Skakel v. State

motion v. Tunick, supra, State disqualify.” 109 Conn. App. 612-13.

The defendant then appealed to the Appellate Court claiming that the trial improperly court had denied his motion to disqualify itself because the partici- court had pated pretrial discussions and negotiations; id., 614; and because the court was biased against Id., him. 616. The Appellate rejected Court affirmed these claims and the judgment of the trial court. Id. This appeal followed.

The defendant claims appeal on Appellate Court improperly affirmed the defendant’s conviction, without first remanding the case to the trial court for hearing question of whether the trial court had actively participated pretrial negotiations. After examining the entire appeal record on and considering the briefs and oral arguments of the parties, we have determined appeal that the in this case should be dis- missed on the ground that certification improvi- dently granted.

The appeal is dismissed. MICHAEL C. SKAKEL v. STATE OF CONNECTICUT

(SC 18158) * Katz, Palmer, Vertefeuille, McLachlan, Zarella and Js. improper during conduct proceedings the court on November 2006. Williams did not indicate in the engaged affidavit that the trial court had

pretrial negotiations discussions or in the case. * argued prior implementation This case was policy to the of this court to hear all cases en banc. officially April 20,

Argued released March Santos, Hope Seeley with whom were C. Hubert J. for Benjamin Adams, appellant (petitioner). B. attorney, state’s Gill, senior assistant SusannE. former state’s attor- Benedict, was C. whom Jonathan ney, appellee (respondent). for

451 Opinion KATZ, conviction, J. Following jury his 2002 after a for trial, year the 1975 murder of his fifteen old neighbor, Moxley Martha Michael C. (victim), petitioner, Ska appealed.1 kel, year In accordance with the three limita period 2005, tions under General Statutes 52-582,2 § while a appeal pending, peti decision was petition trial, pursuant tioner filed a for a to new General (a),3 ground newly Statutes 52-270 on the of § discov ered evidence. This judg court thereafter affirmed the conviction. See State v. Skakel, ment 276 633, Conn. 888 A.2d 127 denied, 1030, 578, cert. 549 U.S. S. Ct. J., L. Ed. 428 Karazin, court, 166 2d The trial (2006).4 1 petitioner appealed directly Appellate Court, The to the rather than to (3). (b) Therefore, this § court directed General Statutes 51-199 appeal pursuant was transferred this court Book § Practice 65-4. provides: petition any § General Statutes 52-582 “No for a new trial in proceeding brought years civil criminal or shall be but within three next judgment complained of, except after the rendition of the or decree petition (deoxyribonucleic acid) based on DNA evidence that was original may discoverable or at brought available the time of the be any discovery availability time after the or of such new evidence.” (a) provides: Superior may General 52-270 grant § Statutes “The Court any may it, a new trial of mispleading, action that come before for discovery of new or evidence want of actual notice of action to opportunity appear defend, just or of defendant a reasonable when a part existed, any plaintiff defense whole or or the want of actual notice to entry appear of the of a nonsuit for failure at trial or for dismissal prosecute diligence, cause, failure to with reasonable or for other reasonable according judges Superior to the usual rules in such cases. The Court may provide by granting upon prompt in addition rule for the trials new request parties adequately cases where the their or counsel have not protected rights during original their trial of an action.” Under Practice 42-55, judicial may authority grant petition though § Book “[t]he even appeal pending.” an petitioner, years who fifteen old at the time the murder but thirty-nine years arrest, following old at the time of his raised the claims appeal judgment conviction, rejected: in his from the each which we “(1) improperly juvenile his case was transferred from the docket matters regular Superior Court; (2) prosecution to the criminal docket of the his by year was time barred five the statute of for limitations felonies that was 1975; in (3) effect when the in victim murdered the state to failed exculpatory Brady Maryland, certain disclose in violation evidence of v.

452 petitioner’s the revised substitute

subsequently denied appeal and fol- for a new trial this petition (petition), trial petitioner lowed.5 The contends the court party culpability, his improperly concluded that third not exculpatory impeachment evidence was either newly likely produce not to discovered, credible or We in a new trial even if credible. a different result trial court did not abuse its discretion conclude the the had not satisfied the concluding petitioner trial, and, a new we affirm prerequisites accordingly, for petition. denying its judgment reasonably jury facts that the could following The of at the have found on the basis evidence adduced trial, criminal as well as the theories the petitioner’s trial, defense at were set forth petitioner raised detail this court in our resolution of great conviction. petitioner’s appeal judgment from the his- case, lengthy The unusual circumstances of this its tory, persons involved, the nature of the the number applied in this and the standard review appeal claims evidence necessitate their newly to claims of discovered p.m. 6:30 and 7:30 “Sometime between repeating. 30, 1975, the victim Thursday, October evening 1194, thereby depriving (1963), 10 2d 373 U.S. 83 S. Ct. L. Ed. [the trial; attorney (4) engaged petitioner] right a state’s of his to fair peti- during argument pervasive closing in violation of the misconduct [the trial; permitted (5) improperly right to a fair court tioner’s] prior testimony of to introduce into evidence the sworn a certain state [petitioner’s] constitutionally protected right of witness in violation of the permitted confrontation; improperly (6) the trial court the state present incriminating [petitioner] statements several for adolescents in Maine.” State made while a resident at school troubled rejected supra, Skakel, chal- v. Conn. We also 639-40. evidentiary lenges propriety rulings of the trial court. to the of several other Id., 640. petition, petitioner denied filed motion After the trial court (a), appeal, pursuant which the § to General Statutes 54-95 certification appealed judgment granted. then from the trial court appeal Appellate Court, subsequently court we transferred the this (c) pursuant § § 51-199 and- Practice Book 65-2. to General Statutes

453 in the Haven Lane, left her home on Walsh located Belle friend, with a Helen Greenwich, section of town [the of] neighbor- lx, play socialize and around Halloween, commonly was the before night hood. It to as when the night,’ evening referred ‘mischief an playful were neighborhood engage children known accompanied by The victim lx were mischief. soon nearby. other who times night, friends lived Several stopped by which group home, the Skakel was located Otter Rock Drive.6 The first time did so, the Belle Club [petitioner] dining was at the Haven Skakel, with siblings, Jr., Skakel, Rushton Julie Skakel, Skakel, Stephen Thomas John Skakel and David Skakel, their cousin James their tutor Kenneth Dowdle,7 Shakespeare. and Julie Littleton, Skakel’s friend Andrea group Skakel arrived home from dinner before 9 which p.m., at time the victim and her friends again [petitioner’s] visited the house.

“Shortly thereafter, [petitioner], joined by the vic- tim, lx [Geoffrey] Byrne, victim, friend entered one of family the Skakel vehicles, a Lincoln Continental, parked which was on the Skakels’ side driveway, to talk and listen to Skakel, music. Thomas the [petitioner’s] year brother, then seventeen old soon joined group. Sometime 9:30 p.m., group before interrupted by Skakel, Jr., Rushton and John Ska- kel, who needed to use the Lincoln Continental to drive home, they planned Dowdle where to watch a television scheduled air program p.m. at 10 Consequently, Skakel, lx, Byrne Thomas and the victim exited the car. As lx began leave the Skakel property Byrne, she observed Skakel Thomas and the victim engaging 6 Lane, diagonally “The home victim’s was located on Walsh across the home, [petitioner’s] street from which Otter Rock faced Drive.” State supra, Skakel, v. 276 Conn. 640 n.4. supra, Skakel, “Dowdle also was known as James State v. Temen.” opinion Conn. 640 n.5. References to him this are to Dowdle. driveway. horseplay at the other end

in flirtatious lx left to flirting,’ ‘a embarrassed Feeling bit go home.8 Dorothy mother, Moxley, expected

“The victim’s by 10:30 or 11 evening the victim would be home that upon that her p.m. a.m., discovering At 1:30 or about home, not she sent the victim’s had returned daughter Dorothy look her. Mox- brother, Moxley, John out to for who ley anyone thought she telephoned thereafter whereabouts, including know the victim’s might Moxley sev- family, Dorothy whom called [petitioner’s] Moxley’s Dorothy efforts to locate the victim eral times. eventually unsuccessful, and she contacted were an department, dispatched which police Greenwich missing The officer made a Moxley to the home. officer briefly surrounding persons searched report Dorothy a.m., The at about 8:30 morning, area. next asleep may the victim have fallen Moxley, believing that usually was family home that the Skakel motor [petition- driveway, went parked the Skakels’ door, The answered [petitioner] house. er’s] jeans and T- and dressed in appearing ‘hungover’ Dorothy Moxley that [petitioner] shirt. The informed home, inspection his and an the victim was not at employee a Skakel confirmed the motor home was there either. she not noon, a friend day, neighborhood at about

“Later that body large pine under a the victim’s dead discovered testimony [petitioner] was less than definitive as to whether “The accompanied brothers when drove Dowdle home or whether had his example, Shakespeare stayed For had behind with the victim and the others. accompany stayed [petitioner] did had behind and testified that the night. Shakespeare, however, was unable brothers to Dowdle’s home that she had no of her recollection and conceded to articulate the basis leaving [peti specific memory without the either the Lincoln Continental departed [petitioner] seeing car had in the house after the or tioner] Skakel, Jr., Skakel and Dowdle all testified home. Rushton John Dowdle’s evening.” accompanied [petitioner] them Dowdle’s home that the Skakel, supra, n.6. State v. 276 Conn. 641 Moxley in a area The property. tree wooded panties lying facedown, pants victim was her pulled down around her ankles. Forensic tests revealed that the victim had multiple died from blunt force trau- injuries. quantity matic head A of blood was large dis- covered in areas in a grassy region approximately two seventy feet body, from victim’s with a distinct drag path leading pools from the blood to the location where the body victim’s was found. victim likely was or near assaulted at the farther end of her circular driveway approximately and then dragged eighty feet pine under which her body subsequently tree weapon, discovered. Remnants the murder Toney Penna iron golf club, six also were found at the crime golf scene. The head of the and an club eight inch section of its shaft were found on circular driveway, approximately feet from the area where large accumulation of the victim’s blood was found. piece Another of the shaft was discovered the grassy area near large pools the two of blood. remaining part of the shaft to attached the club handle never was found. Wayne

“Harold Carver aII, forensic pathologist and the state’s chief medical examiner, testified regarding autopsy of findings original performed by then chief medical examiner M. Gross, Elliot a also forensic pathologist. Carver injuries stated the victim’s appeared with having consistent been inflicted a golf club. to addition the fatal head injuries, the victim been had stabbed the neck with a piece of the golf club shaft. to According Carver, Gross had used an ultraviolet to light presence detect the of semen on the pubic victim’s region and also taken vaginal and anal swabs. No semen was found in areas, those how- ever. in the Nothing autopsy report indicated that the ultraviolet had been light applied to the victim’s but- or parts tocks to other of body. the victim’s With respect victim death, Carver testified that the to the time of body for some time before her had been dead more opined He that the time of death found. further likely p.m. 30,1975, on October when was closer 9:30 alive, following last rather than noon the she was seen body was discovered. Because day, when her twenty-four after the dis- autopsy was hours conducted precise covery body, a more time of of the victim’s death could not be ascertained.

“Henry a scientist and the former state Lee, forensic criminalist, documents, photographs reviewed the chief compiled by the physical investigators performed partial reconstruction of the crime Lee testified investigation, scene. On the basis sequence leading nature and events likely up particular, to the victim’s death. In he indicated that kill the victim club that was used to assault and golf into from pieces had broken the force with probably force, This according which the victim had been struck. Lee, likely club, head propelled golf shaft, seventy feet, its from the location piece over the fatal to the location inside circular assault pieces subsequently discov- driveway where those were Lee, remaining piece golf According ered. sharp weapon shaft then was used as a stab the club that, light victim. Lee further testified in of the amount jeans on the inside of the victim’s of blood found likely pulled were down before panties, garments those Lee also stated that the absence the assault occurred. victim’s drippings of vertical blood on the shoes on the jeans lying ground indicated that the victim was injuries to her head perpetrator when the inflicted the neck. Lunney, “James a detective with the Greenwich day testified police department 1975, body discovered, briefly visited that the victim’s he [petitioner’s] home and noticed a barrel containing items, clubs, hallway including golf several a near Lunney the rear of home. testified that one of the a clubs, Toney iron, Penna four later was seized golf property [peti- from the with the written consent Thomas G. Keegan, captain father. tioner’s] police department detective division the Greenwich testified an examination of the seized golf golf parts club and the club at found the crime scene weapon [peti- revealed that murder came from the home. tioner’s] days

“In the and months following the victim’s mur- der, the police Greenwich conducted inter- numerous views in furtherance its criminal into investigation death. [petitioner] victim’s and his siblings were among early those interviewed in the of that stages On investigation. 15, 1975, November the [petitioner], accompanied by who was father, gave tape- recorded police interview to the Greenwich the police station. Responding inquiries his where- concerning abouts on night of the murder, the [petitioner] explained accompanied that he had his brothers and Dowdle home, to Dowdle’s which was twenty about away, minutes and watched the television ‘Monty show Python’s Flying Circus.’ According the [petitioner], he to his returned home around 10:30 or 11 p.m.,9 and went to bed about fifteen minutes later. When asked specifically about whether he left the after house went to his bedroom that night, the [petitioner] responded, ‘no.’ The [petitioner] how- acknowledged, ever, that, on other occasions, he had left his home ostensibly after to his retiring night. room years “In 1977, two following victim’s murder, [petitioner] revealed certain feelings guilt and Skakel, Jr., [petitioner’s] “Dowdle and Rushton corroborated the state spent part evening ment that he watching of that at Dowdle’s home Shakespeare, however, seeing [petitioner] television. recalled the at his home Skakel, Jr., departed after Dowdle and Rushton for Dowdle’s home in the Skakel, supra, Lincoln Continental.” State v. Conn. 276 645 n.9.

458 employed by was Larry Zicarelli, who then remorse handy family general as a driver and [petitioner’s] the appointment Zicarelli to an being man. While driven from an City, [petitioner], distraught in York the New father, that he with his told Zicarelli earlier altercation very and that he ‘either had something ‘had done bad’ country.’ the On another or out of get kill himself in stopped the were occasion, [petitioner] Zicarelli and in New York their Triborough Bridge traffic on the door, way [petitioner] ‘opened home when the the [car] . the and ran to side . . jump started to out of car the [petitioner] ran after the Zicarelli bridge.’ proceed As him into the car. Zicarelli was forced back [petitioner] exited door, again the driver’s side ing to other side of the bridge. car and ran toward the [petitioner] toward the again once hurried Zicarelh into the car. Just before Zicarelli and forced him back home, Skakel Zicarelli arrived at the [petitioner] would want to do [petitioner], ‘[W]hy [you] asked trying [petitioner] to do?’ [you what were] done, ‘if that, [you] [you] knew what had responded [I] Immediately following again.’10 would never talk to [me] employment terminated his incident, Zicarehi this 11 the Skakels. cross-examination, whether defense counsel asked Zicarelli “On incident, [petitioner] slept that, night this ‘had on the before aware responded it . . . Zicarelli mother’s dress and felt bad about dead such incident. Julie Skakel testified that he had been unaware of Bridge contemplated jumping Triborough [petitioner] off the because slept guilty having v. his deceased mother’s dress.” State he felt about supra, Skakel, n.10. Conn. 646 testimony Tucharoni, who of Matthew “The state also introduced accompanied by spring [petitioner], Rushton stated barbershop Jr., Skakel, Skakel, where came to the Greenwich and Julie inquired employed about haircut. Tucharoni then was Tucharoni hair, [petitioner’s] preparing cut he over he was testified that while Tucharoni, According [petitioner] say, going T am to kill him.’ heard ‘Why ‘you that,’ [petitioner] replied, responded, and the can’t do Julie Skakel Skakel, supra, 276 646 n.11. it ....’” State v. Conn. not? I did before 1980, “From to resident at [petitioner] the was a [Elan], facility the Elan School a residential for troubled [Poland], adolescents located in Maine. Several former deplorable Elan residents testified the conditions about institution, at the modifi- employed which a behavioral approach predicated techniques cation on controversial intimidation, and of confrontation humiliation its a result, residents. As Elan residents endured regularly peers mental the physical and abuse at hands of their Elan, and Elan staff members. While a the resident at [petitioner] frequently was confronted and interrogated about his involvement in the victim’s murder. For exam- ple, Seigen, Charles who was enrolled at Elan with the from 1978 [petitioner] testified that he recalled or attending therapy sessions, super- two three group vised by typically by a staff member and attended eight residents, during which [petitioner] the was confronted about the victim’s murder. According Seigen, [petitioner] sometimes responded to such probing annoyance. On occasions, other however, [peti- very upset, became and cried stated that he did tioner] not know if he had done it. The [petitioner] also stated in these on group that, sessions night the victim’s murder, he was ‘blind drunk’ ‘stumbling.’12 12“Seigen ‘general meetings’ Elan, also described the nature at specific According which were convened confront about residents issues. Seigen, general meeting probably you was word that ‘[a] scariest you typical general meeting, would hear when were at Elan.’ A which was staff, attended or 100 more Elan residents focused one or two singled violating residents Seigen who were out for Elan rules. recalled that [petitioner] subject general meeting of a as a result his failed attempt away facility. Seigen to run from the stated that he first learned of [petitioner’s] possible involvement in the victim’s when murder it was Joseph general meeting by Ricci, announced at a Elan’s executive director. Arnold, resident, particu that, Elizabeth another former Elan testified at general meeting, approximately lar hours, which lasted three Ricci continu ously [petitioner] had confronted the about various that four issues and or [petitioner] boxing ring. five Elan residents ‘brutalized’ the in a Other former residents also of Elan testified about the details of the torment that the [petitioner] meeting, including had endured at this accusations leveled against [petitioner] [petitioner’s] that he had killed the victim. The initial

