Justia.com Opinion Summary: Petitioners, George Gould and Ronald Taylor, were arrested and charged with, inter alia, murder, felony murder, and robbery in the first degree. The jury acquitted Petitioners of the murder charge but convicted them on all of the other counts. Subsequently, Petitioners filed petitions for writs of habeas corpus, alleging ineffective assistance of counsel and actual innocence. The habeas court granted the petitions and vacated the convictions, concluding that petitioners had established their entitlement to relief on the basis of actual innocence because two of the state's witnesses had recanted their testimony. Respondent, the commissioner of correction, appealed. The Supreme Court reversed the habeas court's judgments, holding that, under the test set forth in Miller v. Commissioner of Correction, actual innocence requires affirmative evidence that Petitioners did not commit the crimes of which they were convicted, not simply the discrediting of evidence on which the conviction rested. Remanded for a new trial under the proper standard.
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GEORGE M. GOULD v. COMMISSIONER
OF CORRECTION
(SC 18732)
RONALD TAYLOR v. COMMISSIONER
OF CORRECTION
(SC 18733)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Eveleigh and
Vertefeuille, Js.
Argued February 11—officially released July 19, 2011
Michael E. O’Hare, supervisory assistant state’s attorney, with whom, on the brief, were Michael Dearington,
state’s attorney, John Waddock, senior assistant state’s
attorney, and James G. Clark, former senior assistant
state’s attorney, for the appellant (respondent in both
cases).
Joseph Visone and Peter Tsimbidaros, for the appellees (petitioner in each case).
Opinion
EVELEIGH, J. In Summerville v. Warden, 229 Conn.
397, 421, 641 A.2d 1356 (1994), this court held that a
petitioner may seek a new trial pursuant to a writ of
habeas corpus on the basis of a substantial claim of
actual innocence unaccompanied by an antecedent
showing of a constitutional violation that affected the
fairness of the petitioner’s criminal trial.1 The necessity
for delineating the requisite proof to prevail on such a
‘‘freestanding’’ claim of actual innocence did not arise,
however, until this court’s decision in Miller v. Commissioner of Correction, 242 Conn. 745, 700 A.2d 1108
(1997). The present case requires us to elaborate on
the meaning of ‘‘actual innocence’’ under the test set
forth in Miller v. Commissioner of Correction, supra,
791–92 (Miller test). Specifically, we must address
whether credible recantations of testimony that was
the sole evidence of guilt can constitute clear and convincing evidence of actual innocence, as required under
that test.
The respondent, the commissioner of correction,
appeals2 from the judgments of the habeas court granting the petitions for writs of habeas corpus filed by the
petitioners, George M. Gould and Ronald Taylor.3 The
respondent’s dispositive claim is that the habeas court
applied an improper standard when it granted habeas
relief on the basis of recantations by two of the state’s
witnesses. We conclude that the trial court improperly
failed to recognize that, under the Miller test, actual
innocence requires affirmative evidence that the petitioners did not commit the crimes of which they were
convicted, not simply the discrediting of evidence on
which the conviction rested. Accordingly, the habeas
court’s judgments granting the petitions must be
reversed and the cases must be remanded for a new
trial under the proper standard.
The record reveals the following undisputed facts
and procedural history. On July 4, 1993, at 5:08 a.m.,
Eugenio Vega, the owner of La Casa Green, a retail
store on Grand Avenue in the Fair Haven section of
New Haven, entered the store and deactivated its alarm
system. At 5:42 a.m., the police received a 911 call alerting them to suspicious activity at the store from Mary
Boyd, a regular customer who became concerned when
she could not locate Vega inside or outside of the open
store. At 6:05 a.m., two officers from the New Haven
police department arrived at the store. Upon entering
and searching the premises, the officers went to the
back of the store where they noticed an open safe and
a wallet, lying in plain view, which contained no cash.
Officer Keith Wortz opened the door to a nearby walkin freezer and found Vega inside, slumped over in a
semi seated position with his hands bound in front of
him with an electrical extension cord. Vega had been
fatally shot at close range by a single gunshot to his
left temple.
In the following days, the police canvassed the neighborhood and obtained interviews from several people
who had either seen Vega or been in the vicinity of
the store between 5 and 6 a.m. on the morning of the
shooting. The petitioners were among those who eventually were interviewed. In the course of those interviews, they admitted that they had gone out together
to raise money to buy drugs in the vicinity of La Casa
Green, first at 11:30 p.m. on July 3, 1993, and later at
approximately 3 a.m. on July 4, 1993.4
On July 29, 1993, the police obtained information
connecting the petitioners to Vega’s shooting. On that
date, the police arrested Doreen Stiles in a prostitution
sweep of the Fair Haven area. Because Stiles regularly
worked in that area, the police questioned her about
the shooting. After several hours of questioning, Stiles
stated that she had been outside of the store, had heard
someone threaten Vega and had seen two men, later
identified as the petitioners, leave the store. The police
reinterviewed Pam Youmans, who had been in the store
with Vega just after he had opened it. Youmans then
stated for the first time that she had seen a woman,
later identified as Stiles, outside of La Casa Green that
morning. The police also reinterviewed Boyd, who
stated that, on the morning of the murder, she had seen
two dark skinned men in the store, one shorter than
the other, when looking from the outside of the store
inside through the front window.5
The petitioners were arrested and charged with murder in violation of General Statutes § 53a-54a (a), felony
murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes
§§ 53a-134 (a) (2) and 53a-8, criminal attempt to commit
robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2), 53a-8 and 53a-49, and conspiracy
to commit robbery in the first degree in violation of
General Statutes §§ 53a-48 (a) and 53a-134 (a) (2). At
a joint trial before a jury, the state’s theory was that
the petitioners had robbed and killed Vega as part of
a night long spree to obtain more drugs. The state’s key
witness was Stiles, who presented the only evidence
directly connecting the petitioners to the crimes. Boyd
and Youmans also testified about their observations,
consistent with their latest statements to the police. In
support of the robbery related charges, Susana Negron,
Vega’s daughter and the store’s bookkeeper, testified
that she had not made her usual weekly bank deposit
for the store’s cash receipts the week before her father
was shot and that, several months earlier, she had seen
jewelry, cash and coins in the safe. The petitioners did
not testify. In their defense, they attempted to discredit
Stiles, to call into question whether a robbery had
occurred and to underscore the absence of any physical
evidence linking them to the crimes.
The jury acquitted the petitioners of the murder
charge but convicted them on all of the other counts.
The trial court, Fracasse, J., thereafter sentenced each
petitioner to a total effective sentence of eighty years
imprisonment. The petitioners directly appealed to this
court, which affirmed the judgment, with the exception
of Taylor’s conviction of attempt to commit robbery in
the first degree.6 State v. Gould, 241 Conn. 1, 695 A.2d
1022 (1997).
