were a court trial, there is a reasonable probability that the result at trial would

have been different. See DB at 94-95. The state's contention that the defendant was

the leader would have been significantly undermined, and the jury substantially less

likely to find the defendant intended to kill.

The state, through its agent DOC, suppressed the letters. Alternatively, the

state contends that if the letters were material and the disclosure was not during trial,

"the record is inadequate to determine if the state suppressed them." SB at 93.

Specifically, for the first time on appeal, the state claims that it is not clear "whether the
DOC was acting as the agent of the prosecution in this case." SB at 94.

34
 As this Court only recently explained, "the prosecutor has a duty to learn of

exculpatory evidence in the possession of any entity that is acting as an agent or arm of

the state in connection with the particular investigation at issue." State v. Guerrera, 331

Conn. 628, 647 (2019). The Court further recognized: "From time to time . . . the

department [of corrections], upon express request of the state's attorney responsible for

prosecuting a particular criminal case, will review some but not all of the calls and visits

of those inmates who have been charged in that case. Because the department is

acting as an investigative arm of the state in conducting that review, the calls and visits

reviewed at the state's attorney's behest are part of the state's investigation into the

case such that, like all other material and information gathered or developed as part of

the investigation, those calls and visits are subject to the disclosure requirements of

Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)." Id. at 631.

To determine whether the prosecution is deemed to be in possession of information

helpful or useful to the defense, the court must examine the circumstances of the

person or entity allegedly acting as its agent. Id. at 648.

Here, the record shows that the prosecution obtained and reviewed Hayes'

personal communications pursuant to its investigation of this case and that DOC

assisted the prosecution by intercepting all communications connected to this case. Tr.
9/19/11 at 59 ("all of [the defendant's] personal mail leaving the institution and coming

in [is] copied and turned over to the State through Detective Medina.") (Emphasis

added). Consistent with this showing, upon disclosing the letters to the defense, the

prosecution reported to the trial court that DOC had intercepted the Hayes letters. Tr.

10/11/11 at 6. Additionally, the prosecution did not dispute the defense's contention that

the prosecution and DOC were acting as a single "entity." Tr. 10/12/11 at 12 (Attorney

Bansley: "As I'm sure the Court is aware, the state is an entity, and Mr. Dearington is

one piece of the entity."). Rather, as the state acknowledges in its brief, the state's

35
argument before the trial court centered on the letters' purported inadmissibility. SB at

78; Tr. 10/12/11 at 22.

Accordingly, DOC was acting as the state's agent, and the letters should have

been disclosed in a timely manner.34

Even if the letters did not satisfy the Brady test, the trial court committed

reversible errors by denying the defendant's motions to reopen the evidence, for

a continuance and for a mistrial. Finally, as set forth in the defendant's opening brief,

even if the evidence was not suppressed for purposes of Brady, the defendant was

prejudiced as a result of his inability to make use of the evidence confirming his theory

of the case. DB at 100-101. The trial court should have reopened the evidence and

allowed the admission of the letters, granted a continuance to allow the defense an

opportunity to obtain additional information to establish admissibility, or granted the

defendant’s motion for a mistrial. As a result of the trial court's erroneous rulings, the

defendant was deprived of a fair trial and of his right to present a defense. U.S. Const.

Amend. V, VI, XIV; Conn. const. art. I, §§ 8, 9; Holmes v. South Carolina, 547 U.S. at

324. A new trial is warranted.

IV. The State Corrupted the Truth-Seeking Function of the Trial Forum by
Failing to Disclose to the Defendant Multiple Police Calls that Would Have
Provided Substantial Support to His Theories of Defense; and the Defendant Was
Prejudiced as a Result.

As the defendant demonstrated in his opening brief, the state failed to disclose to

trial counsel various telephone calls to and from the Cheshire Police Department. The

34 For the counter proposition, the state cites Stevenson v. Commissioner of

Correction, 165 Conn. App. 355, 367 (2016) and United States v. Avellino, 136 F.3d 249
(2d Cir. 1998). Neither case is analogous to the circumstances here. Moreover, to the
extent that the state relies on these cases to argue that the state is not constructively on
notice of favorable information in DOC's possession where DOC and the prosecution
are acting in concert, its contention is refuted by this Court's holding in State v.
Guerrera, 331 Conn. 628 (2019).

36
calls would have: (i) strongly supported the defendant's theory that, because of their

woefully inadequate response to the 911 call from the Bank of America, the Cheshire

police were motivated by guilt, anger and embarrassment to undermine the credibility of

the exculpatory parts of his police statements; (ii) strongly supported the defense theory

that Steven Hayes was the mastermind of the murders and that the defendant, stunned

by Hayes' statements and actions during the crime, was slow to process and react

appropriately to them; and (iii) constituted powerful exculpatory evidence of the

defendant's exhaustion and disorientation when arrested and when he waived his

Miranda rights and gave his police statements. By failing to disclose these critical calls,

the state corrupted the truth-seeking function of the trial, and violated the defendant's

rights under Brady v. Maryland, 373 U.S. 83, and its progeny. DB at 87-101. Excepting

the C.H.-R. call, the state concedes the "non-disclosure" and "favorability" of all of the

calls. SB at 101. But it claims that the calls were "cumulative" and thus not material.

SB at 96, 101 ("the only issue is materiality."). The defendant addresses in detail each

category of withheld calls below. As an initial matter, however, the defendant points out

that the state misconstrues the definition of cumulative evidence. SB at 118. As the

Fourth Circuit has explained: "Because every additional piece of evidence offered is, by

definition, cumulative, cumulative evidence is not bad per se. Indeed, under the Federal
Rules of Evidence it is the 'needless presentation of cumulative evidence' that is to be

avoided. Fed.R.Evid. 403." United States v. Dickerson, 166 F.3d 667, 679–80 (4th Cir.

1999), reversed on other grounds, Dickerson v. United States, 530 U.S. 428 (2000).

See also Connecticut Rules of Evidence, Sec. 4-3 ("Relevant evidence may be

excluded . . . by considerations of . . . needless presentation of cumulative evidence.").