“Dorothy Rogers, Elan, another former resident occasion, [peti- she testified on one when [peti- an function, were Elan social talking tioner] drinking night her that he had been on the told tioner] that could not recall whether of the murder and he death. The [petitioner] he was involved in the victim’s family that his had enrolled explained Rogers further to may he have mur- him at Elan because feared that in a and wanted him location far dered the victim Cole- investigating Gregory from the officers. removed a Elan 1978 to testified man, resident at from he had with the exchange [petitioner] an had about [petitioner] ‘guard’ over the fol- while Coleman stood escape attempt failed from lowing [petitioner’s] the the confided conversation, [petitioner] Elan. this During rejected girl who had murdering in Coleman about Coleman, the According [petitioner] his advances. to girl golf the with a club in a wooded killing had admitted he hit her caused area, that the force with which had had half, to and that he had returned golf the club break later it. John body days the two and masturbated on to Elan, former resident of recounted Higgins, another [petitioner] that the had emotional admissions certain duty guard while the two were on one made him dormitory the men’s at Elan. In porch on the night [petitioner] the had told particular, Higgins testified that ‘party there was a murder, the that, night him or at the home. [petitioner’s] some kind another’ told remembered [petitioner] Higgins The also club, his for a garage looking golf rummaging through deny response interrogation was his involvement in the murder. this however, [petitioner] stated, boxing ring, ‘I rounds in After several response questioning regarding don’t his know’ or ‘I remember’ don’t Elan, During course of his enrollment at in the murder. involvement sign neck, large [petitioner] wear his was forced to cardboard around also why sign read, punishment at ‘Confront me on form of Elan. another Skakel, supra, Moxley,’ State or words to that effect.” v. I murdered Martha 276 Conn. 647 n.12. with the

running through seeing woods club and pine Higgins trees. further as the stated conversa- continued, tion [petitioner’s] acknowledgment culpability in the victim’s murder from progressed ‘he know it’ to may didn’t whether he did ‘he have done finally it’ to ‘he have did it.’ it,’ must done to ‘I Arnold Dunn, “Elizabeth and Alice both of whom had stay attended Elan during [petitioner’s] facility, inculpatory also testified about certain state- ments the [petitioner] had made to Both them. testified the [petitioner] expressed uncertainty had as to he or whether his brother had victim. murdered the Arnold therapy also recalled a which group session [petitioner], upon questioned being about vic- murder, tim’s very stated that drunk ‘[h]e some night, sort of blackout’ that that his brother had around’ with his that his ‘girlfriend,’ and ‘fool[ed] brother had stolen her him. Dunn, from who graduated from in subsequently Elan 1978 and became staff there, member employed testified that while she was at Elan, [petitioner] the in stated he was not ‘his normal state’ on the night of the murder.

“Thereafter, in the of 1987, [petitioner] summer the told Meredith, Michael a former Elan resident who was staying temporarily the [petitioner’s] that, on home, the the night murder, victim’s he had climbed a tree Moxley on the property and masturbated in the tree while the watching victim through her window. to According Meredith, he first learned of the victim’s

murder in this conversation. The also [petitioner] told Meredith that while he was saw tree, he his brother Thomas Moxley Skakel walk across prop- erty toward victim’s but home Skakel Thomas had not seen him in the tree. The [petitioner] related a similar story to Andrew a close Pugh, friend, childhood when saw the two one another 1991. The [petitioner] expressed had a desire to renew their which friendship, the victim’s murder. an following had faded

gradually [petitioner’s] to concerns about the Pugh’s effort ease death, [petitioner] the victim’s involvement kill he did not the victim but men- assured Pugh night masturbated in a tree on the tioned that understood that tree Pugh that she was murdered. [petitioner] referred was tree under to which the body was discovered. which the victim’s [petitioner’s] descriptive “The account of the most murder in 1997 from came night activities on [petitioner] between the tape-recorded] conversation [a a writer Hoffman, collaborating Richard who [petitioner’s] on a with the book about [petitioner] explained tape [petitioner] On [recording], life. that, of the victim’s evening Hoffman earlier in the victim, who was murder, he had invited seated car, accompany in his father’s him [petitioner] Monty Python Flying his to watch the cousin’s house victim show. The declined the invita- Circus television curfew, of her and the two instead made tion because [peti- night. ‘trick the next plans treating’ or go left for Dowdle’s home with broth- thereafter tioner] Jr., Skakel, John as well as Skakel, Rushton ers Dowdle. told Hoffman after [petitioner] returning

“The house, home Dowdle’s he had walked to his own from Upon people. house in search of various through the closed, to his sister’s room was that the door observing friend, had sister’s Shake- he *remember[ed] [his . . . .’He then indicated that speare] gone had home into there was he had ‘the master bedroom gone [but] nobody was nobody there, on but the [television] shortly [petitioner] upstairs went to bed there.’ The ‘homy’ to spy but he became and decided thereafter, ‘lady’ [petitioner] on a who lived on Walsh Lane. person’s and went to this then ‘snuck out’ of his house through her her window. Unsuc- home, hoping see endeavor, cessful in that . thought, this . . ‘[f]uck me, go, Martha likes I’ll I’ll a kiss go get from Martha.’ [petitioner] proceeded . . . The then to the victim’s home, a climbed tree near the victim’s front door and thirty masturbated the tree for Shortly about seconds. thereafter, clarity ‘a moment of came head,’ into [his] the [petitioner] down from climbed the tree and walked way home, back home. On his he threw rocks dark, repeatedly into yelling, ‘Who’s in there?’ He previously and his Mends had done this while shooting BB guns into the dark. The next [peti- morning, awoke to ‘[Dorothy] Moxley saying “Michael tioner] ’ . you . . have seen [petitioner] Martha?” The thought to himself, my God, ‘Oh did see me last At night?’ moment, the [petitioner] Hoffman, told he ‘remem- just ber panic.’ having feeling [ed] “The state also adduced evidence establishing that [petitioner], who was infatuated with victim, grown had resentful her friendship flirtatious with brother, older Thomas Skakel, whom he considered his nemesis. According to who in Pugh, 1975 was friendly victim and the [petitioner], [peti- had ‘told that he [Pugh] quite liked Martha a bit tioner] and had a crush on her.’ Pugh also testified that the [petitioner] had him told that ‘he would have liked have relationship with her.’ Pugh testified that he [petitioner] observed the and the victim engage in ‘horseplay, . roughhousing, fooling around . . [and] kissing one time in the family motor [Skakel home].’ respect With to Thomas Skakel’s relationship with the victim, Jacqueline O’Hara, Wettenhall a neighborhood friend of victim, recounted observing flirtatious con- duct between the victim and Thomas Skakel in months leading up to the victim’s death. Entries recorded in the diary victim’s in the preced- two months her ing murder disclosed the victim’s friendship with [petitioner] Skakel, Thomas and also revealed 464 with relationship her flirtatious nature of sometimes lx testi- addition, Skakel. In victim’s

Thomas friend] [the and Thomas Ska- fied had observed the victim that she she horseplay the last time kel in flirtatious engaging one of the sneakers Moreover, saw the victim alive. body her was was when recov- wearing that the victim written on it. had the name ‘Tom’ ered raised an alibi defense at trial. [petitioner] “The mur- he that the victim had been particular, claimed 30, 1975,13 p.m. at 10 on October approximately dered twenty minutes home, he was at Dowdle’s some scene, [peti- at that time. The away from the murder party culpability defense, third also raised a tioner] likely vic- perpetrator as a pointing to Littleton Littleton, who had hired as fact, murder. In been tim’s up by family, had taken part-time tutor Skakel 30, 1975, at Skakel home on October residence slept had day alive, that the victim was last seen night. children that Littleton testi- there the Skakel at 9 returning p.m., fied after home from dinner all outside night, stepping he remained at house p.m. only 9:30 briefly approximately investigate testimony by adduced addition, disturbance.14 In to mani- [petitioner] Littleton, revealed that who began problems in the psychiatric fest serious and behavioral may years murder, statement, have made a following years implicated killing, after the in which he several emphatically in the Littleton denied that himself crime. how- anything death, to do with the victim’s had had 13 testimony Joseph petitioner’s] from Alexander counsel adduced “[The Jachimczyk, Houston, Texas, pathologist who a forensic from concluded likely p.m. time of the victim’s death most around October testimony 30,1975. Jachimczyk’s testimony of several was bolstered Dorothy Moxley, Skakel, people, including Ix David heard vicinity dogs approximately barking time.” in the of the crime scene at supra, Skakel, n.14. State v. Conn. 652 Littleton, “According to he was unable to discern the cause of the Skakel, supra, 276 653 n.15. disturbance.” State v. Conn.

465 v. Skakel, supra, ever.” State 276 Conn. 640-53. The jury rejected the petitioner’s theories, returning a guilty verdict on of charge murder, court, and the trial Kavanewsky, J., judgment rendered in accordance with Id., the verdict.15 639. this judg- court’s decision

Following affirming id., evidentiary of conviction; 770; ment were hearings on petitioner’s petition held Although a new trial. petition counts, petitioner had set forth nine proceeded only of court, four those counts. The trial Karazin, J., construed those counts follows. Count newly one alleged discovered party evidence of third culpability, specifically, “Tony” statements from Gitano Biyant’s two of implicating former high school classmates, Adolph Hasbrouck and Burton Tinsley, the victim’s murder. alleged newly Count two discov- ered evidence of directly witnesses who contradicted Coleman’s testimony petitioner that the had confessed to killing the victim. Count six alleged newly discovered exculpatory evidence that the state had failed to dis- close, specifically, a composite drawing person of seen in Belle Haven on the night the murder whom the petitioner claims Littleton,16 police resembles suspect profile reports on Thomas Skakel and Littleton, and lapse “time data” chronicling actions, Littleton’s includ- ing charged and uncharged conduct, criminal before and after the victim’s newly murder. Count nine alleged discovered evidence to a relating pact “secret and book deal between the state’s lead investigator, Garr, Frank and author Leonard Levitt.”17The answer, state filed an 15 petitioner period The court sentenced the to a incarceration years twenty to life. petition allegations regarding composite Count five of the set forth drawing. petitioner subsequently but, count, withdrew that because he regarding drawing had offered evidence in connection with his claim pattern of a petition, of nondisclosure the state under count six part the court addressed this evidence as of that count. petition any specific Count nine allegations did not set forth relating Garr, deal, realleged Levitt or the book but instead all of the allegations. all of the material After

essentially denying review of all of evidence adduced hearing request the trial court denied the petition, relation to the count. for a new trial as to each the trial court’s appeal, challenges On a new trial on each of the petition denial of his for trial raised. We conclude that the grounds previously we and, therefore, its discretion court did not abuse facts will be set forth judgment. affirm the Additional necessary. as govern legal principles with the general

We begin petitioner’s claims. Pursuant to our of the resolution may petition a criminal defendant 52-270, convicted § newly Superior for a new trial on the basis Court trial Practice Book 42-55. A § discovered evidence. See is the stan governed on that ground court’s decision State, 429, 434, v. 202 Conn. Asherman set forth in dard Shabazz in v. further refined 521 A.2d 578 (1987), State, 811, 827-28, 792 (2002). Conn. A.2d 797 Under justified in Asherman standard, granting a court is demon petition a for a new trial when support (1) offered in thereof: that the evidence strates newly that it could not have been is discovered such aspects eight preceding allegations counts. limited Garr’s involve- in the investigation three and five of the ment in were referenced counts petition; or the book no counts to either Levitt there were references Nonetheless, clear court concluded that became deal. because the trial “[i]t evolved, primarily petition focused for new trial that [count nine] as the a objection, conduct,” Garr, over the state’s on . . . the book and Garr’s broadly sufficiently drafted to allow it to that count to be court construed as an book deal. The state has raised evidence adduced to the consider petition ground affirming the trial court’s denial alternate for respect petitioner’s allegations relating to book to this evidence that pleaded in were not deal not have been considered because should actually allegations pleaded petition to and did not relate back the revised satisfy We decline to address this alternate the statute limitations. opinion however, light part ground, our conclusion in n this newly properly book deal was not discov- concluded trial court ered evidence. despite dili previously

discovered the exercise of due gence; (2) would be material issues on a new cumulative; likely produce is trial; (3) (4) a of new trial. different result the event a Asherman v. 434. “This strict standard is State, supra, meant equitable principle effectuate the once underlying final, is rendered it is to judgment be considered by posttrial should not be except disturbed motions quotation reason.” omit compelling (Internal marks ted.) Id.

“The roots of this test can be traced back as far as 1850, petition when this court first stated that a for a newly new will not be if the granted discovered have trial, by evidence could been known before the great if diligence merely or the evidence is cumulative .... Graves, Waller v. 20 Conn. (1850). v. Platt, Parsons 37 Conn. 564 563, (1871), we added the requirements evidence, fact, newly that the in be discovered; that it be if material; that, a new trial were a granted produced. different result would be . . . Id., in Finally, State, 565. v. Hamlin 48 Conn. 92, 93-94 we (1880), articulated the test in virtually terms identi cal to we adopted that which later in Asherman. See also State, Smith v. 202, 141 Conn. 104 761 208, A.2d v. (1954); Taborsky State, 142 619, 623, Conn. 116 A.2d 433 v. (1955); Scanlon, Turner 146 149, 163, Conn. 148 A.2d 334 (1959); State, 385, Lombardo v. 172 391, Conn. 374 A.2d 1065 v. (1977); Lichtenheim, Burr 190 Conn. 351, 355, 460 A.2d 1290 (1983).” (Internal quotation marks omitted.) Shabazz v. State, supra, 259 Conn. 821.

We further explained Shabazz that, determining a produced whether different result be would in newa trial, necessarily a trial court must in some form engage of credibility analysis. Id., 827. “The trial must court always newly consider the discovered of context the evidence presented the original trial. . . . [Thus, the trial court determines that the evi- if]

468 sufficiently jury if a credible so second is

dence original it with all together consider were to or yield would a different result evidence, probably it the fourth element injustice,18 avoid an otherwise Asherman test (Citation omitted.) would be satisfied.” “different, mean that result,” we By 827-28. Id., likely acquittal be to result in evidence would new merely might it cause one or petitioner, peti- doubt about the jurors to have a reasonable more per- be evidence which Id., (“it must guilt. tioner’s jury guilty” would find him not judge suades the State, Lombardo v. quotation omitted]); marks [internal see also Asherman v. (same); 172 Conn. 391 supra, State, supra, whether (considering 202 Conn. led to probably would have admission it is well settled Finally and acquittal). significantly, evidence satisfies the aforementioned whether the discretion, and the trial court’s sole within standard set aside on the trial court will be judgment of discretion. only if it reflects a clear abuse appeal Ridolfi, State, 434; v. Asherman v. supra, Ridolfi 377, 379, (1979). 423 A.2d 85 Conn.

I petitioner’s claim that the trial We first turn to the that he is not entitled to a improperly concluded court inculpating statements trial on the basis new petitioner murder. The persons in the victim’s two other Bryant’s of the events of October account contends motive, opportunity credibly establishes 30, 1975, schoolmates, former means for two murder. Tinsley, to have committed the Hasbrouck and disagree. We phrase petitioner “otherwise avoid relies on To the extent that independent State, supra, 828, injustice” v. 259 Conn. as an from Shabazz

an opinion trial, which we address ground new see footnote 41 of this for a that contention.