In October, 2003, the petitioners filed petitions for
writs of habeas corpus. Following continuances to, inter
alia, obtain DNA testing of the cord used to tie Vega’s
hands, in May, 2009, the petitioners filed the amended
petitions at issue in the present appeals. In those petitions, they sought relief on the grounds of ineffective
assistance of counsel and actual innocence.7 The thrust
of the allegations in support of these claims was: (1)
there was evidence that was not produced at their criminal trial that would have cast doubt on whether a robbery actually had occurred, as well as evidence pointing
to a motive and means for Vega’s son, Carlos DeLeon
Vega (DeLeon), to have committed the murder; (2) the
DNA test exonerated the petitioners; and (3) both Stiles
and Boyd had recanted their testimony.
The habeas court, Fuger, J., rejected the ineffective
assistance of counsel claim, but agreed with the petitioners that the evidence demonstrated their actual
innocence. The court began its memorandum of decision with a discussion of the legal requirements for a
claim of actual innocence. It concluded that it was
bound by Appellate Court case law holding that the
petition must be predicated on newly discovered evidence, but found that the recantations by Stiles and
Boyd met this requirement.8 It noted that the appellate
courts had not yet addressed an actual innocence claim
based ‘‘almost entirely, if not solely, on a recantation.’’
The habeas court acknowledged that, although courts
must view recantation evidence skeptically, such skepticism does not operate as a bar to relief when the
recantation is found to be credible. In reaching that
conclusion, the court relied on case law addressing
petitions for a new trial. The habeas court nonetheless
recognized that this court, in Miller, had determined
that a more exacting standard must be applied to habeas
claims of actual innocence, namely, proof that ‘‘no reasonable fact finder, considering all of the evidence in
the same way that the habeas court considered it, and
drawing the same inferences that the habeas court
drew, would find the petitioner guilty of the crime of
which he stands convicted.’’ Miller v. Commissioner
of Correction, supra, 242 Conn. 800.
With these requirements in mind, the habeas court
turned to the evidence in the case before it. The court
began by noting its agreement with the prosecutor’s
statement to the jury in closing argument in the petition-
ers’ joint criminal trial: ‘‘ ‘[T]his case rises and falls
on the testimony of . . . Stiles.’ ’’ Because Stiles had
disavowed her criminal trial testimony at the habeas
trial, the habeas court determined that Stiles had committed perjury at one of those trials. The court noted
that, because Stiles’ criminal trial testimony had been
presented by way of videotape,9 it was able to view that
testimony in the same manner that the jury had, placing
the court in a unique position to determine which testimony was more credible. Ultimately, it determined that
Stiles’ testimony at the habeas trial was more credible,
and it reached a similar conclusion with respect to
Boyd’s less significant recantation.10
The habeas court first set forth the following account
of the events of July, 4, 1993, that Stiles originally had
offered at the criminal trial. Stiles left her home at
approximately 4 a.m. and arrived at the intersection of
Grand Avenue and Ferry Street at approximately 4:35
a.m. Fifteen minutes later, after walking down Grand
Avenue toward La Casa Green, she was one block away
from the store when she saw a menacing looking black
male walking toward the store. Because the man’s
demeanor frightened her, Stiles walked as quickly as
she could to an alley at the side of the store and hid
there, close to the building. Stiles heard arguing coming
from three distinct voices in the store, one of which
she recognized as Vega’s. Although many of the words
were muffled, she distinctly heard two angry voices
saying something about money and opening the safe,
and Vega’s screaming response in Spanish. After a couple of minutes, she heard a single gunshot. Stiles initially
froze out of fear, but then left the alley as quickly as
she could. She saw two black men exit the store, look
around, cross the street and head back in the direction
from which the menacing looking man had come.
Although the men did not see Stiles, they glanced in
her general direction, allowing her to see their faces
for one or two seconds. Stiles had identified the man
she first saw outside the store as Gould, and the other
man leaving the store with him as Taylor.
The habeas court then contrasted Stiles’ criminal trial
testimony with the following account that she had
offered in her habeas testimony. At approximately 4:30
a.m. on July 4, Stiles arrived at the Dunkin’ Donuts on
the corner of Ferry Street and Grand Avenue to get
some coffee before walking the streets to solicit money
for sex to support her heroin habit. Stiles finished her
coffee, walked up Ferry Street to Chatham Street, and
solicited money for sex from one client at approximately 5 a.m. Thereafter, Stiles walked up and down
Ferry Street looking for other clients. Stiles admitted
that, contrary to her criminal trial testimony, she never
had been in the vicinity of La Casa Green on the morning
of July 4, 1993.
The habeas court noted the following factors that
demonstrated the credibility of Stiles’ account at the
habeas trial. Although the statute of limitations to prosecute Stiles for perjuring herself at the criminal trial had
passed, she had exposed herself to the risk of prosecution if she had perjured herself at the habeas trial. In
terms of demeanor, Stiles had appeared drawn, haggard
and hostile during her criminal trial testimony, whereas
she appeared healthy and nonevasive at the habeas trial.
In addition, the time lines provided by Stiles and Boyd
in their original testimony were inconsistent with Stiles’
testimony that she had seen the petitioners flee the
crime scene. The time line offered in the criminal trial
would have had Stiles arrive at La Casa Green before
Vega even had deactivated the alarm, and a different
time line that Stiles had provided at the probable cause
hearing would have had her arrive while Boyd was
coming in and out of the store looking for Vega, even
though Boyd never had seen Stiles there.
The habeas court also considered the following explanation offered by Stiles as to why she had lied at the
criminal trial. After the police arrested Stiles on July
29, 1993, they pressed her to tell them what she knew
about the shooting. Stiles repeatedly denied having any
knowledge but, several hours later, after feeling ‘‘dopesick’’ and wanting to go home, she felt pressured to tell
the police what she thought they wanted to hear. Stiles
picked up on what she perceived as nonverbal clues
by the interrogating officers as to correct answers,
picked the petitioners’ photographs from a photographic array and eventually gave a statement inculpating the petitioners. During the interview, one of the
officers promised to help her get some heroin if she
helped them. After she did so, they gave her $60 and
drove her to a location where she used that money to
purchase heroin. On the night before the probable cause
hearing, some New Haven police officers put her up in
a hotel and helped her obtain more heroin. The habeas
court noted that the testimony of several New Haven
police detectives had confirmed much of Stiles’
account, except they had denied providing money to
Stiles for drugs. Ultimately, the habeas court concluded
that Stiles had lied because, at the time of the criminal
trial, she was a deeply troubled woman supporting a ten
bag a day heroin addiction by engaging in prostitution.