Chief Judge Posner has offered an excellent definition of cumulative evidence:

Evidence is "cumulative" when it adds very little to the probative force of the other
evidence in the case, so that if it were admitted its contribution to the determination of
truth would be outweighed by its contribution to the length of trial, with all the

37
 potential for confusion, as well as prejudice to other litigants, who must wait longer for
their trial, that a long trial creates.
United States v. Williams, 81 F.3d 1434, 1443 (7th Cir.1996).35

Evidence is not cumulative when it adds probative value to the defendant's

theory of the case. United States v. Parker, 790 F.3d 550 (4th Cir. 2015), and United

States v. Mahaffy, 693 F.3d 113 (2d Cir. 2012) are also instructive. In Parker, the court

explained that impeachment evidence is cumulative and thus not material only when it

is of "'marginal additional support for the defense.'" 790 F.3d at 558, quoting United

States v. Bartko, 728 F.3d 327, 339 (4th Cir.2013). In Mahaffy, the court rejected the

government's argument that the withheld impeachment evidence was not material

because the witness "was subject to thorough cross-examination at trial." 693 F.3d at

132. The court explained that without the evidence "the defendants were able to 'chip[

] away on cross examination,' but were denied 'the assault that was warranted.'" Id.,

quoting Kyles v. Whitley, 514 U.S. 419, 443 n.14 (1995).36

35 Cf. Skipper v. South Carolina, 476 U.S. 1, 7-8 (1986):

… the State seems to suggest that exclusion of the proffered testimony was proper
because the testimony was merely cumulative of the testimony of petitioner and his
former wife that petitioner's behavior in jail awaiting trial was satisfactory, and of
petitioner's testimony that, if sentenced to prison rather than to death, he would
attempt to use his time productively and would not cause trouble. We think,
however, that characterizing the excluded evidence as cumulative and its exclusion
as harmless is implausible on the facts before us. The evidence petitioner was
allowed to present on the issue of his conduct in jail was the sort of evidence that a
jury naturally would tend to discount as self-serving. The testimony of more
disinterested witnesses—and, in particular, of jailers who would have had no
particular reason to be favorably predisposed toward one of their charges—would
quite naturally be given much greater weight by the jury.
36 In support of its argument that the undisclosed calls were cumulative and thus not
material, the state cites an unpublished opinion by the United States Court of Appeals
for the Fourth Circuit, United States v. Cannady, 719 F. App'x 237 (4th Cir. 2018). See
SB at 102, 118. Cannady could not be less relevant. There, the court found the
withheld document was not material because "the cross-examination . . . lasting three
days, was thorough, rigorous, and all-encompassing," and because the withheld
document was "of inconclusive and minimal impeachment value." 719 F.App'x at 241.
38
 Thus, withheld evidence can be deemed immaterial only when it is of marginal

additional support for the defense, adding very little to the probative force of the other

evidence in the case. Under the correct legal standard, the withheld evidence in this

case can by no means be dismissed as immaterial. Although trial counsel could chip

away at the police witnesses in an attempt to establish a motive to massage, distort and

possibly fabricate facts, they were denied the assault that was warranted by the

withheld calls. As in Mahaffy, the defendant "was forced to mount [his] defenses

without the benefit of material . . . impeaching testimony." 693 F.3d at 133. As a result,

the state's "'case was much stronger, and the defense case much weaker, than the full

facts would . . . suggest.'" Id. at 134, quoting Kyles, 514 U.S. at 429.

The inadequate police response calls. In his opening brief, the defendant

demonstrated that numerous suppressed police calls would have strongly supported his

theory that, because of their woefully inadequate response to the 911 call from the Bank

of America, the Cheshire police were motivated by guilt, anger and embarrassment to

undermine the credibility of the exculpatory parts of his police statements. DB at 103-

111. The state fails to show otherwise.

The state argues that the police response calls are cumulative because the

defense had other evidence of the inadequate police response and argued to the jury
that the inadequate police response affected the police witnesses' credibility. SB at

117-123. For the reasons explained above, this argument misconstrues the definition of

cumulative, immaterial evidence; it is not the case, as the state appears to suggest, that

evidence is cumulative and thus immaterial merely because the defense presented the

theory without the benefit of the suppressed materials. Furthermore, the state fails to

acknowledge two critical points. First, the adequacy of the Cheshire police response

was a vigorously disputed issue at the trial. See, e.g., Tr. 9/20/16 at 131-134, 162-174

(Vignola testimony); 9/26/11 at 18-22 (Vitello testimony); 9/21/11 at 106-110 (Markella

testimony); 9/20/11 at 119-123 (Giampietro testimony). Second, the evidence and

39
argument defense counsel presented at trial regarding the inadequate police response

were nowhere near as compelling as they would have been had the calls been

disclosed. Cf. SB at 105-116 (setting forth use of inadequate police response at trial)

with DB at 108-109 (demonstrating power of withheld calls).

The state claims that the Sgt. Cote Intercept Call (D.Ex. C-4A) was cumulative

because "the defendant used [other] evidence that police had been directed to try to

intercept the Pacifica and argued that they could have done so." SB at 118, citing Tr.

9/20/11 at 188, 9/21/11 at 43-45, 9/26/11 at 19. The state's record citations do not

support its claim that other evidence was introduced that the police were directed to try

to intercept the Pacifica; Sgt. Cote was the only police officer who was so instructed.

Furthermore, no other police officer was anywhere near as close to the bank and J.P.'s

vehicle as Sgt. Cote. To be sure, trial counsel sought to present evidence and to argue

that the Cheshire police experienced guilt, anger and embarrassment as a result of their

failure to stop the car. But no piece of evidence they presented was as powerful in

proving the basis for these motivations as the Cote Intercept Call. Sgt. Jeffrey

Sutherland first heard about the incident from the broadcast-to-all-units call, and at that

time he was outside of his vehicle walking into the Cheshire Youth Center, which was

over two miles from the Bank of America and over a mile and a half from the P.
residence. Tr. 9/21/11 at 43-45; S.E. 39. Similarly, when Phillip Giampietro heard the

broadcast-to-all-units call, he was off duty and working a construction job; because

construction vehicles were blocking the road, it took him five minutes to leave the site

and another three to five minutes to arrive at the P. residence. Tr. 9/20/11 at 94, 95,

116-17. When defense counsel asked Giampietro if he recalled "any attempt by any

member of your police department to intercept the Pacifica before it got back to the P.

house", he replied: "The radio transmission was broadcasted to be on alert, so nobody

had any contact with patrol units that were working or were alerted to the fact that it was
traveling." Id. at 121.