A The record discloses the additional undis- following puted procedural history. After petitioner facts was convicted, Mills, Bryant’s Crawford former Green- wich schoolmate, contacted the cousin, Robert Kennedy, Jr., F. with the following information the victim’s homicide. regarding According Mills, to Bryant had said knew who had killed victim, petitioner, but, rather, and that it was not the it was Tinsley. Bryant reluctantly Hasbrouck and had agreed relay allow to Mills to his account to others but told Mills that he did not want his name disclosed and would not come forward with the information himself. Mills initially not Bryant’s identity, did disclose but ultimately decided to do so when no one would credit the informa- tion knowing Kennedy without the source. then con- and, tacted following telephone several conversations, Bryant to to agreed videotaped submit interview. On 24, 2003, private Vito August Colucci, a investigator hired, had conducted the interview. When Bryant deposed pursuant to a sub- poena on August 25, 2006, however, he invoked his fifth amendment right response incriminate himself in every question relating tangentially even to the events of October 1975. Although Tinsley Hasbrouck and initially spoken had willingly Kennedy and Colucci occasions, they on several after became aware that implicated they them the murder, too invoked their fifth testify amendment not to right at depositions.19 their Tinsley Accordingly, Bryant, subject neither nor Hasbrouck were cross-examination, testify hearing nor were available to at the on the petition response question argument for a new trial. In to a oral before why Bryant immunity this court as to the state had not offered in order to compel testify, attorney explained him to the state’s it is not the state’s

practice provide immunity such it when deems a witness’ account to be wholly incredible. trial, a for new hearing petition

Prior to seeking preclude in limine a motion the state filed on the Bryant’s videotaped statements admission qualify did not hearsay were and ground they hearsay rule. The any exception to the under admission admissibility of the of the parties that the issue agreed court’s until after the would be reserved statements petition. videotape at the on the hearing of the review 24, 2003 August court reviewed the Thereafter, testimony heard from videotaped Bryant, interview of documentary evidence witnesses and reviewed various any Bryant’s issuing rulings. account before relating to the fol- interview, offered videotaped In the leading up following the events and lowing account of the time of the 1975. At evening October in years and murder, Bryant living was fourteen old School. City, Hughes High where he attended New York years, however, he had three school previous For the private (Brunswick), Brunswick School attended family with Greenwich, lived friend and school Bryant had been class- petitioner and Greenwich. The the two were not friends. After Brunswick, but mates York, New he continued to socialize Bryant moved to Belle and people around Haven many young with Walker enclaves, particular, Neal other Greenwich Byrne. and who Tinsley were friends of

Hasbrouck and School, although were High attended Hughes also accompanied Bryant. than The two year about a older mid- Belle four or five times between Bryant to Haven acquainted 30,1975. September October Greenwich, time but living the victim from his Tinsley mid-September her in first met Hasbrouck Hasbrouck never Although fair in Greenwich. at a street victim, became to the made direct overtures Bry- make with her. He would comments “obsessed” to have “[s]omeday going ant others [he was] as well more her,” comment, as variations of that vulgar and, occasions, on several that wanted go stated “to her,” Bryant caveman on which meant that Has- away by sexually would her drag brouck the hair and her. assault 30,1975, night murder,

On October of the victim’s Bryant took train to Greenwich with Hasbrouck Tinsley, and Belle heading into Haven somewhere p.m. They stopped by between 6 and 6:20 Walker’s at approximately p.m., house or 6:40 but Walker 6:30 not able leave time was at that and he told them to come back later. Bryant, Tinsley Hasbrouck and then to the house door, inside, helped walked next went packs themselves to several six of beer in the refrigera- proceeded tor to Byrne’s Byrne and house. then accom- panied they the three others as walked about neighborhood engaging mischief, various acts of such pumpkins. they they as smashing walked, As saw other teenagers out in the neighborhood, lx and including Lisa Rader Edwards.

Bryant and group the rest of walked behind the residence, Skakel where golf found some clubs strewn about that each of them Thereafter, handled. Tinsley Hasbrouck and walked around Belle Haven car- rying golf Bryant clubs as walking sticks. proceeded to

others a large meadow, located behind property, Skakel young people where the neigh- commonly borhood to smoke and congregated drink without seen being security the Belle Haven guard. Bryant and the packs others drank several six of beer marijuana. and smoked approximately At 8:30 to 8:45 p.m., saw the victim, well as the petitioner, at the meadow. Thomas Skakel also came and went, per waved to Skakel, who, Julie her usual practice, stay did not By at the meadow to socialize. 9 p.m., about of ten group teenagers, to fifteen includ- Bryant, Tinsley ing and Hasbrouck, had congregated Tinsley at and Has- in a circle the meadow. together and sexual overtures to some brouck made comments there, things which made uncomfortable. girls time, around that but became “fed The victim there on, the meadow and went up” going with what was left Skakel standing by that was resi- group over points and included various dence Thomas Skakel.

Bryant First, to for two reasons. decided leave that he would catch the last train had told his mother Tinsley home, p.m. Second, left at 9:35 or 9:40 which control,” making had “out of gotten and Hasbrouck Bryant uncomfortable, such as: comments that made just into bitches?”; got get “Where are the “We’ve unsatisfied”; . . . of here going I’m not out something my me a and “I’ve caveman going get girl”; got “I’m . and somebody pull . . and I’m going grab club While by hair and do what cavemen do.” mak- them the Tinsley had comments, and Hasbrouck these ing they taken from Skakel golf clubs in hand that had Bryant feared with the combination of property. personality types of his two alcohol, drugs Bryant left the friends, possible. group, anything a ride to the train station from caught hitchhiked Haven, a he knew to be from Belle but person whom Tinsley went home. and Has- identify, could not Byrne’s stayed house. night brouck Tinsley Monday Bryant When Hasbrouck and saw it. murder, they told “We did We him, following Although neither mentioned achieved the caveman.” they talking knew that were name, the victim her, with both Hasbrouck’s infatuation her, given about Bryant’s mother well the New York Times article as days In the shown him about the murder. Tinsley to brag Hasbrouck and continued followed, fantasy taking girl achieved their having about style,” club, “caveman without meaning the victim’s expressly mentioning name. petition its memorandum of decision denying trial,

for a new the trial court first issue addressed the Bryant’s of whether statements were admissible. determined, trial court accordance with factors forth rules of evidence, complete set under the that “[a] analysis of both the time that the statements were made people made, and the to whom were considered unique present of the context circumstances of the case, meets the minimum threshold of trustworthiness to warrant admission of statements as a against penal statement interest.” (Emphasis added.) See Conn. Code Evid. (4).20 8-6§ respect

With to the the trial timing statements, Tinsley court noted that and Hasbrouck had their made alleged immediately statements after the crime, supported which of trustworthiness those Although Bryant’s statements. recounting of those statements to had twenty-five Mills been more than years later, “[bjecause court determined that, length of Bryant the state’s . . investigation . had an keep incentive to himself of out a case that reason- he ably thought would never be . . . solved. after [E]ven was arrested trial, [Bryant] and to brought still to refused come forward because there thought provides Section 8-6 the Connecticut Code Evidence in relevant part: hearsay following “The are not excluded rule if the declarant as a . . . unavailable witness “(4) against penal trustworthy against Statement A interest. statement penal that, making, subject interest at the time of its so tended far liability person declarant to criminal that a reasonable in the declarant’s position person would not have made the statement unless the believed it determining penal be against true. In the trustworthiness of a statement interest, (A) shall court consider the time the statement was made person made, (B) and the to whom the statement was the existence of corroborating case, (C) evidence in the the extent to which the statement against penal was the declarant’s interest. . . .” be would convicted. way petitioner] no

was [the year male who Biyant old black . . . was a fourteen that, by his information own suddenly faced with was penal . . . .” clearly was his interest admission, against Bryant’s knowl- reasons, combined with For all these murder,21 of limitations on that there is no statute edge story his his to tell concluded that reluctance corut reasonable. was person Bryant to whom

The court then focused story. initially The court concluded had related regarding his first disclosure Bryant had made because 30, 1975, on October the details of his whereabouts to the facts with whom he “shared a connection Mills, experiences at back to their shared case, dating of this murder,” leading up during Belle Haven time were Kennedy Colucci, the statements then to support As for the minimum trustworthy. further to warrant admission of trustworthiness threshold also noted that Colucci statement, the court he was con- being sought informed was aware proceeding, with a court nection videotaped and that it were being that his statements anticipa- was made in recording being clear that the it presented tion court. having Bry- to which Next, the court examined the extent by other evidence. statements were corroborated ant’s “Bryant went following facts: highlighted The court was with the School, and classmates to the Brunswick wit- Belle Haven Several neighborhood. children in the [Walker], nesses, including confirm[ed] [Mills] wit- Bryant hearing, at Haven. At the socialized Belle Bryant he was indicated that nesses confirmed] One of the murder. present night in Belle Haven on school, Bryant Kennedy graduated law but never that he had from told practiced Bryant’s confirmed law. mother had bar examination or taken the graduated from law school. that he witness seeing [Tinsley] recail[ed] [Hasbrouck] Bryant Belle Haven with the fall 1975. during of Both Tinsley [Kennedy] Hasbrouck and admitted that to Bryant had been in Belle Haven with on several occa- descriptions also provide sions. detailed of [d] layout Haven, of Belle including accurate recitations where people neighborhood lived. Bryant, to “According feet, Hasbrouck was two [six inches tall], pounds least 200 on the date homicide, ‘veiy stated that strong.’ [Has- victim], obsessed and ‘wanted brouck] [the go her,’ to caveman he meaning her, that would club away by her drag sexually the hair and assault her. On night murder, Bryant he, stated that Has- Tinsley brouck and walked around Belle Haven with clubs from the golf residence, Skakel with Hasbrouck he had stating that his ‘caveman club’ and that he would not leave Belle Haven unsatisfied. The victim had suf- fered multiple injuries and severe to her head and stab wounds to her neck which were consistent with being caused a piece of club golf shaft. Pieces the golf club found near the body victim’s were the same brand golf found club at the Skakel residence. Evidence presented at the criminal trial shows that these clubs were commonly left about the Skakel property. Bryant’s

“Corroboration of statements be can found in the very reason is unavailable testify. present case, Bryant, Tinsley Hasbrouck and have all invoked their fifth right amendment incrimi- nate themselves after being subpoenas served with testify deposition.” at a (Emphasis added.)

Finally, the trial court turned whether statements were against penal Bry- interest. Because placed ant had himself in Belle Haven on night the murder, company in the of the victim, discussed Tinsley, victim with Hasbrouck

assaulting to the belonging clubs possession golf had been Bryant’s concluded that the trial court family, Skakel penal light interest. against were his statements ruled that statements conclusions, the court these self-serving and his state- evidence, admitted into “are admissibility. not their weight,” ments their go turned to the issue whether The trial court then a new trial on the basis petitioner was entitled to the court focused on Specifically, of this evidence. under the whether the statements were Asherman, probably would produce a prong fourth that there upon retrial. The court noted different result between the standard it difference” was “substantial which it admissibility question, applied applied to be call,” and the standard viewed as “close that, in under Asherman. court further noted accor- State, supra, 825-28, 259 Conn. Shabazz v. dance in a required engage the court to the latter standard Ultimately, credibility determination. threshold statements, although concluded that court admissible, were not credible. explained its conclusion as follows: “On

The court merely claims of are analysis, [Bryant’s statements] accompanied [Bryant’s] alibi. information of a crime minimally appear to be inter- against The statements Under the Shabazz review, the statements were est. junior school classmates with high made to two former only over the whom maintained casual contact within his information years. acquired Although offense, lawyer, kept it to days he, of the as a trained century. finally On quarter of a himself for over one upon anonymity. He did not come he insisted disclosing, only happened it when voluntarily, rather, forward of this information. [Kennedy] informed [Mills] Bryant’s claim is minimal. “The corroboration for knowledge indication of the There some Haven, of it geography Belle but is clear that he was persons Bryant’s there before. Of all the circle of acquaintances time, Greenwich at the of none them other than Walker and Mills recalled his compan- two ions. Not even any closest friends have [the victim’s] any recollection of association between [the victim] Bryant, Tinsley. and Hasbrouck and puts No one [the in the company companions and his victim] of on the night 30,1975. testimony October is There no of that the company any three were her other occa- sion. Importantly, testify witnesses toas [the victim’s] p.m. activities until 9:30 No one has recall ever seeing companions Bryant and his in Belle Haven on night the the murder.

“The claim that Hasbrouck Tinsley went ‘cave- style’ supported by man is not the evidence. There was no evidence of being by the victim dragged the hair. Missing Bryant’s from is statement anything concerning breaking or [golf] club stabbing testimony victim. The any genuine absent corroboration. credibility, It lacks therefore, would produce result in a (Empha- new trial.” different sis added.)

B With mind, these facts we now turn to specific by petitioner contentions made support of his claim that trial court improperly petition denied his for a Bryant’s new on the basis of statements of third party culpability. petitioner contends that the trial court’s conclusion Bryant’s statements were sufficiently trustworthy to be admitted under the hear- say exception against for declarations penal interest is inconsistent its conclusion that the statements were not Although credible. acknowledges may trial court make a credibility minimum determina- tion under v. State, supra, Shabazz 827-28, 259 Conn. concluded that, when the court contends under this were admissible statements necessarily his determined that

hearsay exception, it He far- credibility threshold. statements satisfied this findings that the trial court’s favorable ther contends question of admissi- the factors relevant to regarding penal interest— bility corroboration, against — court’s unfavor- were contradicted improperly deciding when same factors findings able on those whether the Asherman test for new trial been met. We disagree. this parties’ dispute as to evidence

We note that of the Asherman solely prong focuses on the fourth is dispute that this evidence as the state does not test, would be mate- newly discovered, noncumulative and review The standard under which we rial if credible. respect With to his claim is twofold. not properly engage trial court could claim that the it credibility once determined that assessment trustworthy admissible, sufficiently be applied and, there- his is to the standard challenge legal State, Shabazz v. 259 plenary. supra, our review is fore, Co., v. Foremost Foods Kubeck 190 Conn. 820; Conn. respect 669-70, (1983). A.2d With 667, 461 1380 ultimate conclusion that challenge to the trial court’s credible, that conclusion Bryant’s statements were State, for an abuse of discretion. Shabazz v. is reviewed 820. supra,

1 Bry- whether, concluding after question sufficiently trustworthy be statements were ant’s evidence, properly trial court could into admitted credibility analysis examining in a resolved engage played in each making the trial court the roles determined that When the trial court determination. admissible, was engaging were it Bryant’s statements

479 in a gatekeeping function. See v. Schiappa, State 132, 163 n.39, Conn. 728 A.2d 466, denied, cert. 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d v. State (1999); Gordon, App. 84 Conn. 519, 529-30, 854 A.2d cert. denied, 271 Conn. 941, 861 A.2d 516 The trial (2004). simply court determined that the evidence met the threshold that jury would allow the to consider evidence. It was not acting the trier of fact to deter mine whether jury would find the evidence credib le.22 See State v. Schiappa, supra, n.26 (“[i]n whether the determining threshold level of trustworthi ness satisfied admissibility of a statement [is] [for penal against interest offered exculpate a defendant] the trial court does not have to find it to absolutely be trustworthy because if this so, province were jury as the finder of fact and weigher credibility entirely would be invaded” quotation marks [internal omitted]); Bryant, State v. 202 Conn. 676, 696-97, 523 A.2d 451 (1987) (“where the parts of a disserving state penal ment [against are intertwined with self- interest] serving parts, it is prudential more to admit the entire statement and let the trier of fact assess evidentiary its quality in the complete context”).

participants adequate of added; 577 A.2d 1043 on whether the defendant could have been convicted on the same available an generally 583, support ^[1978] 22 the crime informant This conclusion is not 91S. Ct. § internal a 3.3, p. verification of the subscribed to the view finding in a crime where at least some itself 2075, 29 carry (1990). quotation 523. This of have been their own indicia of probable L. Ed. 2d 723 “The existence of marks principle contrary corroborated reliability cause. United States v. omitted.) that admissions (1971); has to the of an infoimant’s been probable State v. credibility 1 significant independently [W.] proposition applied by LaFave, Velez, cause does not . . . turn against penal —sufficient Harris, details 215 Conn. Search and this court to find .. naming . “[c]ourts of 403 U.S. .’’(Emphasis his account interest at least to 667, 674, of other Seizure have 573, probable requires . . proof by pre evidence. . of cause [P]roof less than a ponderance (Internal quotation of the evidence.” omitted.) marks v. State James, 395, 415, 261 Conn. (2002); Marra, 802 A.2d 820 accord State v. 222 506, 513, (1992) (“[t]he quantum Conn. necessary 610 A.2d 1113 of evidence probable suspicion, substantially establish cause exceeds mere but is required quotation less than that for conviction” omitted]). marks [internal 480 hearsay other previously explained that,

We have like a determination exceptions witnesses, for unavailable party against penal interest third declaration trustworthy simply to be admitted means sufficiently equivalent reasonably oath and “that safeguards added; test cross-examination (Emphasis exist.” State v. Lopez, 254 quotation omitted.) internal marks Ferguson 757 542 accord 309, 316, (2000); Conn. A.2d 232, A.2d 432 Smazer, 226, (1963) v. 151 Conn. 196 pecuniary Nei party against interest). declaration (third authority of which we are ther nor other this court mere proposition that the fact that supports aware subject to cross-examination witness is under oath find the witness has require jury would credibility. the fact that even a Nor does modicum test applies more declarations stringent a different or hearsay exceptions. interest than other against penal simply counterbalances stringent The more test for such statements to ensure risk of fabrication greater equivalent as other safeguards have the same the fact finder’s when admitted for hearsay statements 319 State Lopez, supra, See v. (“[t]hird consideration. are exculpate suspect an accused party statements that Rivera, State v. danger fabrication”); because of the 71, 571 58, (1992) (requirement 221 Conn. 602 A.2d circumventing fabrica “puipose is for corroboration DeFreitas, 431, 452 tion”); State n.9, v. 179 Conn. party third decla (admissibility A.2d 799 test for (1980) circumscribe fabrication designed rations is “[t]o v. Lynch, State reliability”); ensure the [statement’s] A.2d 230 test App. 386, (admissibility Conn. is on accused based party exculpating third declarations fabrication”), collusion dangers about the “concem[s] A.2d 63 denied, (1990). 216 Conn. rt. ce admissibility, trial court determining when Thus, any, if a weight, makes what no determination Indeed, this to the extent that jury evidence. might give clearly statements most against penal interest are those Tinsley attributes to and Hasbrouck before and after the murder, it is well settled that, when a witness testifies as to against declarations interest by a party, third “a trial may court not consider the credibility of the witness in testifying determining trustworthiness of a penal declaration against interest.” v. Rivera, State 268 Conn. 351, 372, 844 A.2d 191 (2004); accord State v. Hernandez, 204 Conn. 377, 391, 528 A.2d 794 (1987).