Finally, the habeas court identified the following
weaknesses in the state’s case. First, there were facts
that raised questions regarding the robbery motive for
Vega’s killing: the perpetrator had not taken money
from obvious sources, namely, a cash register keyed
open and a large wad of dollar bills in Vega’s front
pocket; the evidence was ‘‘sketchy at best’’ that any
jewelry had been in the safe; and there was no sign of
any struggle.11 Second, there was no physical evidence
linking the petitioners to the crime, and no gun or
money had been found in the petitioners’ possession.
Third, the petitioners presented credible evidence that
‘‘seemingly implicates [Vega’s] son [DeLeon] as a possible perpetrator of this crime.’’ That evidence suggested
that DeLeon could have had a motive to commit the
crime—he may have embezzled money from his
father—and the means to commit it—he was the record
owner of a gun that was capable of producing the marks
found on the projectile recovered at the crime scene,
although that gun never was located for testing. The
habeas court also noted, however, that there was no
physical evidence linking DeLeon to the scene. Indeed,
the DNA tests on the sample of the cord used to tie
Vega’s hands ‘‘exonerated’’ both DeLeon and the petitioners.12
Ultimately, the habeas court concluded: ‘‘[T]he evidence of a murder having taken place is clear. What is
not proven is that it was [the petitioners] who committed this crime. There was no fingerprint evidence, there
was no murder weapon recovered, there were no ‘fruits
of the crime’ recovered and there was no DNA evidence
at the crime scene that in any way linked the petitioners
to this crime. . . . [Stiles’] statement is the keystone
of the evidence upon which these convictions rest.
‘‘Moreover, upon closer examination of the criminal
trial testimony of [Stiles and Boyd], now considered in
the light of the recanted testimonies of both women, it
can clearly be seen that the story told by . . . Stiles
[at the probable cause hearing and at the criminal trial]
in 1993 [and] 1995 simply cannot be true.’’
Applying these facts to the claims raised in the petition, the habeas court concluded that the petitioners
had established their entitlement to relief on the basis
of actual innocence. The court reasoned: ‘‘In short, the
finding that . . . Stiles was not telling the truth in 1993
[and] 1995 not only renders the ultimate conviction
unreliable, it wholly vitiates all of the proceedings
against [the petitioners]. These cases, in fact, go way
beyond ‘actual innocence.’ The criminal cases never
should have been initiated in the first place! These men
deserve immediate relief.’’ (Emphasis in original.)
Accordingly, the habeas court granted the petitions,
vacated the convictions and ordered the respondent to
immediately and unconditionally release the petitioners.13 The respondent’s appeals followed. See footnote
2 of this opinion.
The respondent claims that the habeas court improperly: (1) failed to apply the Miller test and found that
the petitioners had proven actual innocence in the
absence of affirmative evidence that the petitioners did
not commit the crimes of which they were convicted;
(2) found Stiles’ recantation credible; and (3) exceeded
its authority even if the petitioners were entitled to
habeas relief by ordering their immediate and unconditional release instead of a new trial. In response, the
petitioners contend that the habeas court applied the
proper standard and that overwhelming evidence,
including third party culpability evidence, supports that
court’s findings that the recantations of Stiles and Boyd
were credible. The petitioners further contend that the
habeas court had discretion to order their release. We
agree with the respondent’s first claim. Because this
conclusion requires us to reverse the judgments and
remand the cases for a new trial consistent with the
proper application of the Miller test, we need not consider the respondent’s second and third claims.
The question of whether the habeas court applied
the correct standard is a question of law subject to
plenary review. Cf. In re Tayler F., 296 Conn. 524, 537,
995 A.2d 611 (2010) (applying plenary review to question of whether trial court applied proper standard and
procedures in making discretionary determination);
Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382
(2007) (whether correct burden of proof was applied
is question of law subject to plenary review). With
respect to the correct standard, Miller unequivocally
and unmistakably set forth a two part test for obtaining
habeas relief on the basis of a freestanding claim of
actual innocence. In that opinion, this court twice stated
that standard as follows: ‘‘First, taking into account
both the evidence produced in the original criminal trial
and the evidence produced in the habeas hearing, the
petitioner must persuade the habeas court by clear and
convincing evidence, as that standard is properly understood and applied in the context of such a claim, that
the petitioner is actually innocent of the crime of which
he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the
inferences drawn therefrom, as the habeas court did, no
reasonable fact finder would find the petitioner guilty.’’
Miller v. Commissioner of Correction, supra, 242 Conn.
791–92; id., 747.
In the present case, it is difficult to ascertain whether
the habeas court recognized that it was required to
apply this test. The habeas court mentioned the second
prong of the Miller test seventeen pages into its discussion of the proper legal standard for a claim of actual
innocence. Nowhere in that discussion did it mention
the first prong of the test. This omission is curious given
not only our succinct statement of the test, but also
the scores of appellate decisions that have set forth
this test verbatim. See, e.g., Mozell v. Commissioner of
Correction, 291 Conn. 62, 80–81, 967 A.2d 41 (2009);
Lewis v. Commissioner of Correction, 116 Conn. App.
400, 415, 975 A.2d 740, cert. denied, 294 Conn. 908,
982 A.2d 1082 (2009); Weinberg v. Commissioner of
Correction, 112 Conn. App. 100, 118, 962 A.2d 155, cert.
denied, 291 Conn. 904, 967 A.2d 1221 (2009); Wilson v.
Commissioner of Correction, 104 Conn. App. 224, 246,
932 A.2d 481 (2007).
Nonetheless, the habeas court did incorporate the
language of the first prong when rejecting the petition-
ers’ ineffective assistance of counsel claim fifty-three
pages into its decision: ‘‘Despite the fact that this habeas
court is convinced with clear and convincing evidence
that the petitioners are actually innocent of the charges
in this case and will grant relief on that basis, the court
does not find that the trial defense counsel were ineffective.’’ This reference, in conjunction with the earlier
references to the Miller decision, persuades us that the
habeas court was aware of the Miller test. The question
therefore becomes whether it actually applied the standard that Miller intended.