40
 The state is simply wrong that the Sgt. Cote Intercept Call "would not have

provided different support for a claim that the police" experienced guilt, anger and

embarrassment as a result of their failure to stop the car. SB at 118. Based on the

record, there is no dispute that Sgt. Cote had a much greater opportunity to intercept

the Chrysler Pacifica than any other Cheshire officer. His close proximity to the bank

just as J.P. and Hayes were leaving it, and the direct command he received to try to

intercept the victim's car, as established by the call, cannot be fairly characterized as

"cumulative."37

The state claims that the Vignola Heading-out Call (D.Ex. C-4E) was cumulative

because "the defendant had and used similar information – i.e., that Cheshire police

were dispatched soon after JHP and Hayes left the bank. . . ." SB at 119. But the

suppressed call established that Vignola, unlike those other officers, stated that he was

"heading out" while J.P. was still in the bank, then took nine minutes or more before he

finally got around to heading out. The Heading-out Call was not cumulative.38

The state incoherently claims that the Hostage-negotiator Call (D.Ex. F) in which

the hostage negotiator was instructed not to report for duty was "cumulative of the

37 The state further claims that "the statement that directs Cote to head out does
not occur until about 2 minutes into the call, about a minute after the broadcast to all
units." SB at 118. First, Cote was never directed to "head out"; he was already
patrolling in his vehicle and right near the Bank of America when he was contacted by
Officer Regan. Second, Cote was told some 25 seconds into the call that J.P. had just
left the bank, which was before the broadcast-to-all-units call. See D.Ex. C-4A;
Dispatch Log, D.Ex. A (trial).
38 In contending that the Heading-out Call (D.Ex. C-4E) and the Driveby Call (D.
Ex. C-4B) were cumulative because the defendant "had and used similar information"
that "Cheshire police were dispatched soon after JHP and Hayes left the bank" and that
other "officers had done a drive by of the house," the state misconstrues the defendant's
argument. SB at 118-119. The defendant's argument, as clearly set forth in his brief, is
that these two calls establish either that "Vignola was still on his way to do the drive-by
nine minutes or more after 'heading out'" or that he observed J.P.'s vehicle before it
arrived back at the P. residence. See DB at 109 & n. 95.

41
examination of Vignola regarding receiving a call with the numbers of the house phone,

discussing the preparations of the inner perimeter that he wanted to complete before

initiating contact, and the extent to which that conduct was consistent with training that

officers had received for dealing with hostage situations. T.9/20/11 at 132-33; 146; 166-

67; 171-73." SB at 119.39 These points from Vignola's examination have nothing to do

with the separate point that the hostage negotiator was instructed not to report for

duty.40

In its brief, the state misstates trial counsel's reason for focusing on the

inadequate police response. The state claims that counsel's reason was "to impeach

their credibility on issues such as the defendant's cooperation at his arrest and his

demeanor when giving his statement." SB at 120. The state also claims that "[i]n

closing argument, defense counsel addressed the effect that criticism about the police

response would have on Vitello's testimony – none of the missing calls would have

changed or enhanced that argument." SB at 121 (failing to cite any portion of trial

counsel's closing). In fact, as clearly explained in his brief, trial counsel focused on the

inadequate police response to show that, "because of their inadequate response, [the

Cheshire police] were motivated by guilt, anger and embarrassment to undermine the

credibility of the exculpatory portions of the defendant's statements, including his denial
of any intent to kill." DB at 110, 116. See also Tr. 10/11/11 at 73-74; 82-83:

Everyone knows that a police officer has spent his career in arresting people
and making cases. Police officers will color their testimony somewhat toward the
prosecution, but in this case, it's very, very different because you could see

39
The state further claims that "[n]othing in the record shows that the person who
called was the only CPF officer trained in hostage negotiation." SB at 119. Of course,
the state had every opportunity during the Floyd hearing to present evidence that there
was a CPF officer at the scene who was trained in hostage negotiation, but failed to do
so.
40
Similarly, the SRT Call (D.Ex. E) and the Don't-Know Call (D.Ex. D) also would
have supported the defendant's theory.

42
 Detective Vitello and the other Cheshire Police Officers are left with every day[,]
what if I had done something differently, and this colors their testimony with respect
to Joshua Komisarjevsky. It's not just that a police officer says, I want there to be
an arrest. It's not just this is a horrible crime, I want the man that was arrested to be
punished. It's we may have made mistakes that could have saved lives, I
believe, and you could see it in his testimony. (Emphasis added.)

Without question, the withheld calls would have greatly strengthened trial counsel's

argument.

The state also argues that the suppressed calls are not material because of the

strength of its case. See SB at 102, 121.41 It argues that "Vitello's testimony was a

small piece of the evidence the state relied on for proving intent," arguing that the

following constitutes "substantial independent evidence" of the defendant's intent:

Here, the state cited as evidence of the defendant's intent his motive for
destroying DNA evidence of his anal assault of MP; that the absence of WP's blood
on the gloves as well as the absence of gas supported a finding that the defendant
had washed his gloved hands; that the time frames from Hayes strangling JHP to
the defendant and Hayes fleeing the house meant that there "is absolutely no way"
that Hayes alone poured the gasoline; and the defendant's own statements (he
untied and retied both girls, he stood guard while Hayes went to the bank and gave
Hayes directions back, he did nothing to help them while the gas was being
poured). (SB at 121.)

The cited evidence most assuredly does not constitute substantial independent
evidence of an intent to kill. Furthermore, the state conveniently ignores the substantial
amount of evidence refuting an intent to kill:

 "The defendant's denials in his police statement that he intended to kill the
victims or participated in killing them." (DB at 88, 10-11.)
 "Hayes [took] J.P. to the bank." (Id. at 88.)
 "Hayes rap[ed] and strangl[ed] J.P." (Id.)
 "Hayes purchase[d] the gasoline, [he] pour[ed] it throughout the P. residence,
and [lit] the match that set the residence on fire and killed H.P. and M.P." (Id.)

41
The state baldly asserts that "the nexus between the evidence of police
response [sic] and motive to fabricate is weak. . . ." SB at 118. On the contrary, the
evidence of the inadequate police response and the resulting motive to massage, distort
and possibly fabricate were particularly robust.
43
  "Hayes and the defendant were immediately arrested while attempting to flee.
The police questioned Hayes first, but he gave them a false name and
refused to tell them whether anyone was alive in the house. . . . He was in
possession of a BB gun he had purchased at a Walmart. . . .The police then
turned to the defendant who immediately told the police that two girls were
alive in upstairs bedrooms." (Id. at 7.)
 "When arrested, Hayes was doused in gasoline, including on his sneakers,
socks, pants, t-shirt and sweatshirt. . . . The defendant had gasoline on his
boots, pants and sweatshirt, but not on his socks, briefs, shirt, work gloves or
the latex gloves that he had worn throughout the incident, including when
arrested." (Id. at 11, n.23.)
 "DNA consistent with the defendant's was found on an anal swab taken from
M.P. However, the DNA STR testing done in this case is 'very sensitive’ and
highly susceptible to contamination and migration. . . .Moreover, the
defendant's penis had his sperm on it, but none of M.P.'s DNA. . . .[T]here
was no tearing of M.P.'s anus." (Id. at 9, n.20.)

Finally, the state contends that, "at the Floyd hearing, defense counsel testified

that arguments about inadequate police response were offered pursuant to a strategy of

front-loading mitigation for the penalty phase, to have the jury prepared to diminish their

sense of the defendant’s moral culpability." SB at 123. See also id at 116, citing Tr.