By contrast, the trial court’s role applying the fourth prong the Asherman test is from a different vantage point. In Shabazz v. State, supra, 259 Conn. 822-24, explained: this court “Prior case law confirms that atrial court must in some engage credibility form of analysis in order to determine, under Asherman, whether newly discovered evidence offered in sup- different, port petition of a likely produce a result on retrial. . . . a new trial should be granted

“[WJhether does not turn on whether the evidence is such that the jury could extend credibility to it. .. . The [petitioner] persuade must the court that the new evidence he sub mits will probably, merely not possibly, result in a differ ent verdict at a new trial .... It is not sufficient for him to bring new evidence from which jury could find him not guilty must be per evidence which —it judge suades the that a jury [probably] would him find guilty. . . . This articulation of burden of proof assigns to the court, trial in the first instance, the responsibility of evaluating credibility order to decide properly whether a new produce would a different result. In elaborat ing point, this we explicitly approved of Judge [have] Cardozo’s opinion concurring People v. Shilitano, 218 N.Y. 161, 180, 112N.E. 733 (1916), wherein he stated that a judge, faced with conflicting stories petition [on for abandon the search trial],

for a new should [not] . . . jury. it to a it truth and turn over [Rather] [is] duty try facts, of trial to determine judge lay. of the truth best he where likelihood [can] of liberty upon the shoulders ... He not at shift [is] omitted; responsibility.” jury (Citations his own another omitted.) marks emphasis quotation in internal original; “Although state: in Shabazz went court credibility a have previously . . . we established analy- necessary part is of a trial court’s determination a we have prong Asherman, of never sis under the fourth of determination. proper parameters such a defined the to which a trial In this we note that the extent regard, newly credibility of the properly assesses the court in two informed, part, large discovered evidence and, often, competing First, interests. well-defined final preserving judgments a interest general state has fairly have obtained and of conviction that been origi- appropriate given deference is ensuring deciding question guilt of nal trial as the forum fallibility within the limits of human or innocence by the interest, has an shared Second, the a con- judiciary, ensuring wrongful state and the . . . viction does stand. judge’s passing role in

“Our formulation trial must credibility newly on the of discovered these two inter- appropriate strike the balance between hand, were limit trial If, ests. on the one we newly to a whether the solely court determination in a evidence would be admissible new discovered verdict, might and whether it result in different stripped legitimate would be its trial court fact- petition rele- on the be finding [would] function gatekeeper the role the evidence. Such gated to unduly judgments render conviction result would attacks, susceptible thereby giving to collateral insuffi- interest weight legitimate cient to the state’s final- ity. Alternatively, to hold were we that the trial court always as the sole credibility acts final and arbiter of evaluating in to new alleged justify trial, a we would be inter- impeding petitioner’s legitimate in establishing est that a does wrongful conviction not . stand. . .

“We in that, give therefore conclude order to due weight important and consideration these interests, provide and in flexibility order sufficient to accom- modate wide variety types newly of discovered may in a support petition evidence that be offered trial, for a trial new courts should utilize following approach when fourth applying the element of Ash- erman The trial always test. court must consider the newly in discovered evidence the evi- context of presented dence in doing, trial. In so it original must determine, first, passes that the evidence a minimum is, threshold. credibility if, That in the trial court’s opinion, the newly simply discovered evidence is not may credible, legitimately that, it determine even if presented to a new a jury trial, probably second it yield would not result and may deny the different petition on that If, however, basis. ... court the trial that the sufficiently determines evidence is credible so jury if a second were to consider it together with original all of the evidence, probably yield it would a different result or injustice, otherwise avoid an fourth element of the Asherman test would be satis- fied.” (Citations omitted; emphasis altered; internal quotation marks Shabazz v. omitted.) State, supra, 259 Conn. 825-28.

Consistent with we Shabazz, conclude that the trial court divested of its authority, and indeed responsibility, credibility examine the statements following its conclusion that the statements satisfied the minimum threshold admission as decla- penal rations against Indeed, Shabazz, interest. this implicated that, “because the interests court stated irrespective remain the same petition for a new trial issue, evidence at newly the nature of the discovered maintaining no basis for principled can we conceive types of different different two tests evidence].” [for court underscored that the failure Id., 829-30. The credibility analysis improperly cases apply a certain evidentiary the trial court to the role of “relegate would . Id., . . .” 831 n.14. gatekeeper peti- reject We the contention advanced also precluded so, the trial court doing tioner when any evidence corrobora- considering regarding from thereof, previously the court tion, or lack because Bryant’s aspects some state- considered whether whether determining ments were corroborated when admissibility had met.23 In its the threshold for been admissibility determination, appears the trial court to principally peripheral on for have relied corroboration Bryant’s account, such as his visits to Belle facts in disagreed trial We note that the state with the court’s determination interest, Bryant’s qualified penal against as statements that statements briefs, objection posttrial in in to that evidence its and asserts renewed its ground affirmance, that, appeal, essentially an for because this alternate aretrial, provide impetus it this would be inadmissible in cannot the acknowledge affording a new We that the court’s statement for trial. trial probably considering when whether the evidence would result in a different Bryant’s trial, namely, new that statements are “absent verdict in a appears corroboration,” genuine fall for short of standard admission supra, against penal Lopez, v. interest. See State 254 Conn. of a statement emphasized requirement (“Wepreviously have that corroboration [t]he penal party against signifi of a third statement interest is for admission beyond party goes . . . cant and minimal corroboration. Third statements exculpate suspect danger of an are because of the fabrication. accused accompanied by corroborating Therefore, the be cir . . . statement must ” clearly indicate the statement’s trustworthiness. cumstances [Citations omitted; quotation emphasis original; omitted.]). Because internal marks reject petitioner’s claim, however, improperly court we trial persuade that the had failed to it that state determined probably trial, need ment would result in a different verdict a new we regarding ground for affirmance not examine state’s alternative admissibility court’s determination. Tinsley prior Haven or without Hasbrouck and whereas, credibility night murder, its determination, part I 2 of opinion, discussed B this appears the court to have focused the lack of corrob oration material facts relating night murder. the trial court have Although could considered all evidence addressing corroboration when relating admissibility question, its bifurcation of the corrob improper.24 oration evidence was not Corroboration only one several factors that determines the trustwor of third party against penal thiness declarations inter and we have est, instructed the trial courts to consider totality of the circumstances rather than to view necessarily each factor as v. conclusive. See State Lopez, supra, previously 254 Conn. 316 (“We have emphasized . . . no single factor the test we adopt for the trustworthiness of determining party third penal declarations against interest is necessarily con clusive .... it Thus, necessary is not that the court find that all support of the factors the trustworthi ness of the statement. trial court should consider all of the factors totality and determine whether of supports circumstances trustworthiness of statement.” omitted; internal quotation [Citations marks omitted.]). present case,

In the the trial court considered some of the corroboration evidence and determined that this evidence, part as totality considered of circum- stances, Bryant’s to sufficient admit statements 24 note, moreover, contrary conclusion, namely, We a required relating court was to all consider evidence to corroboration when making admissibility determination, petitioner’s its would not advance the only express cause. We then would have to look to the statements wherein quantified the trial court the extent to which account was corrobo rated, in which the court found the corroboration “minimal” and “absent any genuine compel That corroboration.” assessment would the result that did against not meet the corroboration factor for declarations penal interest.

486 penal interest. against

as declarations contrary Shabazz, but only be approach would a threshold apply higher trial courts also would force to abdicate their admissibility right so as not their deter- pertinent making evidence when review all probably proffered evidence as to whether the mination We result on retrial. cannot yield would a different approach. such an sanction

2 properly that the trial court of our conclusion light we credibility Bryant’s statements, considered the its conclusion that this question turn of whether . . . any genuine “is absent corroboration produce would not credibility, therefore, lacks an in a trial” constituted abuse different result new we mindful that evidence In so are doing, discretion. undoubtedly credible, if would culpability, party of third mindful, We are significance in retrial. also great be the action of a trial reviewing “when however, we standard, should under an abuse of discretion court contradict, rather than support, read the record to [the omit- quotation marks ruling].” (Internal trial court’s 674, n.16, v. 692 A.2d Lugo, 266 Conn. ted.) State Orr, 642, State v. 291 Conn. (2003); accord there has determining whether (2009) (“[i]n A.2d 750 discretion, issue is an abuse of ultimate been reasonably conclude it did” whether the court could v. Skakel, State quotation omitted]); marks [internal determining whether there 276 Conn. 724 supra, (“[i]n every pre- discretion, an reasonable has been abuse correctness sumption should be made favor ruling will upset court’s we ruling, of the trial quota- only a manifest abuse of discretion” for [internal therefore, have scrutinized omitted]). We, tion marks presented hearing at the carefully all of the evidence issue, on and we conclude petition that bears this on the well as the circum- corroboration, lack of that the

487 fully emerged, under which allegations stances court’s support the trial conclusion.25 documentary presented The testimonial evidence petition the trial on the for a trial reveals to court new 25 that, acknowledges opinion general The dissent footnote 9 of its as a matter, reasonably newly although “a trial court find could discovered sufficiently party against penal trustworthy third statement interest is to be trial, so admissible a second the statement nevertheless is otherwise unworthy credibility of belief that it fails to meet minimum threshold Shabazz, thereby obviating . . . need for the court to consider [under] original the statement context of trial evidence.” The dissent acknowledges applies further that the our abuse of discretion standard to grant petition of a review trial court’s decision to whether for a new trial. statements, dissent, however, agreement. we As to those are in fails apply Specifically, this standard of review. the dissent reads the evidence light conclusion, supporting ignores in the least favorable the trial court’s supports conclusion, hypothesizes the trial court’s theories evidentiary never advanced and founded on the slimmest of reeds. approach unprecedented The dissent’s is in our law. For case more than century, one it has settled an been law that abuse of discretion standard applies only grant to the trial court’s ultimate decision whether petition trial, subsidiary support for a new but also to its determinations in State, e.g., See, 831, 837, Adams v. of that decision. 259 Conn. 792 A.2d 809 State, State, (2002); supra, Shabazz v. 820; 259 v. Seebeck Conn. 246 Conn. 536, Raguseo, 514, (1998); 114, 139, State v. 717 A.2d 1161 Conn. 622 225 State, supra, (1993); 434; Asherman A.2d 519 v. 202 v. Lombardo Conn. State, 389-93, State, 385, (1977); 172 Conn. 374 1065 v. Smith A.2d 141 Conn. 207, State, 202, (1954); 576, Gannon A.2d 761 v. 75 Conn. 54 A. 199 previously (1903). noted, standard, As we have under the abuse of discretion “every presumption should made the correctness reasonable be favor of ruling (Emphasis trial added; quotation of the court’s . . . .” internal marks Skakel, supra, omitted.) State v. squarely 276 Conn. 724. court This also rejected proposition has that a less deferential standard than abuse apply pertaining discretion should to review of decisions to evidence that predicated is not on an demeanor. See State assessment of witness’ v. Lawrence, 141, 156-57, (“[T]he 282 Conn. (2007) A.2d defendant misapprehends the fundamental distinction between the function of fact finder, credibility which is to facts, make determinations and to find appellate tribunal, review, the function of retry, which is to and not to proceedings light function, court. ... of our limited it improper supplant credibility be would for this court to its determinations finder, regardless those the fact of whether the fact finder relied printed omitted; the cold record make those determinations.” [Citation quotation Security Services, omitted.]); internal Besade v. Interstate marks 441, 448-49, 562 (1989) (“To 212 Conn. A.2d 1086 the extent that the [workers’ compensation] commissioner’s assessment of the evidence before him did personal appraisal credibility not rest on a of the demeanor and him, urge witnesses before us to [the hold that such defendants] deference inappropriate engage appellate scrutiny. and to in a broader . . . We Bryant’s to whether following relating not a noted, As the trial court

account was credible. Bryant seen or with who claimed have single witness spoken, including his close whom he claimed to have who out in the Walker, anyone neighbor- was friend or Bryant’s presence or that of night hood that recalled Perhaps significantly, Tinsley. and most Hasbrouck who claims were in meadow girls none of the supposedly made com- Tinsley when Hasbrouck an “uncomfort- overtures that created ments and sexual presence reported their or this able” situation relevant highly that would seem incident —an incident day naked, of the half discovery the next following who was in allegedly female victim teenage brutalized Bryant’s made. these comments were the meadow when they companions suggests of his also description Although they noticed had been there. would have been had to Belle Haven on a Tinsley and Hasbrouck been them as “outsiders.” Bryant described occasions, few approximately feet, both six He described them as also as African- pounds, tall Hasbrouck two inches and 200 Tinsley Bryant also as mixed race. American was six feet and 160 to 170 tall, African-American and three young at the time the murder. These pounds fifteen like fourteen or average men did not look crowd,26 who would have blended into year olds documentary distinguished and testimonial have heretofore between not findings appellate reviewing defining the role of tribunals in evidence in prepared . . we not to introduce such a distinction into fact . and are Moreover, omitted.]). proceedings.” if the trial administrative [Citations weigh against improperly failed to statement the evidence corut had trial, remedy proper be to the case to the at the criminal would remand process, court, engage weighing as the not for this court to dissent does. attempts explain seeing the fact that no one mentioned police by positing following murder that the investi or his friends anyone any “strang inquiry gation seen an as to whether was limited to view, yielded Haven, which, not would have ers” in Belle there, Bryant, people friends, or known to an identification who was Testimony police records, as well previously. who had there been Ix, sense, however, and O’Hara all indicate otherwise. Edwards common Tinsley Thus, young not know or Hasbrouck. these testified that did particularly an area described one fairly lily-white community.”27 witness as “a We also Bryant note that one to person who claimed have seen walking about the neighborhood night, Edwards, that unequivocally was stated that she not even out in the neighborhood that night. strangers Indeed, Bryant men would have been to them. himself character- Tinsley ized and Hasbrouck as The also “outsiders.” indicates that police questioning simply question was not limited to of whether people strangers. had seen Bryant The dissent’s rationalization one saw that no and his two friends reasonably because of the darkness and also the cold would have been rejected by Bryant group lurking the trial claim court. did not that his was throughout evening. Rather, spoken in the bushes he claimed to have congregated group with friends like Walker face-to-face and to have with a neighborhood teenagers period Bryant for some time. Unless and his cold, teenagers friends wore face to masks ward off the would have identify persons they been able to features of encountered face-to-face. attempts explain inability also to the current of witnesses Bryant’s presence night partly by to recall that the fact this incident approximately thirty years ago. occurred For the reasons stated in this opinion, however, suggest Bry- the facts that someone have would recalled presence. petitioner’s point, however, striking that, ant’s To the it is while difficulty together piecing comprehensive other witnesses had a and coher- 30, 1975, Bryant provide ent account of the events October was able to incredibly evening, recalling times, an detailed timeline of the events places, people made, seen and exact comments not to mention such innocu- having ability ous details waved to Julie Skakel. His to recount with such clarity thirty years past the events of almost is all more remarkable that, by given admission, marijuana his own he had smoked and drank good sufficient amount of beer that he his described condition as “a buzz. ” slightly buzzed, say lightly Indeed, Not I would drunk. unlike other witnesses police who had memorialized accounts of their actions in numerous inter- views, grand jury testimony testimony and trial that would have aided their Bryant recall, memory. had no such occasion to commit these events 27 appears only family It living that there was one African-American in Haven, family. Belle the Jones Ethel Jones worked as a cook for the Skakels and resided with her husband and son in a house at the foot of the Skakel property. Bryant Kennedy only living told that he “the black kid years.” couple only Greenwich for a Mills testified that there were two deposition, African-American at students Brunswick 1975. At his Charles Morganti, security duty guard night the Belle Haven who was on of the group youngsters murder stated that had observed of five six provided yard, testimony following response around the Skakel questions posed by attorney: the state’s any working night you any tall, At “Q. occasion while did notice