The respondent conceded at oral argument before
this court that, if Stiles’ recantation properly can be
credited, the second prong of the Miller test undoubtedly would be satisfied, given that no reasonable juror
who believed her recantation would find the petitioners
guilty. We therefore focus our attention on the first
prong of the Miller test. Put another way, this appeal
essentially raises the question of whether satisfaction
of the second prong of the Miller test necessarily dictates that the first prong of that test has been met. We
conclude that it does not.14
When this court first recognized actual innocence as
a basis for habeas relief, we reasoned that only an
extraordinary circumstance could justify such relief
because: (1) the petitioner would have been convicted
in a trial that was free of any antecedent constitutional
defect; and (2) the legislature had determined that petitions for a new trial on the basis of newly discovered
evidence generally can only be brought within three
years of the rendition of judgment; General Statutes
§§ 52-270 (a) and 52-582;15 whereas habeas relief can
be sought even decades later. Summerville v. Warden,
supra, 229 Conn. 424–31. When later required to prescribe the requisite proof to prevail on such a claim,
much of this court’s analysis in Miller was dedicated
to the question of how persuasive the evidence of actual
innocence must be. In deciding that clear and convincing evidence was the proper burden of proof, this court
explained that ‘‘the substantial greatness of the probability of the truth of the facts asserted indicates that it
is a very demanding standard and should be understood
as such, particularly when applied to a habeas claim
of actual innocence, where the stakes are so important
for both the petitioner and the state. We have stated
that the clear and convincing evidence standard should
operate as a weighty caution upon the minds of all
judges, and it forbids relief whenever the evidence is
loose, equivocal or contradictory.’’ (Internal quotation
marks omitted.) Miller v. Commissioner of Correction,
supra, 242 Conn. 795. We equated the clear and convincing burden with an ‘‘extraordinarily high and truly persuasive [demonstration] of actual innocence’’; (internal
quotation marks omitted) id., 795; one in which the
petitioner must ‘‘unquestionably establish [his] innocence.’’ (Internal quotation marks omitted.) Id. This
court underscored that ‘‘truly persuasive demonstrations of actual innocence after conviction in a fair trial
have been, and are likely to remain, extremely rare.’’
(Internal quotation marks omitted.) Id., 805–806.
Indeed, Miller remains the only case in which a claim
of actual innocence successfully has been established
in this state.
Our use of the term ‘‘actual innocence’’ is of paramount significance. Actual innocence, also referred to
as factual innocence; Bousley v. United States, 523 U.S.
614, 623, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998); is
different than legal innocence. Actual innocence is not
demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable
doubt. See Ankerman v. Commissioner of Correction,
122 Conn. App. 246, 252, 999 A.2d 789 (petitioner’s claim
that state failed to prove element of specific intent ‘‘is
essentially one of sufficiency of the evidence and not
one of actual innocence’’), cert. denied, 298 Conn. 922,
4 A.3d 1225 (2010); People v. Barnslater, 373 Ill. App.
3d 512, 520, 869 N.E.2d 293 (‘‘actual innocence [does]
not concern whether a defendant had been proved
guilty beyond a reasonable doubt’’ [internal quotation
marks omitted]), appeal denied, 225 Ill. 2d 641, 875
N.E.2d 1115 (2007); Ex parte Franklin, 72 S.W.3d 671,
678 (Tex. Crim. App. 2002) (petitioner asserting freestanding actual innocence ‘‘must establish his innocence of the crime by clear and convincing evidence
and not merely that he would be found not guilty by a
subsequent jury’’).
Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime.
See Carriger v. Stewart, 132 F.3d 463, 476–77 (9th Cir.
1997) (‘‘Requiring affirmative proof of innocence is
appropriate, because when a petitioner makes a freestanding claim of innocence, he is claiming that he is
entitled to relief despite a constitutionally valid conviction. . . . Although the postconviction evidence [the
petitioner] presents casts a vast shadow of doubt over
the reliability of his conviction, nearly all of it serves
only to undercut the evidence presented at trial, not
affirmatively to prove [his] innocence. [The petitioner]
has presented no evidence, for example, demonstrating
he was elsewhere at the time of the murder, nor is there
any new and reliable physical evidence, such as DNA,
that would preclude any possibility of [his] guilt.’’ [Citations omitted.]), cert. denied, 523 U.S. 1133, 118 S. Ct.
1827, 140 L. Ed. 2d 963 (1998); People v. Barnslater,
supra, 373 Ill. App. 3d 520 (‘‘actual innocence mean[s]
total vindication, or exoneration’’ [internal quotation
marks omitted]); Beach v. State, 353 Mont. 411, 421, 220
P.3d 667 (2009) (‘‘[a] petitioner predicates a substantive
‘actual innocence’ claim on the assertion that he did
not commit the crime of which he has been convicted’’);
Ex parte Franklin, supra, 72 S.W.3d 677 (‘‘clear and
convincing evidence that no reasonable juror would
have convicted [the petitioner] in light of the newly
discovered evidence . . . requires . . . evidence that
goes towards affirmatively proving [the petitioner’s]
innocence’’); see also Turner v. Commonwealth, 56 Va.
App. 391, 411, 694 S.E.2d 251 (2010) (explaining that
relief on petition for ‘‘a writ of actual innocence’’ is
available ‘‘only to those individuals who can establish
that they did not, as a matter of fact, commit the crime
for which they were convicted and not to those who
merely produce evidence contrary to the evidence presented at their criminal trial’’ [internal quotation marks
omitted]), appeal granted, Docket No. 101457, 2011 Va.
LEXIS 9 (Va. January 7, 2011). Indeed, the petitioners
have brought no case to our attention in which any other
jurisdiction has granted habeas relief on a freestanding
claim of actual innocence in the absence of such affirmative evidence, and our independent research of
scores of cases reveals none.16
Affirmative proof of actual innocence is that which
might tend to establish that the petitioner could not
have committed the crime even though it is unknown
who committed the crime, that a third party committed
the crime or that no crime actually occurred. See, e.g.,
Miller v. Commissioner of Correction, supra, 242 Conn.
758–59 (third party confession); Summerville v. Warden, supra, 229 Conn. 420 (discussing colorable but
unsuccessful claim that no crime occurred in light of
new expert opinion that cause of victim’s death was
acute cocaine intoxication, not asphyxiation from manual strangulation, and marks on victim’s neck could
have been caused by resuscitation efforts); People v.
Molstad, 101 Ill. 2d 128, 132–37, 461 N.E.2d 398 (1984)
(granting relief after petitioner presented affidavits
from four convicted codefendants and one acquitted
codefendant stating that petitioner had not been present
at crime); People v. Wheeler-Whichard, 25 Misc. 3d 690,
694–95, 702–703, 884 N.Y.S.2d 304 (2009) (relief
afforded when several witnesses credibly provided alibi
for petitioner); Ex parte Elizando, 947 S.W.2d 202, 210
(Tex. Crim. App. 1996) (relief afforded when ‘‘[the victim’s] recantation [of testimony that a crime occurred]
not only voids his trial testimony which implicated the
[petitioner], but constitutes affirmative evidence of [the
petitioner’s] innocence’’). Clear and convincing proof
of actual innocence does not, however, require the petitioner to establish that his or her guilt is a factual impossibility. See Turner v. Commonwealth, supra, 56 Va.