2/23/16 at 47 (testimony of trial counsel Todd Bussert). In fact, Attorney Bussert

testified that trial counsel had two distinct reasons for attacking the police response:

one was to front load mitigation, and the other was "this idea that relative to how the

police described Mr. Komisarjevsky on the day in question and interviews and things

that may have been said outside of . . . the recorded statement that he made, that they
were trying to – in an effort to paint themselves in the most positive light, paint him in

the most negative light and we felt . . . perhaps were skewing their testimony in that

way." Id. at 51.

The withheld calls relating to the inadequate police response were not cumulative

and would have strongly supported the crux42 of the defense theory at trial that because

42 The state purports to take issue with the defendant's opening brief, stating:
"contrary to the defendant’s assertion; DB 107; inadequate police response was not the
'central focus' of his closing argument." (Emphasis added.) SB at 122. In fact, on
44
of their woefully inadequate response to the 911 call from the Bank of America, the

Cheshire police were motivated by guilt, anger and embarrassment to undermine the

credibility of the exculpatory parts of his police statements. See, e.g., Kyles v. Whitley,

514 U.S. at 447–48 ("These statements, along with the internal memorandum stating

that the police had 'reason to believe' Dye's personal effects and Schwegmann's bags

would be in the garbage, would have supported the defense's theory that Beanie was

no mere observer, but was determining the investigation's direction and success.").

Accordingly, this Court must reverse the defendant's convictions and remand for a new

trial.

The Calls Shedding Important Light on the Defendant's Mental State and

Culpability. In his opening brief, the defendant demonstrated that two other withheld

police calls (i) strongly supported the defense theory that Steven Hayes was the

mastermind of the murders and that the defendant, stunned by Hayes' statements and

actions during the crime, was slow to process and react appropriately to them; and (ii)

constituted powerful exculpatory evidence of the defendant's exhaustion and

disorientation at the time of his arrest when he waived his Miranda rights and gave his

statements to the police. DB at 101-102; 114-118. The state fails to refute this

showing.
The state argues that the Shawn Patterson Call (D.Ex. C-4C) was cumulative

because it "was duplicated by information at trial. The jury listened to a tape recording

of the defendant's statement, and Vitello testified that the defendant showed very little

emotion when he gave it. Defense counsel argued that the defendant sounded flat and

exhausted." SB at 130. Once again, in other words, the state argues that Brady

material that strongly supported a defense theory is cumulative if the defense presented

pages 107-108 of his brief, the defendant stated: "Trial counsel . . . made the
inadequate police response a central focus of their summation. . . ." (Emphasis
added).
45
the theory. For the reasons stated supra and incorporated herein, the state's argument

misconstrues the definition of cumulative, immaterial evidence.

Furthermore, in the call, Patterson did not state, as Vitello stated, that the

defendant showed little emotion. Rather, he stated: "[t]hat kid is like, there is nobody

home, dude . . . That dude is fucking simple as they come." DE C (2/23/16) (CH1

0_09001 CCB_669). That statement strongly corroborated the defendant's contention

that he was disoriented and severely sleep-deprived when Hayes murdered the P.'s and

when he waived his Miranda rights and gave his police statements. The statement also

directly contradicted Vitello's testimony. At the suppression hearing, Vitello testified that

the defendant was in a normal mental state during the first interrogation, his demeanor

was "fine," he was not agitated or tired, and he was not emotional or distraught. Tr.

8/23/11 at 92-94. He testified that the defendant was "fine," "awake," and "alert" when

giving his second statement about the previous night's burglaries. Id. at 95. He

assured the court that the defendant had never seemed excessively tired and

understood his rights "fully." Id. at 115. At the trial, Vitello testified that the defendant

was "very much" coherent, and that he showed no emotion. Tr. 9/21/11 at 142; 9/26/11

at 41.43

43 The state also seems to suggest that this Court cannot determine the
materiality of the Patterson call. SB at 130. In fact, that is not the law. State v. Ortiz,
280 Conn. at 719–20 ("The defendant claims, without any expressed disagreement by
the state, that the determination of materiality is a question of law subject to plenary
review. We agree with the defendant. . . .") (and cases cited therein); Lapointe v.
Commissioner of Correction, 316 Conn. at 298; Mahaffy, 693 F.3d at 127 ("[w]hen
reviewing alleged Brady violations, we examine the record de novo to determine
whether the information in question is material as a matter of law."), citing United States
v. Madori, 419 F.3d 159, 169 (2d Cir. 2005). In any event, if this Court somehow
decides that the trial court misunderstood his mandate as precluding a materiality
determination (see Tr. 2/23/16 at 148), this Court must remand this case to the trial
court to make that determination.

46
 With regard to the Nastri call (D.Ex. C-4D), the state claims that Connecticut

State Trooper David Devito, not Nastri, made the pertinent statements, and that "the

defendant did not ask the trial court to make a finding as to who made the

statement. . . ." SB at 130-131. The defendant disagrees with the state's interpretation

of the evidence. In any event, even if Trooper Devito made the statements, and even if

he never saw Hayes in person and had no role in the investigation, he was a state

agent and his statements were party admissions that corroborated the defendant's

statement that Hayes was responsible for the murders. See DB at 116, 117.

The Patterson and Nastri/Devito calls were material.

The C.H.-R. Call. In his opening brief, the defendant demonstrated that: (1) the

trial court erroneously ruled that the defendant did not establish the authenticity of the

C.H.-R. call by a preponderance of the evidence; (2) the trial court erred as a matter of

law by requiring the defendant to prove the call's authenticity by the preponderance-of-

the-evidence standard; and (3) the trial court abused its discretion by sustaining the

prosecution's objection to defense counsel's question to W.R. concerning whether the

email his wife received describing the call "appeared" to him "to be a document that

could have been created by a non-police or like a layperson who was not involved in the

response." DB at 111-14. The state fails to refute this showing. SB at 131-39.

The defendant established the authenticity of the C.H.-R. call by a

preponderance of the evidence. The record establishes the following facts. C.H.-R.

told Vitello before the defendant's trial that she had received an email containing a

police call log in which one call reported that the Cheshire police observed Hayes and

J.P. return to the P. residence from the Bank of America. DB at 112 n.99. The

prosecution never disclosed this fact to trial counsel. The police call log in the email

C.H.-R. received resembled in all material respects the police call log created by

Michael J. Winters, the IT coordinator for the Cheshire Police Department. Id. Winters'
call log did not include other important calls relating to the inadequate police response

47
to the 911 call from the Bank of America. DB at 110. After Winters created the call log,

he gave it to Detective Sergeant Vignola, and did not look at it again for nine years. DB

at 105. Vignola had been the commander at the scene of the P. residence. Tr. 9/20/11

at 145. The C.H.-R. call44 is entirely consistent with and strongly supports the

improbability that neither Cote nor Nemphos nor Vignola arrived at the P. residence in
time to observe Hayes and J.P. returning there. The timeline is as follows:

 In a call beginning at 9:25:15 a.m., Cote was told that J.P. had just left the
bank in a Chrysler Pacifica, and Cote was within blocks of the bank. DB at
108.