young, teenage black males? “A. No. you Did night? “Q. observe black males Belle Haven that Bryant’s account of The evidence also contradicts to the events of principal parties of the the location victim had been Bryant claimed that the evening. part in the meadow in the latter with group undeniably who had been evening, yet people other whereabouts through the victim accounted her at other locations. also evening out the entire only in 1980 and was Byrne, who died claimed that homicide, years old at the time of the eleven or twelve evening, and his two friends that had been with and had allowed a witness to the murder had been Byrne’s spend Tinsley night Hasbrouck however, Byrne with witnesses, placed house. Several night, friends at various times that the victim and other him with the victim testimony placed this and all of approximately p.m. no her later than and friends Byrne Bryant, never police interviews, stated his Tinsley night, with him that but or had been Hasbrouck had been at the Skakel police that he instead told others and had home gone with the victim and house p.m.28 around 9:30 lx off at her house dropping after tape-recorded Byrne’s sister stated in Significantly, very very, would have obvious. A male in Belle Haven been “A. black was there.” There none 1975, report 1, police dated November contained 28 The interview police: “[Byrne] Byrne’s following initial statement to stated account [lx], [lx, and stated the same as was with the victim and O’Hara] he stayed [neighboring] residence and until about went Mouakad to They p.m. house were enroute to the . . then left the Mouakad and 9:10 . p.m., remaining and at the until about 9:20 he Skakel home. After [Skakels’] go to home. left [lx] by himself, footsteps walking [lx], was home heard “After he left and stopped footsteps kept coming. following He him. When he to listen way [Byrne] all further stated run ran house. then started to and way footsteps did look him all the home and that he not that the ran after following was him.” to see who back [Byrne’s] proposition that “the fact that the novel The dissent offers supports evening remain unaccounted whereabouts for most Byrne Bryant’s group].” (Emphasis [placing Bryant’s with of the facts version Byrne’s may inability Although added.) account for whereabouts account, hardly the same as corroborat- with that is be inconsistent ing that account. porch interview that their father been on the when had Byrne came home at and p.m., 9:30 that their mother Byrne had told her that she bed had seen in his at 10 p.m. night.29 very Thus, point at the in time when claims the murdered, victim murder Byrne witness, Byrne’s which claims bore Byrne’s mother saw him in his bed. sister further indi Tinsley cated that their mother was certain that Byrnes’ Hasbrouck were not at the house that night, Byrne’s brother that he stated had arrived Byrne at 8 a.m. 31, house on the of October morning Byrne had seen several times around house that Tinsley and did not see or morning, Hasbrouck. also record reflects no corroboration for the

alleged murder, motive for the namely, Hasbrouck’s supposed obsession with victim. claimed certainty that, prior 1975, to October Walker had Mills both heard Hasbrouck make comments wanting about go “caveman” the victim. Neither Mills, Walker however, nor of such recollection comments or even that Hasbrouck had an “obsession” with the victim. Significantly, that, Walker testified if he ever heard Tinsley had either or Hasbrouck make the “caveman” or other graphic comments about the Bryant victim that them, attributed to he would have police. informed As there is no record of such presumably report, no such comments were made in presence. Walker’s would never

however, tions with had spent Byrne, spent huge house.” Bryant been to had told night with statements night Kennedy, claimed know, Byrne’s Bryant Bryant at Belle Byrne’s though. to both house on several stated that know “for Haven. Tinsley they spent house. He that, . . . The “You could both and Hasbrouck a fact” immediately Byrnes would never know. It was a Tinsley occasions, night that stay at Tinsley Byrne’s house. at their house and acknowledged followed that but Hasbrouck, and Hasbrouck had denied ever as well assertion, conversa having they they as Bryant’s

Similarly, account of when Hasbrouck Tinsley weapon is not corrobo- obtained the murder by in his interview with Bryant rated the record. stated “Everybody Belle Haven touched those Colucci: Bryant used hit behind the house.” clubs. We balls find the clubs on the golf indicated that would which described as an “extension porch,” “back “just around.” yard,” laying of [the Skakels’] “I murder, night then recounted picked up one. picked up [Tinsley] one. [Hasbrouck] up were, one. And we picked up [Byrne] picked one. put ... I had it and mine like, goofing swung around. I put down, swung I even it it back to down. didn’t was like a that was sort of bag bag where the —there I swung bag. there and so it back toward the laying . were them as sort [Tinsley using . . and Hasbrouck] walking Although, of like sticks.” trial court testimony at the trial that noted, there was criminal commonly yard were left around the Skakel golf clubs prior thus account the clubs handling to the of the murder was corroborated some night at evidence, extent the evidence adduced respect trial did not corroborate account Skakel, As we noted in v. night of the murder. State day body supra, 276 Conn. on the that the victim’s Lunney discovered, Detective James of the Green- police found clubs inside the department golf wich Lunney in the house, Skakel barrel mudroom.30 discoveiy a neighborhood made that course of be might canvass for clubs that mates the murder golf police weapon, after he and another officer walked from backyard the Skakel and into through the crime scene house. The the back door of the Skakel people also indicated numerous that, although Skakel, supra, 644, we a In State v. 276 Conn. described the room as long “hallway” police it as on its because described such based narrow back family shape, but and others familiar with the house referred the Skakel it, use, its a mudroom. in accordance with spent backyard time in or walked through the Skakel on the no one night murder, reported observing of the a any golf golf lying yard, despite clubs or about the bag fact was the that it well known Belle Haven and police the surrounding neighborhoods that the were looking for clubs golf and the section to the missing petitioner’s weapon.31 Indeed, family murder every incentive to a witness bring forward who could place the golf night, clubs outside house that but produce any could such Police witness. records Wittine, indicate Franz the Skakels’ chauffeur and handyman, a gave day statement on the reporting of murder, “I about working property the Skakel most of day and during this time didn’t observe any golf clubs lying adjacent about the nor property, house, any to the did I nor find golf lying clubs about property past couple for the Thus, weeks.” all points the evidence to the conclusion that there were no clubs golf yard in the Skakel before, or during, after period the time when Bryant claims that he and his friends allegedly were there handling the clubs.

In sum, no evidence, independent there is Bryant, to corroborate significant aspect of his account of the events of the night of October 30, 1975, whereas plethora there a of evidence to contradict his Pugh, friend, Andrew close childhood testified at the group criminal neighborhood that he was with a of ten to twelve teenagers playing backyard approximately p.m., Skakel from 6 to 7:30 yard. which is at or near the time that claims to have been in the gave police indicating Byrne Ix a statement to the that she and had left the through backyard p.m. Skakel Keegan, captain residence around 9:30 police department in the detective 1975, division the Greenwich testified police pursued, avail, possibility that the had considered and to no picked up golf property. someone had club on Skakel The search golf many for other clubs included a November 1975 check properties, neighborhood Skakels’, including the with a metal detector. Resi nearby police search, dents of Belle Haven and assisted areas in this police telephone days and the received numerous calls in the after the missing golf murder about found or clubs. by the Contrary approach advocated

account.32 hypothesize fact that one could petitioner, mere particu- of corroboration as to explanations for the lack trial con- improper lar facts not render court’s does Bryant’s “any genuine statements lack clusion that corroboration.” however, that the trial court petitioner contends,

The that he improperly failed to credit certain statements Tinsley Bryant, fact that claims corroborate the night in Belle Haven on the of the Hasbrouck were the trial court’s memorandum murder. We note that statements, and, not address these of decision does trial we not know whether the court found therefore, do or testimony credible, to be noncorroborative if we were to assume that trial irrelevant. Even credible, our review these court found statements in full statements, read context of witnesses’ record, indicate that these statements testimony and the fully in a manner consistent with a explained were testimony Dick, family petitioner points by Esme with whose Brunswick, Bryant attending as corroborative. Dick testified had lived while Bryant joined that, during in her 1976 at which had a dinner conversation family, speculating group as who have committed the was could Dick, Bryant According to stated that “he did not think victim’s murder. petitioner] opinion, not could have done it.” This statement reflects an [the opinion likely personal knowledge, and indeed was an shared fact based on people in 1976. Dick that other who lived Greenwich also testified murder, night Bryant had he was in Belle Haven on the stated that during had she not recall whether made statement but could in the course another conversation near the same dinner conversation or period. Notably, Bryant in his time did not indicate statement Tinsley him, provide he were with nor did information Hasbrouck or any personal knowledge he about the crime. to Dick to indicate that Therefore, significant light fact omissions and the these information, trial was well within its discretion to source of this court supra, State, v. to Dick. Cf.Shabazz 259 Conn. 818-20 discount his statement finding (concluding statement of that trial court did not abuse its discretion credibility eyewitness lacking despite newly fact that witness’ discovered hearing petition new counselor testified at substance abuse trial, witness had confided in counselor that after criminal victim). encounter between had witnessed materially conclusion that were not corroborative rendition of the facts. Under the abuse we standard, selectively discretion do not isolate those parts testimony of a witness’ that trial undermine the court’s conclusion to the exclusion other evidence supports that its conclusion. Rather, “every reasonable presumption in should be made favor of the correctness . (Internal quotation court’s . . .” ruling v. omitted.) Skakel, supra, marks State 276 Conn. 724. Specifically, petitioner points to Colucci’s testi- mony that stating Tinsley Hasbrouck and had admitted they him that were in 30, Belle Haven on October 1975. Even if we assume, were to arguendo, that the trial court credited Colucci’s testimony, despite the questionable under alleged circumstances which these made, admissions were complete record indicates that Tinsley initially Hasbrouck and recalled not being in Belle Haven that night, indicated later conversa- tions they there, upon had been but, checking their calendars, subsequently they confirmed that had not been there night.33 The reasonably trial court could Kennedy, tape-recorded In their initial discussions with which were knowledge, Tinsley they without their Hasbrouck and had indicated that night killed, Tinsley’s were although not Belle Haven on the the victim was equivocal question recollection was somewhat more because the related to thirty years previous. testified, events however, that, that occurred Colucci subsequent him, recorded, conversations which not were both men being 30, According had admitted to in Belle Haven on October 1975. Colucci, day being given Hasbrouck admitted to in Belle Haven that and had departure (noon, p.m., three different times for his 6 to 6:30 and 9 to 9:30 which, p.m.), coincidentally, none of match account. Colucci testi Tinsley fied day, told had him that he had been in Belle Haven that but shaky provide departure. on the details and could no time for his On cross-examination, acknowledged Colucci that these admissions were by reflected in investigator notes taken of those conversations who had accompanied only added, upon instruction, Colucci and later were Colucci’s notes, to a given second set of significance a curious omission alleged that, admissions. Colucci further admitted on cross-examination follow-up investigators made, call that the the two had men confirmed they checking calendars, they after their were certain that had not night been in Belle on fact, Haven of October 1975. In Colucci Tinsley simply and Hasbrouck

have concluded they had in their recollection of whether were unclear thirty years having on that date ago, been in Belle Haven until time, occasions near that previous been there they of the week on which October day checked the they realized that would not have been 30,1975, fell and Thursday and, hence, it was a night there that because reasonably Indeed, the trial court could night. a school Tinsley unlikelihood that taken into account have repeatedly willingly and Hasbrouck would have Haven and their where- visits to Belle past discussed if on the of the murder indeed night abouts committed the murder.34 relies on a statement made also private investi-

Bryant’s Bryant, to two mother, Barbara son, Tinsley and petitioner, that her hired the gators that well night, had been in Belle Haven Hasbrouck testimony he had in Con- been deposition as her testimony day. Bryant’s Barbara full earlier that necticut her repeatedly she stated that reveals, however, 30, dark on had arrived home well before October son support evidence in of that fact 1975, that she offered contrary investiga- statement to the to the and that her of what her son had told simply repetition tors was a public knowledge.35 her his account had become after acknowledged investigators’ notes reflect that Hasbrouck said he that the Haven, spent night have that his mother would “tanned never had Belle stay so never would have let him out his if he had done and she hide” night. on a school Bryant implicated had them in were made aware that Until voluntarily lengthy Tinsley engaged crime, in numerous and and Hasbrouck Kennedy later, initially, recounting and Colucci details conversations fact, prior In of several visits to Belle Haven murder. it Hasbrouck Tinsley, Kennedy telephone provided Has who with a number for whom memory having “a far better of events around that brouck described as period.” time Bryant deposition, pursuant subpoena, recalled her taken Barbara day 30,1975, repeat during being of October but her son in Connecticut by “early afternoon,” edly in the or at that he had returned home stated light further because he was least while was still out. She recalled it time, go he would not have been allowed to under a curfew Thus, accepting part as trae the of Barbara testimony personal knowledge, based on the best that possibility can be said is that it rise to gives grain story, of truth in namely, her son’s elaborate may he have been Greenwich on the afternoon of Therefore, October 1975. we cannot conclude that it was an abuse of discretion for the trial court not to Bryant upon credit the statements of Barbara which petitioner relies. points also physical to certain evi- dence from the crime scene that he claims corroborates Tinsley. the involvement of Hasbrouck Specifically, two human hairs were found on a sheet used to cover body, victim’s one with “[njegroid” characteristics night permission. Bryant Connecticut on a school without her Barbara group gathered recounted an incident in which a of women were at her shortly and, upon seeing newspaper home after murder account of murder, the victim’s made a statement to her son to the effect that “aren’t you you glad your you certainly had black butt home because would have been accused of this.” Barbara did not have a conversation with her regarding night murder, son at that time whereabouts was, namely, personal because she knew where at home. She no knowledge going accompanied by Hasbrouck, of her son to Greenwich shy, friendly respectful, Tinsley, whom she described as whom she friendly. Notably, described as attractive and Barbara admitted the possibility that she had discussed the victim’s murder with her son after reporting implicated persons she an saw article that he had other in the approached by private being investiga- She murder. recalled on the street two possibility acknowledged tors whom the had hired and the may Tinsley she have told them that her had son told her that and Hasbrouck spent night night Belle Haven of the murder. Thus, reasonably Bry- the trial court could have concluded that Barbara ant’s statements that were consistent with her son’s account were noncorrob- given orative because he was the source that information and he had her many years murder, only that information after the after his account became public knowledge. may The trial court also have into taken account the fact appeared impair Bryant’s memory. that medications to Barbara Barbara making testified while on several medications.that she described as “foggy” always clear,” expressed her “not and and confusion about the time that, petitioner’s investigators frame of events. She also at stated the time the approached street, her on the she had been on another medication that made her feel “sick and confused.” profile.36 an Asian DNA “possibly” having