App. 410 n.7 (rejecting proposition that only irrefutable
scientific evidence like DNA can be used to prove actual
innocence); see also Miller v. Commissioner of Correction, supra, 801 (rejecting respondent’s attempt to prescribe standard that would ‘‘cabin the particular type of
evidence that must underlie the finding of innocence’’).
Recantations of inculpatory criminal trial testimony
undoubtedly are relevant to a determination of actual
innocence. But evidence of that nature must be accom-
panied by affirmative evidence of innocence to meet
Miller’s standard of clear and convincing evidence of
actual innocence. A recent case from the Supreme
Court of Missouri is illustrative. The petitioner was convicted on the basis of the testimony of three purported
eyewitnesses to the crime who had identified the petitioner as the perpetrator. State ex rel. Amrine v. Roper,
102 S.W.3d 541, 544 (Mo. 2003). No physical evidence
linked the petitioner to the crime. Id. At his habeas
trial, the petitioner proffered recantations from all three
witnesses. Id., 544–45. Significantly, although the petitioner presented no affirmative evidence of innocence
at the habeas trial, he had produced alibi witnesses and
eyewitnesses to the crime who inculpated a third party
at the criminal trial. Id., 548. Thus, the entire record
from both the criminal and the habeas trials clearly and
convincingly established the petitioner’s actual innocence. See Miller v. Commissioner of Correction,
supra, 242 Conn. 747 (noting that first prong of Miller
test ‘‘tak[es] into account all of the evidence—both the
evidence adduced at the original criminal trial and the
evidence adduced at the habeas corpus trial’’).
With these principles in mind, we turn to the question
of whether the habeas court in the present case applied
the proper standard when concluding that the petitioners had met their burden of proof on their claims of
actual innocence. Our review of that decision makes
clear that the habeas court’s finding of actual innocence
rested essentially on the recantation by Stiles, with
Boyd’s recantation considered to a lesser extent.
Indeed, the habeas court characterized the claims as
ones ‘‘premised almost entirely, if not solely, on a recantation.’’ Because the recantations in the present case,
in and of themselves, cannot affirmatively demonstrate
that the petitioners did not commit the crimes of which
they were convicted, the habeas court’s reliance on the
recantations reflects that it did not apply the proper
standard under Miller.
Although the petitioners claim that new evidence also
inculpated DeLeon, the habeas court viewed that evidence equivocally and as relevant only to the extent
that it related to the credibility of Stiles’ recantation.
It first stated: ‘‘The petitioners were also able to present
credible evidence at the habeas trial that seemingly
implicates [DeLeon] as a possible perpetrator of the
crime.’’ (Emphasis added.) The habeas court then
pointed out that no forensic evidence directly had tied
DeLeon to the murder, including DNA on the sample
of the cord tested. Significantly, the habeas court ultimately found: ‘‘The real import of the ‘third party culpability’ evidence is not that it establishes that someone
else committed the crime, but that it shows that the
New Haven police department seized upon the false
testimony of . . . Stiles and then used it to essentially
mark the case as cleared.’’ (Emphasis in original.)
The petitioners also point to an audiotaped interview
of Youmans by their investigator, which they claim
lends support to their theory that DeLeon murdered
Vega and that Youmans was present when the murder
occurred. See footnote 12 of this opinion. The habeas
court made no findings, however, as to the credibility or
import of Youmans’ statements on that tape, or another
taped interview that was consistent with Youmans’
criminal trial testimony in which she stated that she
had left the store before the shooting and had no knowledge of who had committed the crime. Nonetheless,
the petitioners suggested at oral argument that this
court could consider the audiotape on which they rely
to support the habeas court’s finding. They point to our
statement in Miller that ‘‘[t]he appropriate scope of
review [for the first prong] is whether, after an independent and scrupulous examination of the entire record,
we are convinced that the finding of the habeas court
that the petitioner is actually innocent is supported
by substantial evidence.’’ Miller v. Commissioner of
Correction, supra, 242 Conn. 803. The petitioners misunderstand the nature of our examination of the record.
Appellate courts never act as finders of fact. State v.
Parker, 295 Conn. 825, 852 n.22, 992 A.2d 1103 (2010);
Claveloux v. Downtown Racquet Club Associates, 246
Conn. 626, 633, 717 A.2d 1205 (1998). When a witness
presents conflicting testimony, a question of credibility
arises that must be assessed by the trier of fact. Fleming
v. Bridgeport, 284 Conn. 502, 515–16, 935 A.2d 126
(2007); Greco v. Greco, 275 Conn. 348, 359, 880 A.2d
872 (2005). We cannot presume, in the absence of any
indication by the habeas court, that it reasonably could
have credited one version over another, or even that it
construed Youmans’ comments as the petitioners do.
In sum, the recantations by Stiles and Boyd may demonstrate that there no longer is any credible evidence
that the petitioners did commit the crimes of which
they were convicted. What the habeas court’s decision
lacks is any discussion of affirmative evidence that
would prove by clear and convincing evidence that the
petitioners did not commit the crimes. We therefore
conclude that the habeas court’s judgments must be
reversed and the cases must be remanded for consideration of the petitions under the proper application of
the Miller standard.
In so concluding, we are mindful that it may seem
unjust to allow a conviction to stand when the evidence
on which the conviction rested has been discredited.
It must be remembered, however, that, once properly
convicted, the petitioners no longer are cloaked in the
mantle of the presumption of innocence. See Summerville v. Warden, supra, 229 Conn. 422–24 (‘‘It is
undoubtedly true that [a] person when first charged
with a crime is entitled to a presumption of innocence,
and may insist that his guilt be established beyond a
reasonable doubt. . . . The presumption of innocence,
however, does not outlast the judgment of conviction
at trial. Once a defendant has been afforded a fair trial
and convicted of the offense for which he was charged,
the presumption of innocence disappears. . . . Any
other conclusion would be inconsistent with the fact
that our habeas corpus jurisprudence places a heavy
burden on the petitioner to establish that, notwithstanding his conviction, he is entitled to a new trial.’’ [Citations omitted; internal quotation marks omitted.]).
Discrediting the evidence on which the conviction
rested does not revive the presumption of innocence.
To disturb a long settled and properly obtained judgment of conviction, and thus put the state to the task
of reproving its case many years later, the petitioners
must affirmatively demonstrate that they are in fact
innocent.