 In a 20 second call beginning at 9:26:08 a.m., Nemphos reported he was

about a mile away from P. residence. DB at 104.

 In a call beginning at 9:27:52 a.m., Vignola reported that "We are heading
out." DB at 109.

 At 9:31:22 a.m., Hayes called the defendant from the Pacifica, having not yet
arrived back at the P. residence. DB at 104.45

The defendant established the authenticity of the C.H.-R. call by a

preponderance of the evidence.

The court committed reversible error by requiring the defendant to prove

the call's existence by a preponderance of the evidence. The state acknowledges

that "the prima facie standard applies to showing the evidence to be authentic to secure

44The state points out that "CHR acknowledged that upon opening an email, the
computer screen and a printed copy of the email would show the name of the person
who sent it" and "she never saw a name and does not know who sent the email." SB at
133. The state neglects to acknowledge the well-known fact that it is easy to send
anonymous emails. See, e.g., https://thebestvpn.com/anonymous-email/ (last visited
3/19/2019).
45 This timeline rebuts the State's assertion that "for the reasons set forth in the
argument in IV.C.2., the times in the produced and unproduced communications do not
establish that it is probable that those officers reached the house before Hayes and JHP
returned from the bank." SB at 136.
48
its admission, so as to permit the evidence to go to the jury 'which will ultimately

determine its authenticity.'" SB at 138, quoting State v. Carpenter, 275 Conn. 785, 856

(2005). But the state argues that "[h]ere, the evidence went to the fact-finder, the trial

court, for the ultimate factual determination of whether the defendant had shown, by a

preponderance of the evidence, that the call existed." SB at 138. See also SB at 137

n.41. Not so. The trial court's role was to determine whether the defendant had made a

prima facie case that the call existed and, if so, to determine whether there is a

reasonable probability that the jury would have found its existence by a preponderance

of the evidence. As the defendant has shown, the answer to both questions is yes. DB

at 111-113.

The state fails to refute the defendant's showing that the trial court erred by

sustaining the state's objection to the defendant’s question to W.R. whether the

email "appeared" to him "to be a document that could have been created by a

non-police or like a layperson who was not involved in the response." DB at 113-

14. The state argues: "WR's opinion that no lay person could have produced the email

would have required WR to know whether the time line produced by Winters could have

been altered by a person unknown and the defendant provided no foundation that WR

had that knowledge." SB at 139. The state distorts the issue. Defense counsel did not
ask W.R. whether the call log could have been altered; the question put to him was

whether it appeared to be a document that a non-police person could have created.

Had the trial court allowed the defense's perfectly appropriate question, the state could

have asked W.R. about possible alteration of the document on cross-examination.

This Court must reverse and grant the defendant a new trial because the state

suppressed favorable and material police calls.46 By failing to disclose the calls, the

46The state argues that "[w]hen the evidence is considered cumulatively, the
defendant has not proven a Brady violation." SB at 131. The state fails to conduct any
analysis to support its contention, and thus, the assertion is inadequately briefed.

49
state corrupted the truth-seeking function of the trial, and violated the defendant's rights

under Brady v. Maryland, 373 U.S. 83, and its progeny. DB at 87-101. Alternatively,

this Court must remand the case and direct the trial court to consider W.R's response

("Absolutely not") and/or to determine the materiality of the Patterson Call (DE C

(2/23/16)) and the Nastri/Devito call (DE C 2/23/16)).

V. The State Corrupted the Truth-Seeking Function of the Trial Forum by

Presenting False and/or Highly Misleading Evidence and Argument, and the
Defendant Was Prejudiced as a Result.
The defendant demonstrated in his opening brief that: (i) the state presented
testimony and argument at the defendant's trial that it knew or should have known was

false or substantially misleading; and (ii) the impropriety deprived him of a fair trial

because it substantially undermined the credibility of his statement to the police and

inflamed the passions and prejudices of the jury. DB at 117-121.

The state makes four arguments in its defense: "evidence from the Hayes trial

should not have been made part of the record in this case; [the defendant] has failed to

establish the necessary factual predicate of falsity; the defendant was aware of the

inconsistent evidence and elected not to use it; and there is no reasonable possibility

that any falsity affected the outcome of the trial." SB at 139. None has any merit.

This Court should not revisit its decision to make the evidence a part of the
defendant's record. The state asks this Court to revisit its denial of the state's motion

for review in which it challenged the trial court's decision to grant the defendant's Motion

for Augmentation and Rectification of the Record Re: Testimony and Exhibits seeking to

augment the record in the following manner: (1) to include the testimony of the state's

computer crime investigator, John Farnham, from State v. Steven Hayes, Docket No.

NNH-CR07-0241859 (Superior Court); and (2) to include defendant's Exhibit X for

identification from State v. Hayes, (hereinafter "Hayes Ex. X, ID"), the unredacted
photograph of a redacted photograph included in State's Exhibit 209 at the defendant's

50
trial. SB at 147-49. However, the state offers no argument to suggest this Court's

"earlier decision was ill considered, and that further articulation is necessary for the just

determination of the appeal." (Citations omitted.) McClintock v. Rivard, 219 Conn. 417,

425 (1991) (finding no reason to reconsider earlier decision). First, the state repeats the

failed argument it made in its Motion for Review that a motion for augmentation of the

record can only be granted under State v. Floyd when the evidence that the party seeks

to add was "unascertainable at trial." Cf. SB at 147-148 with State's Motion for Review

of Trial Court Granting of Defendant's Motion for Augmentation and Rectification of the

Record Re: Testimony and Exhibits (hereinafter, "State’s Motion for Review") (March 4,

2016) at 8 (making same argument). Second, the state repeats its argument that "the

defendant failed to meet his burden to establish a prima facie case of a violation – that

is, the testimony of any witness was false or substantially misleading." Cf. SB at 149-15

with State's Motion for Review at 9 (making same argument). In response to these

reproduced arguments, and in the interest of brevity, the defendant directs this Court to

his Opposition to State's Motion for Review of Trial Court Granting Defendant's Motion

for Augmentation and Rectification of the Record Re: Testimony and Exhibits

(hereinafter "Defendant’s Opposition") (April 4, 2016) (attached hereto as Attachment

A1) at 3-7.47
The defendant has established more than the necessary factual predicate

of false or substantially misleading testimony. In its brief, the state argues that the

defendant has failed to show the testimony was false or substantially misleading,

claiming that "the defendant has presented only testimony about inconsistent opinions

47 The state concedes, as it did in its Motion for Review, that this Court can take
judicial notice of the Hayes proceedings. SB at 150 n.44. But the state argues:
"Because the Hayes materials are pertinent only if they are true and the testimony in the
defendant's trial is false, taking judicial notice of them serves no purpose." Id. In fact,
judicial notice would serve precisely the same purpose as making the evidence a part of
the record – to provide an evidentiary basis for the defendant's Napue claim.