and the other reveals evidence, however, of that Close examination supposed of that corroboration. the de minimis nature is African- undisputed it was that Hasbrouck Although Tinsley’s to is evidence as American,37 there no clear white, as Mills him Bryant’s mother recalled race. African-American, only recalled him as possibly “mixed race” and Tinsley being as described placed was over part It is clear that the sheet Asian. there discovery body, of her but after the the victim trial court to establish presented to the was no evidence it there. At placed come from or who had where it had one of the forensic trial, Henry Lee, state’s the criminal hair as about the limited value of experts, had testified concept Lee also had described an identifier. secondary transfer, explaining that the hair could hair factors, any time. Given these fallen on the sheet have golf hypothesized perpetrator, a two club also has two The dissent Bryant’s support theory, theory account. In of this corroboration for police points Keegan, statements in a letter then a Greenwich dissent expert Keegan captain, a in which discussed conclusions forensic likely sequence investigators police as to the of events had drawn theory speculative view, too In our the dissent’s is in the attack the victim. expert light of the facts that the forensic account to corroborate parties testimony relied at the criminal trial establish on which both conclusion, party likely sequence neither of events reached a different police any expert Keegan on this officer as an offered or other Greenwich qualified expert matter, Keegan nothing was as an to indicate that there matters, who the letter does not state made the determinations in such Therefore, in the absence of indication to and on what basis. referred opinion competent expert indicated would offer an evidence Bry speculation perpetrators, such cannot corroborate that there were two exist, if the other We further note even such evidence did ant’s account. inexorably contradicting Bryant’s overwhelmingly account would Tinsley perpetrators. were not the conclusion that Hasbrouck and lead the against, negroid but found tested hair with characteristics Larry Jones, teenage to, samples Skakel, Thomas dissimilar taken from Jones; opinion; cook, see 27 of this Skakels’ Ethel footnote son Larry police Hickman, officer who was at crime scene. Jones Daniel There no indication that hair are both African-American. and Hickman samples as were tested to rule them out from Ethel Jones or her husband possible of the hair found on sheet. sources the trial did not its court abuse discretion rejecting respect this Indeed, physical evidence. with to other evidence, contrary Bryant’s what understanding the alleged meant, “achieved the caveman” comments there no pulled was evidence that the victim had been any her hair. Nor was there semen to completed allegedly corroborate the sexual assault.38 lack corroboration, addition the trial court question credibility found reason to light particular account in under circumstances years which so many he disclosed this account after in question. agree. Specifically, the events We Mills Bryant infrequent testified that had had contact Bryant each other after left Brunswick. During a telephone 2001, conversation in late well after the petitioner’s January, 2000 arrest warrant had been issued Bryant and while his criminal trial pending, was asked Mills about Martha,” screenplay “Little Mills had been on working many years that included a fictionalized account of Bryant the victim’s murder.39 suggested that he and Mills collaborate the screen- play. only It Bryant after reviewed the screenplay, in which Mills had used composite repre- characters to sent the petitioner, Thomas Skakel and Littleton as sus- pects, Bryant named Hasbrouck and Tinsley as the “real” peipetrators the crime. that Bryant relayed fact directly this account

connection with his offer development to assist in the 38Although nothing autopsy report in the victim’s indicated whether attempt present had been made to determine whether semen was on external body pubic region, performed areas of the victim’s other than her the tests region, vaginal swabs, on that as well as and anal revealed no traces of Skakel, supra, semen. v. State 276 Conn. 643. testimony We note that the from and Mills indicates that well-being September initiated the conversation to check on Mills’ after the City, 2001 attacks in New York where Mills The trial lived. court neither credited nor discredited this reason actual or exclusive motive for Bryant having initiated the conversation. an additional reasonable basis screenplay provided

of a question veracity of the account. court to the trial relayed account, Bryant never time he this Indeed, at the who this information to others provide asked Mills to charges petitioner bring aid the or who could could Bryant men who claimed had committed against the two punished. he claimed should be the murder and who Bryant’s actually that, if motivation Logic would dictate information known both to aid had been to make this his disclosing so iden- but to do without he had not have told a friend with whom tity, he would school, but, only rather, since high had limited contact telephone an call or sent anonymous have made would attorney or to anonymous letter to the an attorney. knowledge had no to substan- the state’s Mills Furthermore, we note that the Bryant’s account. tiate Mills, and later Bryant’s account to record indicates only may Bryant time that to not have been the Walker, lied to or misled these friends.40 speculate court, like the trial we decline

Finally, Bryant right invoked his fifth amendment why as to that counsel advised testify. surprising not to It is not Tinsley remain when and Hasbrouck to silent Bryant, forward personally by coming nothing gain had convicted someone else of already and the state had question we is whether must answer the crime. sole its concluding abused discretion trial court sufficiently trustworthy to be account, while . . . genuine “is absent corroboration admissible, produce would not credibility, therefore, lacks screenplay, Mills, help ottered According he when lawyer experience an or had had that “he either was entertainment stated Hollywood, lawyer, and also had done and had worked in as an entertainment given impression, writing had Walker a similar for television.” some attorney sports namely, or a and enter that he was either an entertainment Kennedy, however, that, although attorney. Bryant he tainment admitted practice school, law, graduated been licensed to from law never has opinion. 21 of examination. See footnote this let alone taken bar weight in a trial.” Given the different result new amply support conclusion, this evidence in record to abuse its we conclude that the trial court did not discre- petition in for new trial on the basis denying tion the a statements.41

II petitioner he is to a also claims that entitled new trial on basis to that, prior the of evidence his criminal Garr, who had worked as a trial, police first detective petitioner note We that also has claimed that trial court abused by failing separate its discretion to consider his claim that it would cause injustice jury. to an submit this evidence a To the to extent that petitioner injustice” believes that this to an court’s isolated references “avoid injustice independent trial, grant means that is an to a new basis which newly he is mistaken. To a order new on the basis discovered amorphous meet the Asherman factors but meets an fails injustice contrary stringent and less standard is to our case law common ipjustice language originates Review the sense. cases from which this ultimately indicates that the factors that became the Asherman test were injustice the means which the court determined whether an has occurred. State, 576, 578, State, (1903); See Gannon v. 75 Conn. 54 A. 199 v. Salinardi 670, 672, State, (1938); 249, 253, 124 Conn. 2 A.2d 212 Smith v. 139 Conn. (1952). single dating 93 A.2d 296 There is not a instance in the case law court, century granted back more than one in which this has a new trial on ground necessary injustice,” that such a “to an result avoid without application Indeed, of the Asherman factors. to read our isolated use phrase injustice” independent ground granting “avoid an an a petitioner satisfying new allow trial would a to avoid factors other than the credibility Thus, petitioner element of the test. a Asherman could circumvent process despite the habeas for claims of assistance of ineffective counsel newly by asserting the fact that the evidence is not discovered that the injustice. evidence is so a material that new trial an must be ordered avoid foregoing reasons, therefore, adopt approach For all we decline to petitioner suggested by injustice to his claim under a broad standard mindful, however, untethered to the Asherman factors. We are we left open possibility State, supra, 827, in Shabazz v. 259 Conn. that “there may justified determining be cases in which the trial court is in that newly sufficiently discovered evidence is credible and of such a nature injustice, jury, itself, in an order avoid a second rather than the trial court credibility.” should malte the ultimate assessment of its For the reasons we previously forth, have set we conclude that the trial did not court abuse its concluding discretion a this is not such case. when the investigation murder case

on the victim’s in the reopened investigator and later as lead in a attorney’s 1994, “secret engaged office state’s with Levitt about the and book deal pact” a foreword to book Levitt wrote criminal case.42In the to his relation- he referred published that was ebb, we made ship “At our lowest with Garr and noted: Levitt, L. Conviction: story. our Here it is.” pact a to tell Reporter A and Detec- Moxley Murder: Solving the for Justice Books Twenty (Regan Year Search tive’s petitioner, x. to the Levitt forward, p. According 2004), write a book arrangement secret and Garr had a “particularly caused Garr to have about the case that unique against bias” “undermin[ed] and use credibility selection, investigation in his Garr’s already . . dilutes the tenu- witnesses, . . . of . of the circumstantial value and effect probative ous petitioner had been convicted. on which the evidence” petitioner bias, of this As evidence effect book indicating to in Levitt’s points statements up to and leading during had witnesses Garr “threatened contends that the petitioner trial.” petitioner’s that this evidence was improperly concluded court been newly that, had this evidence not discovered trial, it would not jury at his criminal disclosed to the impacted the outcome the case. have we the trial court’s requests The state affirm that, peti- ground because the decision on alternate 42Although petitioner in his to this court that Garr also contends brief petitioner’s leading up during time to and “threatened witnesses pact trial,” and book deal with Levitt. The focuses on Garr’s secret his brief quote following only alleged from of these threats further discussion petitioner book, emphasized his brief: case was Levitt’s “[T]he Many testify. wanted to had all the witnesses. hadn’t all He found [Garr’s]. related, pursued, cajoled, harassed, [Garr], or threatened them." had therefore, petitioner’s added.) We, (Emphasis claim to be that construe the pact alleged of Garr’s bias because these threats were evidence alleged not address these threats write book and his book deal and do a independently from of that deal. our discussion plead had claim properly tioner failed this and it was barred, time the trial court not should have considered opinion. it. 16 of See footnote this Should this court merits, petitioner reach the the state that: claims (1) failed to or establish this evidence was unknown undiscoverable the exercise due through diligence prior petitioner’s or to trial because the trial counsel had heard deal, rumors about the book could have called as witnesses the sources these rumors and question chose not to Garr himself the book; about even had or (2) explored the rumors been Garr been questioned trial, testimony in the criminal such would produced not have different result. We conclude if we even were assume without deciding that the petitioner properly pleaded had this claim and that this newly discovered, was the trial court did not abuse its discretion determining that petitioner’s entitled a new trial because of the prove probably failure to that this evidence would result acquittal in an on retrial.

The record discloses the following additional undis- puted facts. On or May 21, about criminal trial attorney, Michael filed a Sherman, motion discovery and inspection, alia, inter requesting, dis- closure evidence that agent of the state “pecuniary or other development interest in the and/or case, outcome of this including, any but not limited to, contract, agreement, or on-going negotiations, which to preparation relate the book . . . .” The trial court, Kavanewsky, J., denied the request written, granted but it limited to the state’s peti- witnesses. The tioner no received evidence from the in response state request to this prior to trial. During the course of the criminal trial, Garr testified outside the presence of the jury. When Garr was by asked Sherman whether he had a book deal, objected the state on relevancy grounds. Sherman did objection. not challenge a the trial, the new hearing petition

At the presented witnesses, Levitt, three Garr petitioner testify with claim. In its Sherman, to in connection this Karazin, court, rejecting claim, decision testimony. Levitt testified J., following recited the as a reporter the victim’s murder case covering he began Newsday an in 1995, published in he article 1982. Associates, private findings Sutton recounting father, Rush- petitioner’s hired firm investigation Skakel and Skakel, Sr., that disclosed that Thomas ton firm accounts had different given had the murder than night their activities on the Shortly was in 1975. after the article police to the given Levitt, expressed interest published, contacted Garr obtained, which not that Levitt had had information Garr, and the two men became friends. been available to thinking writing had book about Levitt been inquiries prior had made to the grand homicide and expressed interest jury in 1998. Levitt his convening but, help endeavor, in this Garr and even sought consistently refused, Garr stat- according Levitt, con- help Levitt until the case ing that would Levitt stated the book that he Although cluded. “pact” story, Levitt Garr had made a tell their testified been no com- regarding that there had conversations only It after the pensation at that time. was only it Levitt concluded that seemed conviction that February, profits Garr, and, book split fair to The lowest do agreement he entered into an so. in the ebb to Levitt also had referred book’s which of Mark period publication foreword was the after case, Fuhrman’s about the victim’s murder book others, disparaging later had made Fuhrman, which police department’s Greenwich remarks about further into the victim’s homicide.43 Levitt investigation book, “Murder in Greenwich: Who Killed Martha Fuhrman’s entitled book, Moxley?,” published in his Fuhr in 1998. Sherman testified help book, sought writing but when his man had indicated that he Garr’s writing his own book. Sherman refused because he said that he Garr only testified it after that was the case had concluded he story began and knew the “end” that he work- ing on the book. Additionally, explained that, Levitt had although he stated book reluctant wit- nesses “cajoled, harassed, had related that Garr or them,” simply threatened he meant that Garr had told that, witnesses if did come forward voluntarily, subpoena he would them. Garr that, testified although he had met with Levitt reviewed drafts of the book, his role inaccuracies; was limited to he pointing out no role in drafting provided no access to evidence. that, prior Sherman testified trial, he had received “ ” ‘pretty good information’ that Garr had a book deal. Although assertion, Levitt never had made such an Sher- man persons identified three sources regarding the alleged Fuhrman, Tim Dumas and Dominick deal — Dunne —all of whom had written about the victim’s murder case. Sherman testified that it was because of these rumors about Garr a “book having deal” that he had filed the aforementioned motion discovery. for Sherman if claimed he had known about alleged pact Levitt mentioned in his book, would have made Garr’s financial motive central theme of petitioner’s Finally, defense. Sherman testified that spoken he had to the prior state’s witnesses concluded “heavy-handed” that Garr had been in his treatment of them.

On the basis of this testimony, trial court then essentially made two determinations before denying petitioner’s claim in connection with this evidence. First, the trial court turned to the issue of whether the evidence offered in support petitioner’s claim newa trial was newly discovered, it meaning that could not have been previously discovered despite the exer- publication preceded conceded that the of Fuhrman’s or book coincided grand jury proceedings with the in the case. The court determined that of due diligence. cise “any evidence not established that petitioner had was unknown or undis- Garr and Levitt regarding due at or diligence the exercise of through coverable had heard prior It that Sherman to trial.” reasoned should have involving a Garr and rumors of book deal sources of all three pursued Specifically, them. Fuhrman, Dumas and Dunne —had these rumors — in 2002, criminal trial petitioner’s attended the further prevented inquiring Sherman from “[n]othing regarding had information persons see if of those to Additionally, light Judge an book deal.” alleged discovery Kavanewsky’s ruling granting pecuniary by potential gain information of request for it court concluded that witnesses, the state’s trial “requested ruling apparent that, was had Sherman deal, he Garr about a book from the court when asked objection.” would have overruled the state’s the court evidence, whether the Next, trial court examined produce newly discovered, likely if was to a differ- even Second, of a new trial. the court ent result the event presented even concluded “[i]f [the] his if . . . told friend this evidence that [Garr] [that] try help him, to but he could a book he would he wrote over, is not the case anything not do until [it] jury as lead it swayed have that would acquit.” duty fulfilled or her trial counsel has his Whether linchpin forms the investigation a reasonable conduct a new trial made on the basis of petition in a for issue party to a newly evidence. entitle discovered “[T]o newly-discovered indispens- it is evidence, for new trial diligent have his efforts able that should been if the new evi- trial; fully prepare cause known with reason- have been upon dence relied could not be granted.” (Internal a new trial will diligence, able Fairway Terracino Asset v. omitted.) quotation marks Management, App. 77, 75 Conn. 815 A.2d Inc., 63, 157, denied, (2003). cert. 263 Conn. 822 A.2d 245 There fore, [petitioner] of proving has the burden “[t]he the evidence . . . could not have been discovered and the former produced the exercise due [in] . . .” diligence Co., supra, . Kubeck v. Foremost Foods 670; State, supra, 190 Conn. accord Asherman v. 202 diligence require Conn. 434. “Due does not omni science. Due means reason diligence doing everything able, possible. question . . . The everything which must be is not what might answered evidence have discovered, been but rather what evidence would have plaintiff by been discovered a reasonable persevering application, untiring good efforts in earnest.” [and] quotation internal (Citation omitted; marks omitted.) Kubeck v. Co., supra, Foremost Foods 672.