We underscore, however, what is not at issue in the
present case. First, this case is not one in which there
was irrefutable evidence that Stiles could not have seen
or heard the petitioners at the crime scene. For example, there was no videotape of Stiles at another location
at the time the crime occurred. Had there been such
evidence, this case would not simply be one in which
no reasonable juror would find the petitioners guilty.
Rather, it would be a case in which no reasonable juror
could, as a matter of law, find the petitioners guilty.
Under circumstances where new, irrefutable evidence
is produced that so completely eviscerates the prosecution’s case such that the state would have no evidence
to go forward with upon retrial, perhaps a functional
equivalent to actual innocence might credibly be
claimed. Indeed, such an approach might be reconciled
with the statutory limitation period for filing a petition
for a new trial on the basis of newly discovered evidence
because DNA, one form of irrefutable exculpatory evidence, is not subject to the statute of limitations. See
General Statutes § 52-582.
Unlike such irrefutable evidence, however, the
habeas court’s decision in the present case rests on a
witness’ recantation of sworn testimony. Although a
recantation that provides affirmative evidence that a
petitioner did not commit the crime may constitute
sufficient proof to establish actual innocence; see, e.g.,
Ex parte Elizando, supra, 947 S.W.2d 210; it is important
to underscore that courts universally view recantation
evidence with a healthy dose of skepticism.17 See Channer v. State, 54 Conn. App. 620, 629, 738 A.2d 202, cert.
denied, 251 Conn. 910, 739 A.2d 1247 (1999); People v.
Morgan, 212 Ill. 2d 148, 155, 162–63, 817 N.E.2d 524
(2004); Case v. Hatch, 144 N.M. 20, 23–26, 183 P.3d 905
(2008); People v. Cintron, 306 App. Div. 2d 151, 152,
763 N.Y.S.2d 11, cert. denied, 100 N.Y.2d 641, 801 N.E.2d
428, 769 N.Y.S.2d 207 (2003); Commonwealth v.
D’Amato, 579 Pa. 490, 522, 856 A.2d 806 (2004); In re
Carpitcher, 47 Va. App. 513, 526, 624 S.E.2d 700 (2006),
aff’d, 273 Va. 335, 641 S.E.2d 486 (2007); Brown v. State,
816 P.2d 818, 822–23 (Wyo. 1991). Indeed, it is not
unprecedented for a witness to recant a recantation.
See, e.g., Carriger v. Stewart, supra, 132 F.3d 484; In
re Roberts, 29 Cal. 4th 726, 738, 60 P.3d 165, 128 Cal.
Rptr. 2d 762 (2003); State v. Lincoln, 71 Haw. 274, 276,
789 P.2d 497 (1990); People v. Fernandez, 58 App. Div.
3d 494, 495, 870 N.Y.S.2d 351, leave to appeal denied,
12 N.Y.3d 915, 912 N.E.2d 1077, 884 N.Y.S.2d 696 (2009);
State v. Robillard, 146 Vt. 623, 629, 508 A.2d 709 (1986);
Lewis v. Commonwealth, 193 Va. 612, 626, 70 S.E.2d
293, cert. denied, 344 U.S. 880, 73 S. Ct. 177, 97 L. Ed.
681 (1952). Accordingly, if the state were to retry the
petitioners, a jury would not be required, as a matter
of law, to credit Stiles’ recantation.
Second, the petitioners have not claimed on appeal
that the fact that their convictions rest on what the
habeas court deemed to be perjured testimony is an
independent basis for habeas relief. The petitioners’
appellate brief cites cases from the United States Court
of Appeals for the Second Circuit for the more general
proposition that ‘‘[f]ew rules are more central to an
accurate determination of innocence or guilt . . . than
the requirement . . . that one should not be convicted
on false testimony.’’ (Citations omitted; internal quotation marks omitted.) Sanders v. Sullivan, 900 F.2d 601,
607 (2d Cir. 1990); accord Ortega v. Duncan, 333 F.3d
102, 109 (2d Cir. 2003). As the respondent pointed out
in his reply brief, these cases are ones in which that
court has taken a position adopted by a minority of
jurisdictions that even a prosecutor’s unknowing use
of perjured testimony can violate due process.18 At oral
argument before this court, the petitioners did not challenge the respondent’s contention that they had not
asserted, or adequately briefed, a due process claim as
an alternative ground on which to affirm the habeas
court’s judgment. Upon this court’s inquiries, however,
the respondent opined that the habeas court would
have discretion to allow the petitioners to amend their
petition to advance such a claim upon remand, if they
so choose. Therefore, the question of whether the petitioners could obtain relief on such a basis is not presently before us.
Accordingly, the petitions must be reconsidered
under the proper standard. We note that Taylor’s habeas
counsel recently has informed this court that Taylor is
terminally ill. Therefore, we direct the habeas court to
conduct a new trial on this matter as expeditiously
as possible.
The judgments are reversed and the cases are
remanded to the habeas court for a new trial.
In this opinion the other justices concurred.
1
As one court succinctly described such a ‘‘freestanding’’ claim: ‘‘Metaphorically, an actual innocence claim . . . seeks a second bite at the apple,
but unlike an ineffective assistance of counsel claim, for example, it does
not contend the first bite was rotten.’’ In re Lawley, 42 Cal. 4th 1231, 1241,
179 P.3d 891, 74 Cal. Rptr. 3d 92 (2008).
2
The respondent appealed from the habeas court’s judgments granting
the petitions to the Appellate Court. We thereafter transferred the appeals
to this court pursuant to General Statutes § 51-199 (c) and Practice Book
§ 65-1.
3
For purposes of clarity, we refer herein to Gould and Taylor individually
by name, and jointly as the petitioners, when necessary.
4
As this court noted in the petitioners’ direct criminal appeal: ‘‘Detective
Leroy Dease of the New Haven police department testified that during his
investigation in this case, he spoke with Gould several times. Gould told
Dease that he had left Tasha Grumes’ apartment with Taylor and Lawrence
Kelly around 11:30 p.m. on July 3, 1993. Gould stated that they had been
trying to raise money near Grumes’ apartment in order to buy drugs, that
they had raised money and bought drugs, and that they had also given $30
to Grumes. Gould further told Dease that he had been at 480 Ferry Street
with Taylor and Kelly at 3 a.m. on July 4, 1993, and that they also had been
successful at raising money and buying drugs at that location. Gould stated
that he and Taylor had then been at Gerrilyn Herring’s house until 6:15 a.m.
‘‘Dease also had spoken with Taylor, who told Dease that he had been
with Gould and Kelly that night. Taylor stated, however, that the incident
at 480 Ferry Street had occurred at 11:30 p.m. and that the incident near
Grumes’ apartment had occurred in the early morning. Taylor further stated
that Kelly had not been involved in the incident near Grumes’ apartment.