51
of witnesses." SB at 149-151 & n.44. First, even if this Court somehow construes this

testimony as opinion, the presentation of false or substantially misleading opinion

testimony can violate Napue. See Miller v. Pate, 386 U.S. 1 (1967) (state's presentation

of knowingly false expert opinion testimony that material on shorts was blood violated

Napue).48

Second, John Farnham made directly contradictory factual assertions in his

testimony in Hayes and at the defendant's trial. In Hayes, he stated that the sixth

photograph on the defendant's cell phone showed "a different female, apparently older"

than the first five photographs. Tr. 9/23/10 at 48. At the defendant's trial, Farnham

testified that all six images "showed a young white female," not two different young

white females. Tr. 9/28/11 at 45-46. Furthermore, like Farnham's testimony, John

Brunetti's and Dr. Carver's testimonies at the defendant's trial were factual, not opinion.

The state introduced the six photographs through Brunetti's testimony, and he asserted

that they all showed "the same person." Tr. 9/28/11 at 66-67; A1476-7. Brunetti placed

a black bar over the genitalia of the female in the sixth photograph, purportedly out of

"discretion" (id. at 69, A1479; SE 209), and the state presented the testimony of Dr.

Carver, who asserted that "I know [M.P.'s] age was 11 years and the body looked like

48 None of the cases cited by the state support its argument that opinion
testimony can never result in a Napue violation, nor do any of those cases involve a
situation where the state elicited testimony to create a substantially misleading
impression that favored the state. See SB at 149, citing Flippo v. McBride, 393
Fed.Appx. 93, 98, 2010 WL 3452415, at *5 (4th Cir.2010) (Napue does not prohibit "a
battle of the experts"); United States v. Stadtmauer, 620 F.3d 238, 268–69 (3th Cir.
2010) (no Napue violation when record does not support argument that the government
knew or should have known of the purported falsehood); Lamarca v. State, 931 So. 2d
838, 852 (Fla. 2006) (the word "opinion" does not appear in this decision); United States
v. Michael, 17 F.3d 1383, 1385 (11th Cir. 1994) ("The fact that Agent Johnson's
testimony regarding Michael's participation at the IHOP was contrary to Agent Dyer's
testimony at the pretrial detention hearing does not amount to a showing that the
government knowingly presented false testimony. . . . It is undisputed that Michael was
present at the IHOP parking lot during the negotiations.").

52
it," and that "I don't think she had much more than head hair. . . ." Tr. 9/28/11 at 85, 101;

A1480, 1481. The unredacted photograph introduced by Hayes' counsel, Exhibit X for

ID, clearly depicts pubic hair. The state's opinion-testimony argument fails.

Contrary to the state's claims (SB at 150, 154), the defendant is not asking this

Court to decide: (i) whether Farnham's testimony at Hayes' trial or the defendant's trial

was true or false; (ii) whether Brunetti's or Carver's testimony at the defendant's trial

was true or false; or (iii) whether trial counsel was ineffective for failing to object.49

Rather, the defendant's argument is as follows: the state improperly sent a clear

message to the jury that the defendant took the highly inflammatory sixth photograph

and it was of M.P., who had nothing more than head hair and who looked her 11 years

of age, not 14 to 16 as the defendant stated in his police statement. See DB at 121.

DE A (2/23/16) and DE B (2/23/16) demonstrate that this message was, one way or

another, false, or at the very least extremely misleading and, thus, a due process

violation under Napue. Either, as is most likely, the sixth photograph was of M.P. and

she easily could have been 14 to 16 years old and had pubic hair contrary to Carver's

testimony, or the sixth photograph was not of M.P. contrary to the testimonies of

Brunetti and Farnham at the defendant's trial.

Furthermore, the state's argument that the defendant's claim must be rejected
because a court cannot "decide which testimony in the two trials was true" is incorrect.

SB at 150. The state takes the untenable position that it can have its witnesses testify

to directly contradictory facts and opinions at different trials because a court cannot

49As it did in its Motion for Review (at 9-10), the state maintains that this claim
should be made in "collateral proceedings" because there may have been strategic
reasons for defense counsel not to object. SB at 154. As stated above, the defendant's
argument is not that trial counsel was deficient for failing to object, but that the state
presented false and substantially misleading testimony that it knew or should have
known was false or highly misleading.
53
determine which testimony at which trial was correct. Napue and its progeny are to the

contrary.

The state puts undue reliance on the jury's ability to ferret out the truth regarding

the evidence. See, e.g., SB at 151, 157. For example, the state argues that "Brunetti

testified about the basis of his conclusions, and the jury could evaluate the testimony

themselves." Id. at 151. The state seems to forget that the jury did not know that the

sixth photograph revealed pubic hair and that Farnham testified at Hayes' trial in direct

contradiction of his testimony at the defendant's trial that the female depicted in the sixth

photograph was a different female from the female depicted in the other photographs.

Defense counsel's actual and constructive knowledge of the falsity is

irrelevant, particularly here where the prosecution exacerbated and exploited it.

The state argues that whether the testimonies of Farnham, Brunetti and Carver were

false or substantially misleading is irrelevant because trial counsel knew or should have

known about the contradictory evidence introduced at Hayes' trial. SB at 151-54. As

stated in the Defendant's Opposition, the state is conflating Brady's non-disclosure

requirement with Napue's false or substantially misleading requirement. Opposition at

5-6. "The evil which concerned the Court" in Napue was not failure to disclose, but "the

misconduct of the prosecuting authorities in failing to reveal known evidence to the jury."
Mastrian v. McManus, 554 F.2d 813, 823 (8th 1977). Thus, even if defense counsel

knew or should have known that the testimony was false or substantially misleading,

"the government's duty to correct perjury by its witnesses is not discharged merely

because defense counsel knows, and the jury may figure out, that the testimony is

false." United States v. LePage, 231 F.3d 488, 491-492 (9th Cir. 2000) (Kleinfeld, J.).50

Judge Kleinfeld cogently summarized the policy behind this rule:

50 See also United States v. Foster, 874 F.2d 491, 495 (8th Cir. 1988) ("[t]he fact
that defense counsel was also aware of [evidence showing testimony to be false or
misleading] but failed to correct the prosecutor's misrepresentation is of no
54
 All perjury pollutes a trial, making it hard for jurors to see the truth. No lawyer,
whether prosecutor 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 advocacy and frequently
listens to defense counsel with skepticism. A prosecutor has a special duty
commensurate with a prosecutor's unique power, to assure that defendants receive
fair trials. "It is as much his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate method to bring about
one."