We that, with recognize due diligence reasonable prior effort trial, at or to the criminal petitioner might have been pursue able to further the “rumors” aof book deal Dumas, because Dunne and Fuhrman had attended the criminal clearly trial 2002 and were available to be called witnesses at that time. Addition- ally, in light Judge Kavanewsky’s on the ruling peti- discovery tioner’s request, might have given permission been question Garr about the book, any expectation gain of financial his meetings or or sharing despite information with Levitt, the “look” the trial court to Sherman gave after he had asked a question Therefore, about the book deal. we are hesitant to conclude that improperly court determined that the newly evidence was not On discovered. hand, other we are hesitant suggest the state can avoid the impact deleterious failure com- fully ply obligations with its Brady under v. Maryland, 373 U.S. 83 Ct. 1194, S. 10 L. Ed. 2d 215 (1963), simply because one of its has not investigators been forthcoming about information relevant to a discovery specific purpose

request obtaining filed with the White, information. See State v. 229 Conn. particular (“nondisclosure 125, 135, (1994) 640 A.2d suppression by reports and statements constitutes proba if, hearing even at the time prosecution police were in the reports and statements cause, ble prosecutor’s files”); but see State files than the rather Rasmussen, 55, 91, Conn. 621 A.2d 728 (1993) v. counsel, or known to defendant or his (“[e]vidence disclosed, trial, if is not considered during that is even Brady” as that term used suppressed [internal quotation omitted]). marks if we were to we conclude even

Accordingly, newly discovered, evidence was determine that the that the trial court petitioner has failed demonstrate concluding its that this abused discretion acquittal upon in an retrial. The likely would not result intimida- has made claims witness petitioner vague testimony no whose tion, pointed has witness but petitioner conduct, and the has was affected Garr’s suppressed by was Garr to no evidence that pointed petitioner prevented preparing the was from such that in brief petitioner argues the his Although his defense. testimony, failed Coleman’s investigate that Garr part opinion, III of this explain greater we detail equal access to evidence that could petitioner the had testimony. Thus, we or discredit Coleman’s corroborate trial court abused its are unable to conclude that the petitioner that was not concluding discretion in to a new trial on the basis entitled to assist Levitt regarding agreement Garr’s book.44 writing Levitt’s however, that, note, although we no direct evidence the record see We investigation improper during engaged conduct course of the

that Garr publication in the of Levitt’s book and indeed Garr’s to advance interest petitioner may predicated singular well have been on the fact focus on the direction, acceptance kept pointing of a in that Garr’s that the evidence very least, profits creates, appearance of an share in the book’s that evidence in the record indicates interest. We further note conflict of III We next turn to the claim that the trial petition improperly court denied his for a new trial on of testimony the basis from former Elan residents that testimony Coleman, would contradict the state’s only unequivocally petitioner witness to attest that the to killing petitioner had confessed the victim. The con- that, despite efforts, tends reasonable these witnesses whom possibly having Coleman had named as over- prior heard the confession could not be located to trial. only He further contends after trial and exerting extraordinary he efforts was able locate these wit- nesses, testify who would that never had heard make such confession and would cast doubt on credibility peti- Coleman’s generally. tioner, therefore, claims improperly trial court concluded (1) that: these witnesses could have been prior discovered to trial with diligence; due and (2) their testimony was largely cumulative of other former attorney knowledge agreement that the no state’s of Gaxr’s to assist prior receiving petitioner’s appellate Levitt a letter from the counsel raising issue, attorney and in fact Garr never informed the state’s receiving profits a share of the from the book even after the attorney inquired upon receiving state’s about book deal that letter. Nonetheless, public’s Garr’s conduct undermines confidence in the office attorney we, therefore, express strong disapproval. of the state’s our Despite criticism, petitioner’s invitation, our we decline the raised for the argument, supervisory first time at oral a order new trial under our authority justice over the administration because of what he characterizes unprecedented Specifically, as Garr’s breach of the code of ethics. the petitioner by disclosing contends § that Garr violated General Statutes 1-84 through employ- to Levitt confidential information that had Garr obtained his testimony by ment with the state. addition to the fact that the credited support predicate petitioner’s the court does not the factual for the claim, persuasive justification using there is no for the court’s inherent authority to order a new trial. The code ethics sets forth its own remedial measures, personally. which are directed at the violator See General Statutes (a). alleged present § 1-88 in situation the case is not akin to circum- necessary stances in which the courts have deemed it to craft their own prophylactic against abuses, remedial measure to act as a measure future exclusionary such as the rule to fourth address amendment violations. petitioner con- who never had heard Elan residents unlikely in an to result was not material and was fess, conclude that the trial court acquittal upon retrial. We peti- in that the concluding not abuse its discretion did burden of this proving failed to meet his tioner had newly discovered. undis- following additional The record reveals Coleman testified procedural history. puted facts and petitioner’s at the jury 1999, grand before the but, he died hearing, because probable cause testimony was read into the record cause probable his have noted our discussion previously trial. As we at criminal Coleman petitioner’s trial, the evidence at while he was that, night, guarding one testified hall after the dining in the Elan petitioner had facility, petitioner escape from the unsuccessful away I am with murder because going get said “I am then Coleman, petitioner Kennedy.” According to this where girl made advances stated “how he had and that he spumed that she advances he lives and petitioner told skull in with a club.” The golf drove her area” happened in “a wooded that this had Coleman golf her hard that the club “he had hit so in his acknowledged broken in half.” Coleman that another Elan testimony, he had testified jury grand Cliff “Reubin” or Ever- Simpson, John resident —either him in the hall dining working ette James —was make petitioner have overheard night and could of these witnesses testified this confession. None trial. trial, new petition hearing

At the testimony from Cliff Grubin —not offered petitioner James, full Coleman, whose Reubin, misstated Simpson. Grubin, III, James name is Alton Everette Spain, testified Ibiza, had located petitioner whom the at Elan and had guarded that he never victim. killing had heard him confess never Grubin further testified that Coleman once had stated very that he “was a liar.” whom good James, peti- tioner had located in Virginia, recalled guarding petitioner on more than occasion, one but stated that petitioner he never had heard the confess to killing any victim on those or other occasions. Simpson, whom petitioner located in Florida, recalled guarding petitioner on one occasion in which Coleman suddenly petitioner “just had stated that the admitted that he killed this but girl,” Simpson explained that it had upon become evident petitioner questioning that he had made no such admission, Simpson and never heard such an admission at other time.45

The presented testimony also from Sher- man, Colucci and Keith Weeks, private investigator, steps regarding they had taken to procure the testi- mony of these three witnesses. Sherman testified prior to trial, he had told Colucci to do what he could to locate these witnesses and “see if we can get them on phone.” Colucci testified, however, that the young attorney at Sherman’s office to actually whom Colucci reported only had directed him to look for James and that no one in Sherman’s office ever had told him to at Elan: counsel after following exchange Simpson was asked whether took place between he recalled a Simpson and the particular incident watching “A. I and were [Coleman] . . . And [the petitioner], [Coleman] just were to and all [the petitioner] my of the sudden left, [Coleman] ‘I goes, just can’t believe it.’ And I ‘What?’ went, ‘He said, admitted [Coleman] girl.’ that he killed this “Q. And what did you say? just “A. I just looked at Well, and I [the ‘Did tell petitioner], said, you —I girl?’ him that killed this you And ‘No.’ And so I [the looked petitioner] said, ‘Greg, back at I talking just [Coleman], what are said, about? He you girl?’ goes, said he didn’t that he killed this say he didn’t [Coleman] ‘Well, gave answer or but he one yes no, for lack of a better and, term, those’ — shit-eating grin used to have this [the petitioner] on his face sometimes, said that’s what he had. . . . [Coleman] And ‘Well it [Coleman] said, ” was his the fact that he reaction, didn’t no.’ say testimony Simpson Although

look for or Grubin. documentary established that Colucci had April, 2002, James subse- found an address for stated, telephone number, just Sherman “we quently him.” phone . . . connect on the with Sherman couldn’t that he never directed Colucci to see acknowledged any of the Elan residents whose contact infor- whether they did have knew whereabouts mation eventually spoke to James the three witnesses. Colucci by after he had been hired 2004, appellate counsel. petition- had been hired

Weeks testified that he May, Simpson to locate appellate er’s counsel only Cliff “Reubin.” Weeks knew their names and the time frame which had resided at Elan. during computer searches, ran several unsuccessful but Weeks an Internet board set message then found on posting from up by “Grubin,” former Elan students a Cliff who at Elan from 1978 to 1980. The listed his attendance city and an listed a and state of residence e-mail posting unsuccessfully attempted track address. Weeks residence, but place Grubin down eventu- through provided ally Grubin an e-mail at address on sent responded days later, board. seven message Grubin shortly him thereafter. Weeks and Weeks interviewed had Simpson through found information Weeks acquired from various former Elan residents and even- tually pieced together to obtain contact information. approximately one that it took him month Weeks stated Simpson, whom Weeks referred as “the to locate person I have ever had to locate.”46 most difficult attempt extraordinary assume is to bolster the nature what we an efforts, investigator as “an of Weeks’ characterizes Weeks people.” testimony specializes locating who hard-to-find Weeks’ indicated merely locating persons missing had and witnesses and that he worked on “missing” topics. equate do not “hard also lectured on those We expertise specialized and we therefore do not assume a locate” part. Weeks’ The trial court concluded that efforts to locate the prior three witnesses satisfy to and trial did not during due diligence. court further concluded that these witnesses could have been using located the same meth- ods that ultimately were used after trial to locate them. Therefore, the court concluded that the evidence was newly discovered within the of 52-270. meaning § We agree.

It highly significant newly this evidence is not discovered in petitioner the sense that the did not know of the existence of prior these witnesses trial. to Cole- man had identified these witnesses years before trial. Moreover, petitioner should have known that Cole- man’s testimony, if credited, key piece could be a evidence in the state’s case. apparently Sherman con- cluded, however, that cross-examination of Coleman at trial would be sufficient to him, justified discredit as he his lack of direction to Colucci about locating these by witnesses the fact that he anticipate “didn’t that . . . Coleman would be dead at the trial . . . [time of] [and] jury believed that the would see Sherman had [him].” James’ contact information in the spring 2002, but could not “connect” with him. No effort was made to Simpson locate or Grubin prior to or the trial. during Therefore, fully we with agree the trial court’s conclu- sion that Sherman had failed to exercise due diligence to locate the three witnesses. petitioner contends that these witnesses could

not have been located prior to trial because the state was unable to locate them, despite reasonable efforts to do so. Although might that fact demonstrate that these similarly witnesses could not have been discov- by petitioner ered before trial with the exercise of due diligence, testimony petitioner which the draws our attention does not establish by such efforts the state. Garr indicated that he had a vague recollection of “possibly” attempting Simpson contact attempts”

thought had made “some that the state possibly abroad, lived to no witness who find another what had been made never stated efforts avail. He and, therefore, the state’s efforts witnesses, locate these regard that the witnesses in this cannot demonstrate with the exercise not have been discovered could diligence. testified that he believed Garr also due spoken James, with but that James was uncom- he had experiences talking at Elan had fortable about disagree We no information. testimony petitioner’s efforts establishes that the

this approached had James been thwarted would have willingly period. during submitted same time James approached ultimately deposition to a when he petitioner, no and there is indication behalf of the cooperated would have the record that James petitioner prior during approached to or he been the trial. improper petitioner that it also contends presume that the methods

for the trial court to Simpson locating ultimately were successful similarly would have been successful Grubin in 2005 they applied in 2002 earlier. He further had or been were to that the meth- that, even if we assume contends Simpson would find trial ods used to Grubin after prior petitioner them to the to contact have enabled posttrial during were so extraor- trial, the efforts or dinary they required what is to meet exceeded petitioner’s diligence essence, the the due standard. prior during diligence due to or claim is that yielded the location of these witnesses would not have failing penalized to he not exercise so should be persuaded. diligence. We such are prove to that the efforts It is the burden yielded have to these would not applied used find witnesses earlier. Asherman been same result petitioner supra, (“[t]he must 434 v. 202 Conn. State,

515 demonstrate, by a preponderance evidence, proffered . newly . . the evidence is such discovered, could that it not have been discovered earlier v. Fairway exercise due Terracino Asset diligence”); Management, Inc., supra, App. 75 Conn. 75 bur- (“[t]he solely den of due showing diligence through- [rests] [petitioner]” quotation out on the marks [internal omitted]); see v. State, 514, 545, also Seebeck Conn. 717 A.2d 1161 (“[A] petition for new trial is a (1998) civil action, petitioner action .... In this civil just that, a petitioner, and, therefore, the trial court preponderance bore burden of proving, by a evidence, newly discovered war- ranted the aof new trial.” granting quotation [Internal marks The trial omitted.]). required court was not to petitioner infer that the had met his burden proof from the evidence no actual to demonstrating effort locate these prior witnesses to trial and from the absence pretrial evidence as whether efforts would have been successful. The has not drawn our to any testimony attention adduced from wit- these nesses as to their accessibility during pretrial period relation the methods used to locate them after trial. example, For Grubin was not asked whether his posting Elan board message was his first that site or comparable other site. note, We however, that the record does reflect that Grubin was in the living prior United States during trial, to and from to 2003, may a fact that have made him easier to locate at that time.

We are persuaded also not that the trial court abused by its petitioner’s discretion to find failing post- that the trial efforts were so extraordinary so as to exceed bounds due diligence. we are Although mindful that Coleman misstated name, Grubin’s last Weeks adduced undue difficulty without years based on the of atten- dance listed on the on Elan posting message board had person he was the Weeks

from Cliff Grubin that readily pur Weeks could have seeking. Moreover, been provided via the e-mail address sued Grubin simultaneously pursuing Elan board while message With of residence listed. by way place location did Weeks almost respect Simpson, although to it take from together to all of the information piece one month Simpson’s information, Elan that led to contact alumni they provided, alumni, and in turn the information sum, light were without undue effort. In accessible years lapsed had between Cole of the fact that several witnesses and time man’s identification these of Coleman’s potential significance and the the trial wit testimony, petitioner’s efforts locate these beyond “persevering the bounds of go nesses does not efforts earnest.” application, untiring good [and] v. quotation marks Kubeck Foremost (Internal omitted.) Wright, cf. v. Co., supra, 672; Foods Conn. State App. A.2d 1159 claim 85, 90-91, 943 (rejecting 107 Conn. not met to diligence that due standard was establish unavailability testily at trial when state of witness witness, searched spent days trying nine locate databases, calls, numerous vari numerous made visited family attempted to locate witness’ ous locations and 287 Conn. 950 A.2d members), denied, cert. did Therefore, we that the trial court (2008). conclude for a denying petition its discretion abuse petitioner failed ground new trial on the that the pro proving to meet his burden of that the newly discovered. by vided these witnesses IV we claim Finally, turn a new trial because of the granted should have been exculpatory to disclose evi- pattern failing state’s pieces of following to the points dence. composite person of a seen drawing evidence: security a Belle Haven on Octo- Morganti, guard Charles 30, 1975, peti- whom the approximately p.m., ber clearly tioner claims resembles Littleton but does not petitioner; reports prepared by resemble the a state investigator profile Littleton Thomas Skakel and potential suspects as as an that state established the petitioner fact that had left his home at around 9:30 p.m. go to his cousin’s house (profile reports); lapse “time data” that sets forth a account chronological prior to, of Littleton’s actions and after the mur- during charged uncharged misconduct, der that included as of crimes listings well female victims against frequented. petitioner areas Littleton had claims that the trial court improperly grant petition failed to ground for a new trial on the of due reasonable cause pattern state’s of suppression and nondisclosure of evidence in Brady this violation of v. Maryland, 373 U.S. 83. He also supra, claims that the trial court its petition abused discretion denying newly ground discovered evidence.

The state contends we should not consider reasonable cause argument because pursue declined to as an independent it basis for a new trial, asserting only ground newly discovered evidence. The state also contends the trial court properly relied on this court’s in the petition decision appeal er’s direct from judgment conviction newly conclude that this evidence was not discovered. It further Brady contends there was no violation with profile reports to the regard lapse and time data because the state had given the raw data. The simply produce state did not conclusion the inves who tigator prepared the profile reports, it which would claims have been value, inadmissible and of little or state’s compilation of the raw data. We agree with the state.