Taylor told Dease that he had gone to Herring’s house at about 3 a.m. and
left about 5:30 a.m.’’ State v. Gould, 241 Conn. 1, 21, 695 A.2d 1022 (1997).
In the criminal appeals, this court rejected Taylor’s claim that, even though
the state was not permitted to refer to ‘‘robberies,’’ the jury necessarily
would construe the evidence of attempts to raise money at night as robberies.
Id., 22. This court pointed to evidence that two other witnesses, Pam Youmans and Doreen Stiles, also were out on the street in the early morning
hours of July 4, 1993, looking for money to buy drugs. Id.
5
Both of the petitioners are dark skinned men.
6
This court agreed with Taylor’s claim that his conviction of attempt to
commit robbery in the first degree could not stand because it was a lesser
included offense of robbery in the first degree. State v. Gould, 241 Conn.
1, 23–24, 695 A.2d 1022 (1997). This court remanded the case to the trial
court with direction to merge the defendant’s conviction of robbery in the
first degree with his conviction of attempt to commit robbery in the first
degree, and to vacate the sentence for attempt to commit robbery in the
first degree. Id., 24. Gould did not challenge his conviction of attempt to
commit robbery in the first degree.
7
The petitions also included counts alleging that the trial court had
impaired their rights to present a defense and to confront witnesses against
them. The state argued in its posttrial brief that the petitioners already had
litigated these issues in their criminal appeals. The petitioners did not
address these issues in their posttrial brief, and the habeas court did not
address them in its memorandum of decision.
8
Although the Appellate Court has determined that a claim of actual
innocence must be supported by newly discovered evidence; see Gaston v.
Commissioner of Correction, 125 Conn. App. 553, 558, 9 A.3d 397 (2010),
cert. denied, 300 Conn. 908, 12 A.3d 1003 (2011); this court has not yet
addressed that question. See Mozell v. Commissioner of Correction, 291
Conn. 62, 81 n.10, 967 A.2d 41 (2009) (noting that this issue has been open
question for this court since our decision in Miller because every case has
involved unchallenged finding that evidence was newly discovered). We
also need not address this issue in the present case because the respondent
does not challenge the habeas court’s finding that the recantations are newly
discovered evidence.
9
Stiles was hospitalized with endocarditis, a potentially life threatening
heart condition, at the time of the petitioners’ criminal trial.
10
In a footnote, the habeas court noted: ‘‘Of course . . . Stiles is not the
only witness to have changed her testimony. . . . Boyd, who in 1993 had
a drug habit, is now also drug free and admits to lying to the police to avoid
prosecution and prevent [the department of children and families] from
taking her children. Her recantation and habeas testimony in 2009 is deemed
credible. Less space is devoted to an analysis of her recantation because
she is a less central figure than . . . Stiles.’’
11
In the petitioners’ direct criminal appeals, Taylor had claimed that his
convictions of felony murder, robbery in the first degree and attempt to
commit robbery in the first degree should be reversed because there was
no evidence that either a robbery or an attempted robbery had been committed at La Casa Green. State v. Gould, supra, 241 Conn. 5. Taylor asserted
that the state had not established what items had been in the safe, or that
anything was missing from the safe, and that there was no evidence that
anything was missing from Vega’s person. Id., 5–6. This court rejected that
claim. See id., 7–8 (setting forth evidence supporting these convictions).
12
The state suggests in its brief to this court that the DNA test was of no
evidentiary value because it also did not reveal any DNA from Vega. The
petitioners point out that the DNA test did reveal female DNA. Their theory
at the habeas trial was that Youmans, who had been with Vega when he
opened the store, was still there when DeLeon came into the store and shot
Vega. Two audiotaped interviews conducted in 2009 between Youmans and
the petitioners’ investigator were introduced into evidence. The first interview was consistent with Youmans’ testimony at the criminal trial that she
had left the store when Vega was still alive and knew nothing about the
shooting. The second interview provided some support for the petitioners’
theory. The habeas court did not mention either taped interview in its
memorandum of decision and made no express finding regarding Youmans’
criminal trial testimony.
13
The habeas court later amended its order to provide that the petitioners
were to be released subject to specified conditions, including posting a
$100,000 nonsurety bond and being subject to electronic monitoring, until
the appeals were concluded.
14
We note that the recantation evidence in the present case is of an entirely
different character than the third party confession at issue in Miller—the
former directly discredits the state’s evidence, whereas the latter provides
a wholly different account than the state’s evidence. As a result, the present
case gives us occasion to examine the Miller test through a slightly different
lens. That examination suggests to us that there may not be any case in
which the first prong is not dispositive of the petition, either because the
failure to satisfy the first prong will be fatal or because satisfaction of the
first prong necessarily will satisfy the second prong in light of reexamination
of the same evidence and reliance on the same inferences. Indeed, as the
discussion in this opinion demonstrates, the first prong of Miller sets forth
the heart of an actual innocence claim. Nonetheless, neither party in the
present case has asked this court to reconsider the Miller test. Therefore,
should it be necessary, we leave to another day the question of whether
some modification to the test should be considered.
15
There is no time limit for seeking a new trial predicated on DNA evidence.
General Statutes § 52-582.
16
California, Illinois, Missouri, Montana, New Mexico, New York and
Texas have recognized freestanding actual innocence claims as a basis for
habeas relief. See In re Bell, 42 Cal. 4th 630, 637, 170 P.3d 153, 67 Cal. Rptr.
3d 781 (2007); People v. Morgan, 212 Ill. 2d 148, 154, 817 N.E.2d 524 (2004);
State ex rel. Amrine v. Roper, 102 S.W.3d 541, 543 (Mo. 2003); Beach v.
State, supra, 353 Mont. 421; Montoya v. Ulibarri, 142 N.M. 89, 91, 163 P.3d
476 (2007); People v. Wheeler-Whichard, 25 Misc. 3d 690, 702, 884 N.Y.S.2d
304 (Sup. 2009); People v. Cole, 1 Misc. 3d 531, 542, 765 N.Y.S.2d 477 (Sup.
2003); Ex parte Franklin, supra, 72 S.W.3d 677; see also State v. Conway,
816 So. 2d 290, 291 (La. 2002) (per curiam) (assuming, without deciding,
that freestanding claim may be established). Other jurisdictions have statutes
that provide postconviction relief on the basis of actual innocence. See,
e.g., D.C. Code Ann. §§ 22-4131 and 22-4135 (LexisNexis 2010); Utah Code
Ann. §§ 78b-401.5, 78b-402 and 78b-9-404 (2002); Va. Code Ann. §§ 19.2327.10 and 19.2-327-11 (A) (vii) (2008).