(Citations omitted.) United States v. LePage, supra, 231 F.3d at 492.

consequence."); United States v. Mason, 293 F.3d 826, 829 (5th Cir. 2002) ("[D]efense
counsel's failure to avail himself of the policy making the plea agreement available does
not relieve the government of its affirmative responsibility to correct false testimony.");
United States v. Bigeleisen, 625 F .2d 203, 208 (8th Cir. 1980) ("The duty to correct
false testimony is on the prosecutor, and that duty arises when the false evidence
appears."); United States v. Sanfilippo, 564 F .2d 176, 178-79 (5th Cir. 1977); Sivak v.
Hardison, 658 F.3d 898, 909 (9th Cir. 2011) ("it is 'irrelevant' whether the defense knew
about the false testimony and failed to object or cross-examine the witness."); Shih Wei
Su v. Filion, 335 F.3d 119, 127 (2d Cir. 2003) ("Having agreed with the district court that
the prosecution failed in its duty to avoid eliciting false testimony, we are left to decide
whether this breach injured the defendant in the relevant way. 'A new trial is required if
the false testimony could in any reasonable likelihood have affected the judgment of the
jury.' Giglio v. United States, 405 U.S. [150, 154 (1972)] (quotation marks and
alterations omitted). As far as the Supreme Court cases are concerned, this is all that is
required."); United States v. Valentine, 820 F.2d 565, 571 (2d Cir. 1987) ("Here,
Valentine's counsel apparently had no knowledge that the prosecutor was
misrepresenting the grand jury testimony of at least two of the nonwitness brokers, and
some knowledge of the misrepresentations as to two others. While Valentine failed to
take advantage of his access to these brokers, this failure does not allow the prosecutor
to make misrepresentations."); State v. Yates, 629 A.2d 807 (N.H. 1993); State v.
Brunette, 501 A.2d 419, 423-24 (Me.1985) ("That the prosecution did not solicit the false
testimony and immediately and fully informed both the defense counsel and the
presiding justice does not change our analysis" that the defendant's due process rights
were violated by the state's knowing failure to correct false testimony); Crutcher v.
State, 481 S.W.2d 113,115-16 (Tex.Crim.App. 1972) (citing Means v. State, 429 S.W.2d
490, 494 (Tex.Crim.App. 1968)) (defense counsel's knowledge irrelevant); In re
Sakarias, 106 P.3d 931, 947 (Cal. 2005) (prosecutor's presentation of false evidence
and argument violated due process even though the information had been "disclosed to
the defense" at trial.).

55
 In addition, as the state concedes, defense counsel's knowledge of the falsity is

irrelevant even under the cases it cites when "the prosecutor exacerbates or exploits

false or misleading testimony, typically by muddying the waters on redirect examination,

or by using the evidence to the state's favor in closing argument." SB at 153, citing

Gaskin v. Commissioner, 183 Conn. App. 496, 546-54 (2018); Jenkins v. Artuz, 294

F.3d 284, 291-94 (2d Cir. 2002). See also Mills v. Scully, 826 F.2d 1192, 1195 (2d Cir.

1987) (due process is violated where prosecutor presents false evidence even though

defense counsel knows of the falsity where "prosecutor reinforces the deception by

capitalizing on it in closing argument or by posing misleading questions to the

witnesses."); United States v. Stein, 846 F.3d 1135, 1147 (11th Cir. 2017).

Here, as the defendant explained in his opening brief, "the state reinforced the

deceptions by posing misleading questions to its witnesses, and capitalized on them in

closing argument. . . ." DB at 121, citing Tr. 9/28/11 at 66-67, 46, 85; 10/11/11 at 26-27,

122. Thus, in addition to posing misleading questions to the witnesses (see DB at 121),

the prosecutor stated in closing:

This defendant invaded the sanctity of the Petit home, he participated in stealing their
personal possessions, he stole the family car and destroyed it. He stole the youthful
sexual innocence of [M.P.], and kept some of his prized trophies of her in those
cell phone pictures that he took of her.
(Emphasis added.) Tr. 10/11/11 at 26-27.
And then at 7:05, Hayes goes to the Citgo station, and what's Mr. Komisarjevsky
doing? He is back at home, taking photographs of [M.P.]. Komisarjevsky is
exploring every -- exploiting every opportunity to satisfy himself, his narcissistic self
while Hayes was out - was away. Getting Hayes out of the house was part of the
plan with respect to this. Consider whether the plan was not just about money, but,
as Mr. Nicholson indicated, look at the sexual component and the defendant's first
observations at Stop & Shop. Komisarjevsky is at home base, that's his home base,
300 Sorghum Mill Drive, and he is running the show as Hayes goes off and does his
bidding, and while he's at home, he is satisfying his own sexual desires.

56
(Emphasis added.) Tr. 10/11/11 at 122.51

In short, defense counsel's actual and constructive knowledge of the falsity is

irrelevant, particularly under the facts of this case.

There is clearly a reasonable possibility that the falsity affected the

outcome of the trial. In his brief, the defendant demonstrated that there is more than a

reasonable likelihood that the false and/or substantially misleading testimony by

Farnham, Brunetti and/or Carver at the defendant's trial affected the jury's verdict. The

state's false and/or substantially misleading testimony substantially undercut the

credibility of the defendant's statement to the police, both specifically with respect to his

assertions that he did not anally rape M.P. and that he believed her to be 14 to 16 years

old, and more generally with respect to his assertions that he did not intend that anyone

be killed and that he did not pour any gasoline at the scene. In addition, although the

sixth photograph would have been disturbing under any circumstances, it was made

exponentially more inflammatory by the state's claim that it was of an 11-year-old child,

thereby inflaming the passions and prejudices of the jury. DB at 121-122.

The state offers a grab bag of different reasons purportedly proving there is no

reasonable likelihood the falsehoods affected the jury's verdict. SB at 154-157. None is

persuasive. First, the state argues again that "the evidence against the defendant was

overwhelming." SB at 155-6. As explained supra and incorporated herein by reference,

the evidence suggesting the defendant's intent to kill was by no means overwhelming.52

51 The state makes its familiar refrain that the defendant inadequately briefed this
issue because, although he cited the relevant pages of the transcript in which the
prosecution utilized its false or substantially misleading testimony, the defendant did not
precisely detail "the offending language" from the transcript. SB at 153-154, citing State
v. T.R.D., supra, 286 Conn, at 214 n.18. The offending language in those pages was
more than obvious, and the state cites no authority supporting its claim. Additionally,
the defendant would point out that he complied with this Court's order directing him to
file a brief no longer than 125 pages. The state's brief, in contrast, was 159 pages.
52
In addition, the evidence of anal rape cannot fairly be characterized as
"overwhelming."
57
 Second, the state argues that "[e]vidence permitting the jury to infer that the

defendant took highly sexualized photos of HP in addition to MP would have been

extremely prejudicial to the defendant and undercut the credibility of his statement." SB

at 156. As an initial matter, the state fails to adequately brief how such evidence would

have undercut his statement. Moreover, the state's argument misses the point. Either,

as is most likely, the sixth photograph was of M.P. and she could have been 14 to 16

years old and had pubic hair contrary to Carver's testimony at the defendant's trial and

consistent with the defendant's statement, or the sixth photograph was not of M.P.,

contrary to the testimonies of Brunetti and Barnham at the defendant's trial, which would

have substantially undercut their credibility. Sivak v. Hardison, 658 F.3d 898, 916 (9th

Cir. 2011) ("[I]f a witness' false testimony is corrected by the prosecution, his

'willingness to lie under oath' is exposed and his credibility is irreparably damaged.");

United States v. Sanfilippo, 564 F .2d 176, 178 (5th Cir. 1977) ("A jury may very well

give great weight to a precise reason to doubt credibility when the witness has been

shown to be the kind of person who might perjure himself.").

Third, the state points out that the prosecution argued that the defendant's

statement that he believed M.P. was 14-16 years of age was not credible on the

grounds that the defendant stated that he had talked to M.P. about school and summer
plans, not because she had reached puberty. SB at 156.53 However, the state cites no

cases holding that a claim of prejudice under Napue is dependent upon the prosecution

arguing the false or substantially evidence. The contention is inadequately briefed and

wrong on the merits. Napue has no such requirement.

53 The state also contends that evidence that M.P. had reached puberty "would
have also permitted the jury to infer that [the defendant] had determined that sexual
conduct was permissible because he had undressed her to examine her genitalia and
reach conclusions about her age." SB at 156. In fact, in his statement, the defendant
freely admits that he reached conclusions about M.P.'s age and that he undressed her.
Tr. 9/21/11 at 185; 9/22/11 at 15.
58
 Fourth, the state maintains that Carver, Brunetti and Farnham were not "key

witnesses." SB at 156. Certainly, they were key witnesses with regard to the question

of whether M.P. had reached puberty. They were also key witnesses with regard to

whether M.P. was the female shown in the sixth photograph on the defendant's phone

which depicted an unclothed female on her back, with her legs raised at close to a 90-

degree angle, displaying her genitalia and her anus.

Fifth, the state argues: "[h]ad the state directed attention to the apparent sexual

maturity of the person depicted in the sixth photo and the possibility that it was of HP,

not MP, this would have enhanced the extortionate purpose of his taking the photos."

SB at 157. However, the state fails to adequately brief why a photo of an unclothed

H.P. as opposed to M.P. would have enhanced the extortionate purpose of the photos,

and undersigned counsel can think of no reason why that would be so.

Sixth, the state argues that the jury could "look at the patterns in the described

skirt and sheet" in the sixth photograph "and reach their own conclusions." SB at 157.

Again, however, the state forgets that the jury did not see the pubic hair in the sixth

photo.

Seventh, the state again argues that defense counsel had actual or constructive

knowledge of the falsity of the prosecution's evidence and could have introduced the
unredacted sixth photo. SB at 157. As stated supra and incorporated herein, however,

defense counsel's knowledge is irrelevant, particularly in this case where the

prosecution exacerbated and exploited its false or substantially misleading evidence.

Eighth, the state claims that "the jury determination of whether the defendant

truthfully denied that he killed or intended that anyone be killed depended on the jury's

evaluation and drawing of inferences from a wide variety of evidence proffered at a

multi-week trial, and this 'false' evidence of MP's sexual immaturity could have had

minimal effect on that evaluation." SB at 157. Again, however, the state inadequately
briefs this claim. The state offers no citations to the record or even description of the

59
"wide variety of evidence" relating to the defendant's intent. In any event, the

defendant's statement denying any such intent was a critical piece of evidence, and,

again, either, as is most likely, the sixth photograph was of M.P. and she easily could

have been 14 to 16 years old and had pubic hair contrary to Carver's testimony, or the

sixth photograph was not of M.P., contrary to the testimonies of Brunetti and Barnham

at the defendant's trial, which would have seriously undermined their credibility.

The defendant is entitled to a new trial.

VI. Conn. Gen. Stat. § 18-10b Cannot Be Applied to the Defendant.

The defendant recognizes this Court's decision in State v. Campbell, supra, 328

Conn. at 461.

CONCLUSION

Wherefore, based on the facts and arguments contained herein, the defendant is

entitled to a new trial or such other relief as this Court deems appropriate.

RESPECTFULLY SUBMITTED,
THE DEFENDANT

BY: /s/ Erica A. Barber__________

Erica A. Barber
Juris No. 436725
FROST BUSSERT LLC
129 Church Street, Suite 226
New Haven, CT 06510
Tel: (203) 495-9790
Fax: (203) 495-9795
eab@frostbussert.com

/s/ John Holdridge_________

John Holdridge
Juris No. 308738
Attorney at Law
PO Box 844
Athens, GA 30603-0844
Tel: (706) 850-0684
holdridgejohn@gmail.com

60
 CERTIFICATION

This is to certify that on June 5, 2019, the defendant-appellant's reply brief has

been delivered electronically to opposing counsel, Marjorie Allen Dauster, Senior Asst.

State's Attorney, Juris No. 402418, Office of the Chief State's Attorney, Appellate

Bureau, 300 Corporate Place, Rocky Hill, CT 06067, tel. (860) 258-5807, fax (860) 258-

5828, email: Marjorie.Dauster@ctgov; dcj.ocsa.appellate@ct.gov; and a copy of the

defendant-appellant's reply brief was mailed via first class mail, postage prepaid to

Honorable Jon C. Blue, c/o Clerk's Office, Superior Court, New Haven J.D., 235 Church

Street, New Haven, CT 06510, and the defendant, Joshua Komisarjevsky. This is also

to certify that the defendant-appellant’s reply brief complies with all the provisions of

Practice Book § 67-2; that the reply brief filed with the clerk is a true copy of the brief

submitted electronically; and that it has been redacted and does not contain any names

or other personal identifying information that is prohibited from disclosure by rule,

statute, court order or case law.

/S/ Erica A. Barber, Juris No. 436725

Erica A. Barber