Some other jurisdictions have rejected freestanding actual innocence
claims as a basis for habeas relief. See, e.g., Tompkins v. State, 994 So. 2d
1072, 1089 (Fla. 2008); State v. El-Tabech, 259 Neb. 509, 526–27, 610 N.W.2d
737 (2000); State v. Harrington, 172 Ohio App. 3d 595, 602, 876 N.E.2d 626
(2007); State ex rel. Smith v. McBride, 224 W. Va. 196, 208 n.44, 681 S.E.2d
81 (2009); see also Boyles v. Weber, 677 N.W.2d 531, 537–38 (S.D. 2004)
(implicitly rejecting freestanding actual innocence claim). The United States
Supreme Court has left open the question of whether federal habeas relief
is available on the basis of a freestanding claim of actual innocence. See
House v. Warden, 547 U.S. 518, 554–55, 126 S. Ct. 2064, 165 L. Ed. 2d 1
(2006) (‘‘[The petitioner] urges the [c]ourt to answer the question left open
in Herrera [v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993)]
and hold not only that free-standing innocence claims are possible but also
that he has established one. We decline to resolve this issue. We conclude
here, much as in Herrera, that whatever burden a hypothetical free-standing
innocence claim would require, this petitioner has not satisfied it.’’).
Some jurisdictions have not been confronted with this question, perhaps
because approximately one third of the states have a statute or rule that
sets no time limit, or one that can be waived, to petition for a new trial
based on newly discovered evidence. See Herrera v. Collins, supra, 506
U.S. 410–11 and n.11 (identifying fifteen jurisdictions); see also Fla. R. Crim.
Proc. 3.850 (a) (6) and (b) (1); Wash. Rev. Code Ann. § 10.73.100 (West 2002).
17
In addition to concerns expressed by some courts as to improper influences, such as coercion or duress, that may cause a witness to recant; State
v. Hogan, 144 N.J. 216, 239, 676 A.2d 533 (1996); Carpitcher v. Commonwealth, 273 Va. 335, 346, 641 S.E.2d 486 (2007); this court noted a more
sympathetic motive that can come into play: ‘‘After the trial is over and the
accused stands convicted, with the heavy penalty of the law impending and
just ready to fall upon him, how easy by artful or even honest suggestion
to awaken a sympathy even in the heart of the victim, who was the main,
perhaps only witness against the accused, and who naturally feels responsible for the conviction; and how easy for such witness by a process of
speculation, colored by feeling, to feel and express a doubt about the correctness of the opinion entertained at the time of the transaction.’’ Shields v.
State, 45 Conn. 266, 270 (1877); see also Johnson v. State, 36 Conn. App.
59, 69, 647 A.2d 373 (distinguishing sympathetic motive for recantation with
situation in which ‘‘recanter admits to knowingly perjuring himself at trial
and now allegedly wants to ‘come clean’ ’’), cert. denied, 231 Conn. 946, 653
A.2d 827 (1994).
18
As this court has recognized, it is settled law that ‘‘the knowing presentation of false evidence by the state is incompatible with the rudimentary
demands of justice. . . . Furthermore, due process is similarly offended if
the state, although not soliciting false evidence, allows it to go uncorrected
when it appears.’’ (Citations omitted; internal quotation marks omitted.)
State v. Paradise, 213 Conn. 388, 399–400, 567 A.2d 1221 (1990), overruled
in part on other grounds by State v. Skakel, 276 Conn. 633, 693, 888 A.2d
985 (2006), cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2008).
The New Mexico Supreme Court has noted: ‘‘The issue of whether a
petitioner is entitled to habeas corpus relief when the petitioner raises due
process implications from the alleged unknowing use of perjured testimony
by the prosecution is unsettled. The United States Supreme Court has not
addressed the issue. Evenstad v. Carlson, 470 F.3d 777, 783 (8th Cir. 2006).
In Durley v. Mayo, [351 U.S. 277, 291, 76 S. Ct. 806, 100 L. Ed. 1178 (1956)
(Douglas, J., dissenting)] however, four [j]ustices would have held that
‘[d]eprivation of a [habeas corpus] hearing under these circumstances
amounts . . . to a denial of due process of law.’ . . . The majority never
reached the question, instead dismissing for lack of jurisdiction. [Id., 285].
More recently, Justices Stevens and Ginsburg made the same argument in
their opposition to a denial of certiorari. Jacobs v. Scott, 513 U.S. [1067],
115 S. Ct. 711, 130 L. Ed. 2d 618 (1995) (Stevens and Ginsburg, Js., dissenting).
‘‘A majority of the federal circuit courts require a knowing use of perjured
testimony by the prosecution to find a violation of due process. Sanders
[v. Sullivan, supra, 863 F.2d 222] (citing cases from the Third, Fifth, Sixth,
Seventh, Ninth, Tenth, and Eleventh Circuit Courts of [Appeal]). The Second
Circuit in Sanders found that due process rights may be implicated [even
by an unknowing use of perjured testimony] ‘when a credible recantation
of the testimony in question would most likely change the outcome of the
trial and a state leaves the conviction in place.’ ’’ Case v. Hatch, supra,
144 N.M. 25. State courts are divided on this issue. See Commonwealth v.
Spaulding, 991 S.W.2d 651, 657 (Ky. 1999) (due process violation for unknowing use); Riley v. State, 93 Nev. 461, 462, 567 P.2d 475 (1977) (same); Case
v. Hatch, supra, 25–26 (same); People v. Yamin, 45 Misc. 2d 407, 416–17,
257 N.Y.S.2d 11 (1965) (same); Ex parte Napper, 322 S.W.3d 202, 242 (Tex.
Crim. App. 2010) (same); see also Bean v. State, 119 Idaho 645, 648–49, 809
P.2d 506 (App. 1990) (affording postconviction relief under statute permitting
vacation of conviction in interests of justice), aff’d with modification, 119
Idaho 632, 809 P.2d 493 (1991); Cal. Penal Code, § 1473 (b) and (c) (Deering
2008) (providing habeas relief for conviction based on material false testimony, irrespective of whether prosecution knew or should have known of
falsity). But see People v. Brown, 169 Ill. 2d 94, 104–106, 660 N.E.2d 964
(1995) (acknowledging split of authority and explaining reason for limiting
relief to cases in which there is knowledge by state); State v. Lotter, 278
Neb. 466, 479–81, 771 N.W.2d 551 (2009) (no due process violation without
state’s knowledge of falsity), cert. denied,
U.S. , 130 S. Ct. 1900, 176
L. Ed. 2d 378 (2010); State v. Thiel, 515 N.W.2d 186, 191 (N.D. 1994) (same).
This court has not addressed this question.
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