We note although, at the decision, outset its court referenced lapse the time part data as pattern of a of nondisclosure petitioner’s claim evidence, specifically the court did exculpatory any find- analysis in its or make address that evidence court, In his brief to this the in relation thereto. ings prepared P. Solomon the petitioner asserts that John concurrently profile reports lapse with the time data by incorporated its reference and that “much of data report” profile or that the profile into the Littleton Therefore, lapse the time data. reports “include” lapse we the time analysis, of our consider purposes do not profile report and part data as of the Littleton separately. it address resolved petitioner’s large degree claims are to a

The the appeal judgment his from prior our decision in Skakel, supra, v. 276 Conn. 693- of conviction. In State that he was entitled to new petitioner claimed certain improperly the state had withheld trial because composite draw exculpatory evidence, specifically, the reports. The suspect profile petitioner two ing failure to disclose that that the state’s further claimed to a trial in deprived right had him his fair v. 373 U.S. 83. State Brady Maryland, supra, violation of to rejected We claims as both Skakel, supra, v. 694. profile reports. Id. drawing we composite drawing, concluded respect With pro- improperly state had failed that, although the petitioner’s pretrial response drawing duce discovery request,47 Brady there was no viola- general had had actual notice petitioner tion because the Id., Specifically, 703. the state drawing. existence of in its preparation drawing of this had mentioned pretrial production, petitioner had filed a motion for disclosure and any ‘[¡Information “requesting, alia, the state disclose and/or mate inter composite exculpatory nature,’ including ‘[p]hotographs, which is rial physical replications depict the likeness or sketches or other media ” Skakel, supra, [any] perpetrator alleged State v. this crime.’ attributes of 276 Conn. 694. reports over

investigative reports, those were turned petitioner, to the petitioner’s and the trial counsel had reports. that he Id. acknowledged was aware these We noted further that the had known of Mor- ganti’s potential as a had the significance witness and ability directly explore Finally, this issue with him. Id. rejected we had not argument that he exculpa- actual notice because did not know the tory nature of the until actually he had seen drawing Id., it. We 704-705. concluded that it was sufficient for the poten- to have known that the drawing tially exculpatory. Id., peti- could be 705. the Because tioner had evidence, actual notice of this we concluded that, in specific request the absence of a drawing for the supplement discovery the there general request, was no Brady Id., violation. 707. respect profile

With to the suspect reports, we noted the following “Solomon, facts. a supervisory former inspector with the the attorney office of state’s in the judicial pres- district of testified Fairfield, outside ence of jury issues concerning that were raised in a motion then pending before the During court. his testimony, Solomon to a copy report referred of a he had prepared in connection with the investigation of the victim’s murder. Solomon report, characterized that which in 1992, he wrote as profile a of Littleton summa- rizing why, at the time report written, was Littleton suspect. considered a Immediately after Solomon referred to report, the [petitioner’s] trial counsel requested copy, to which the responded: court ‘Not right now. are You talking about examining the witness.’ At that same proceeding, the state testimony elicited from Solomon that he had indicating prepared a similar profile who, of Thomas Skakel, time, at one also was suspect in the victim’s murder. [petitioner] failed request renew reports for those before the conclu- sion trial, and his motion original for a new trial, 12, did not refer filed on June timely

which was reports.” Id., 707-708. to the two its “the trial court acted within We concluded claim on rejecting [petitioner’s] discretion in a had failed to raise it [petitioner] ground Even timely Practice Book 42-54. § manner under reports became aware the two though [petitioner] to the Brady challenge not raise a during trial, did reports until two him provide state’s failure day period five limitation months after the and one-half 42-54 a new trial ... § a motion for filing under] [for added.) Id., 710. expired.” (Emphasis had facts and conclu- In addition the aforementioned Skakel, present in the forth in court sions set testimony. Garr pointed following to the case composite draw- testimony to establish offered files, always which were the state’s ing had been Sherman admitted petitioner. accessible to the shortly him about the trial, Solomon told before had filed a discov- profile reports.48 Although Sherman year he trial, before acknowl- ery almost one request discovery request this he had not renewed edged that the profile reports. to specifically request testimony this conclusions In of this court’s light that previous appeal, we conclude petitioner’s in the in concluding its discretion the trial court did not abuse newly Although was discovered. that this evidence statement petitioner that this court’s contends [peti- Skakel, 710, 276 Conn. that “the supra, State v. trial” reports two during aware became tioner] was directed at holding because the court’s dicta it is that Brady challenge, clear the timeliness on facts established predicated this statement was May, also contends that his petitioner The the evidence. 48 profile reports acknowledged he had seen both Sherman also possession during witness the criminal trial. of a state’s

521 discovery motion documents that would sought have these which reports, prepared included were 1991 or Although reports 1992. we would agree would scope request,49 have fallen within the of this this negate petitioner fact would not that the knowledge subsequently prior obtained to and during trial profile reports existed. petitioner The did not exercise reports due to obtain he diligence these once knew specific of their Indeed, Brady existence. neither our discovery doctrine nor rules of are either intended to obligation relieve the defense of its to seek diligently evidence favorable permit to it or to the defense to close eyes its information likely discovery lead to the such evidence. light facts, these the trial court did not abuse its discretion in that the evidence concluding newly was not discovered. respect

With to the cause reasonable Brady claims, we decline address them for several First, reasons. the trial court did not address these arguments. The not claim does sought an articulation to obtain ruling claims; on these see Smith, State v. 598, 613, Conn. 960 A.2d 993 (2008); nor has he sought See v. Golding review. State Golding, 213 Conn. 239-40, 567 A.2d 823 (1989). Moreover, the petitioner extends the bounds of reasonable cause beyond its limits. “Although permits 52-270 the court [§] grant trial upon proof new cause, reasonable circumstances which may reasonable cause be quotation found are limited.” (Internal marks omitted.) motion, discovery May 21, 2001, requested, filed inter alia: “The names, persons, [peti addresses criminal records all than other the tioner], any suspects, detained, who were time considered or who were questioned, case, together any and/or arrested in relation to this materi suspected, including, als and which information caused to be them but not any to, statement, report, narrative, limited oral and/or written affidavit in support warrant, request of a or other document. This would include [petitioner] information and/or evidence that other than someone target investigation, particular, Littleton, the focus and/or of the state’s in Ken Wittine, Skakel, Frank Thomas and/or Edward Hammond.”

522 Searles, Bleidner v. App. 76, 78, 19 Conn. 561 A.2d 954 whether test of ‘reasonable cause’ is basic (1989). “[T]he diligence, due despite the exercise has been litigant, a a heard a fair to have case on deprived opportunity T. Corporation, C. I. Credit appeal. Black Universal v. Wojculewicz 243 188, 187 A.2d 194, (1962); 150 Conn. Dudley State, A.2d 439 676, 678, 117 (1955); v. 142 Conn. Hull, A. 710, 719, 136 (1927).” (Empha Conn. 575 v. 105 202 Thorne, Wetzel v. 565, 561, Conn. sis added.) court did not trial Accordingly, A.2d 288 (1987). a petition for new denying abuse discretion its evidence. on basis of this trial disposed we have two We mindful that are solely ground that the trial claims concluding not abuse its discretion court did newly discovered because evidence was burden of that this proving did not meet his petitioner for at trial have been available use would not con- Because this had been exercised. diligence if due Costello Cos- v. claims; dispositive those clusion is Terracino 695, A.2d 755 tello, (1953); Conn. Management, Inc., supra, 75 Conn. Asset Fairway v. possible on the effect 80; express opinion no App. we in a trial. Undoubt- have new this evidence could new at this a edly, prerequisites obtaining “This standard is meant stringent. strict stage are principle that once underlying ‘equitable effectuate final,’ it be is to considered judgment rendered except for posttrial motions not be disturbed should State, supra, 202 Asherman v. compelling reason.” extent, however, that the 434. To the Conn. changed would have this evidence

believes that appropriate relief is the trial, habeas outcome of a claim. pursue avenue to such is affirmed. judgment J., concurred, and VERTEFEUILLE, opinion In this parts II, McLACHLAN,Js., concurred ZARELLA result. IV and III and

523 ZARELLA,J., McLACHLAN, joins, with whom con- J., parts with III IV of the agree join II, I curring. I that the majority opinion. also the result agree majority part in I its which it opinion, reaches upholds petition trial court’s of the a new denial for by Skakel, trial filed Michael C. on the petitioner, newly hearsay basis of discovered made statements “Tony” Bryant. I separately, however, Gitano write majority because the has failed to address the threshold present issue in admissibility Bry- case—the of the ant at a new which, my view, evidence is dis- trial — positive of the Bryant claim.1 The hearsay satisfy constitutes inadmissible that does not of a penal definition statement against interest within the meaning 8-6 of the Code (4) § Connecticut Evidence. addition, evidence fails to satisfy any of the trustworthiness forth in factors set Conn. Evid. Finally, Code 8-6 were (4). § even if I assume, portions of the arguendo, Bryant evidence Biyant’s penal are against satisfy interest and the trust- portions only factors, those worthiness would be admis- sible because (1) present case, Bryant’s self- inculpatory statements are severable from his self-serv- statements, and ing (2) Supreme the United States Court, in Williamson v. States, United 512 U.S. 594, 114 S. 129 Ct. L. Ed. 476 2d held that the (1994), hearsay federal exception for penal statements against Fed. R. interest; see Evid. (b) (3); 804 on which Conn. 1 majority acknowledges admissibility that the raised state the issue of yet appeal, evidence before the trial court and in this majority light concludes that it “need not examine” that issue in of its secondary concerning resolution application issue the trial court’s State, 811, 820-21, the test set forth Shabazz v. Conn. A.2d 797 (2002), granting newly new trials on the basis of discovered evidence. majority opinion. Footnote 22 of the permits only patterned, is (4)2

Code Evid. 8-6 § statements and not collat- self-inculpatory of admission a made within broader statements, eral “even if are self-inculpatory.” Williamson that is generally narrative States, supra, United v. 600-601. statements of most to the issue Bryant made that are relevant is to a new trial are petitioner whether entitled petitioner and incul- exculpate Bryant and the those that Has- Bryant’s classmates, Adolph of former pate two not Tinsley. These statements are and Burton brouck or jurisprudence our admissible, either under current I the rule set forth Williamson. conclude Accordingly, a is not entitled to new because that the exculpate peti- none statements of admissible, and, therefore, tioner would be at a produce a different result evidence could new trial. law, against penal the statement

Under Connecticut has in our exception its roots decision hearsay interest DeFreitas, 431, 449-52, 426 A.2d State v. 179 Conn. DeFreitas, adopted rule, “we a consistent 799 (1980). Mississippi, 284, 93 S. Ct. Chambers v. U.S. [410 with rule 1038, L. 2d 297 and accord (1973)], 35 Ed. Evidence,3 which the Federal Rules (3) 804 (b) that, although 8-6 Code of Evidence has been § 2 I Connecticut note years, (4), the subdivision issue in in recent subdivision amended Hereinafter, inception present case, since in 2000. has not been amended its (4) of Code of Evidence § to 8-6 the Connecticut all references citations are to the current edition. 3 provides part: (b) of Evidence in relevant of the Federal Rules Rule 804 by hearsay exceptions. following “Hearsay are rule not excluded —The is as a witness: if the declarant unavailable “(3) against was at the time of interest. —A statement which Statement interest, contrary pecuniary proprietary making its so far to the declarant’s or subject liability, or to declarant to civil or criminal or so far tended to another, against reasonable render invalid claim declarant position person unless would not have made the statement in the declarant’s tending expose believing A the declarant it to be true. statement liability exculpate is not offered to the accused admissible criminal clearly corroborating indicate the trustworthiness unless circumstances . . .” statement. provides trustworthy party against third statements penal exculpatory interest are the defendant, [that] are admissible if (Cita- the declarant unavailable.” State tions omitted; quotation internal marks omitted.) v. Payne, 219 Conn. 114, 591 A.2d 1246 Sec- (1991). tion 8-6 the Connecticut Code of (4) Evidence embod- hearsay exception ies the DeFreitas recognized in Lopez, State progeny. affirmed its v. See, e.g., State v. Conn. 56, 70-71, 681 A.2d 950 Mayette, (1996); 571, 576-77, Conn. 529 A.2d 673 Section 8- (1987). 6 of the (4) provides Connecticut Code of Evidence trustworthy against penal statement interest “[a] that, at time its subject of so far tended to making, liability the declarant to per- criminal that a reasonable position son in the declarant’s would not have made person statement unless the it believed to be true” is exception as an hearsay admissible rule when the declarant is as a unavailable witness. 8-6 Section “ provides (4) further determining the trustwor- [i]n thiness against penal of statement interest, the court shall consider (A) time statement made was person and the to whom the was made, statement (B) of corroborating existence case, the extent to which (C) the statement against penal declarant’s interest.” In whether determining a statement is admissible under hearsay exception against declarations penal interest, the trial court must engage step a two analysis. See, Savage, State v. e.g., 34 App. Conn. 166, 172, 640 A.2d 637, denied, cert. 229 922, Conn. 642 A.2d 1216 (1994); see also United States v. Barrett, F.2d 539 244, 251 (1st Cir. 1976) (applying step analysis two under Fed. R. Evid. 804 [3]); United States v. Bagley, [b] 537 162, F.2d 165 Cir. (5th 1976) (same), cert. denied, 429 1075, U.S. Ct. 816, 97 S. 50 L. Ed. 2d 794 (1977). First, the court must determine whether the statement actually issue is against penal the declarant’s interest.

526 Brainard, 1117, 690 F.2d United States v. See, e.g., is penal statement against (4th 1982) (whether 1124 Cir. If the court concludes inquiry). interest threshold step to the second proceeds the court is, that it then of trustworthiness it determine the under which must all the relevant fac- by “considering] the statement presents whether the statement determinfing] tors reliability justify its admission.” sufficient indicia (2008). A.2d 993 598, 631, Conn. 960 State Smith, v. 289 501, Gold, State v. 619, 431 A.2d cert. 180 Conn. 101 Ct. 66 L. Ed. 2d 320, U.S. S. denied, 449 of statement formally adopted we the definition (1980), in rule (b) (3) interest contained penal against “We Evidence, stating: per are Federal Rules of (3)] logic (b) and soundness suaded [rule and inflexible definition reject the trend to narrow in favor of a defini against penal interest a statement only confessions, but other tion which includes declarant to incriminate the remarks which would tend with the crime.” charged she the individual were or definition, that are statements 642. Under this Id., inculpatory, but being short of “exceedingly [fall] may qualify (Emphasis admission. confession,” In that addition, 642-43. statements Id., added.) an that the declarant has impression strengthen may admissible, of the crime” be knowledge “insider’s imply the declar strongly as are other statements that See United participation a crime. personal ant’s Barrett, supra, F.2d 249 state States (declarant’s v. 539 have some trouble from that he was “going ment stamp respect alleged from California” with people involved,” wasn’t but theft defendant] “[the evidenced insider’s knowl party],” “it was [another was therefore admissible of crime and edge [internal Alvarez, States v. United quotation marks omitted]); Cir. state 694, (5th 1978) (declarant’s 584 F.2d 699-700 up drug set trans- calling defendant to ment that he

527 against penal interest). action constituted statement Although penal our definition of interest” “against encompasses crimes, more than confessions to it is not provide without limits and statement “does ‘possibly ‘maybe which could’ or lead to criminal might’ liability contrary, only is on the those admissible; state- subject’ ments that ‘so far tend to declarant to crimi- nal liability, person such that ‘a would not reasonable have made it unless were true’ it are admissible.” United Butler, 243, States v. F.3d Cir. see (7th 1995); also Conn. Code 8-6 In determining § Evid. whether (4). this is met, standard statement must examined be “in light surrounding all the Wil- circumstances.” States, supra, liamson v. United 604; 512 U.S. see also Lopez, v. State 254 Conn. 316, 757 A.2d (2000). present case, the trial court concluded that Bryant’s statements were “clearly against penal Specifically, interest.” the trial “Bryant court stated: places Haven, himself Belle on the night the mur- der, company victim], discussing [the assaulting Tinsley Hasbrouck and [the victim] in possession of clubs golf to the belonging Skakel family. away Efforts to explain possible evi- physical dence indicate a guilt. consciousness of . . Bryant . attempts explain away possibility finger- that his prints might be found weapon murder or another golf nearby. club . ..

“Considered with the fact has asserted his [privilege against after being served self-incrimination] subpoena with a testify at a deposition, totality of circumstances Bryant’s story indicates that . . . against penal his interest.”

I The first issue is whether the trial court abused its discretion in cohcluding Bryant’s statements were penal “against interest” within the meaning [his] matter, As I (4). preliminary Evid. 8-6 § Conn. Code Tinsley’s undisputed is that Hasbrouck’s note that it penal against are their statements alleged Tinsley have invoked Because Hasbrouck interests. and, thus, are self-incrimination privilege against would be witnesses, those statements unavailable as testify them, long as if were to admissible requirement of trustworthi- the statements satisfied Bryant, 8-6 (4). in Conn. Code Evid. § ness set forth self- privilege against however, also has asserted testify present in the case. and refuses to incrimination Bryant’s is unsworn state- all we have before us Thus, contained to various individuals and those ments made hearsay. all of which constitute recordings, in video Hasbrouck’s Therefore, regarding statements him hear- statements to constitute Tinsley’s alleged hearsay. “Hearsay within hearsay, or double say within only combined hearsay part if each is admissible hearsay independently admissible under statements see also State 8-7; v. Conn. Code Evid. exception.” § 802, A.2d 1140 Lewis, 245 Conn. (1998) hearsay is offered that contains a statement (“[w]hen hearsay level of must itself be hearsay, within each hearsay rule in order exception an to the supported Accordingly, hearsay admissible”). to be for level turns on any Bryant’s statements admissibility Bryant’s penal interest. against whether are appeal, is well On Our standard of review settled. admit evi- trial court’s decision to review the “[w]e . law . . if a correct view of the dence, premised on Saucier, of discretion.” State v. 283 Conn. an abuse “The trial court has wide 207, 218, (2007). 926 A.2d 633 relevancy admissibil- discretion to determine [and . omit- quotation . . .” marks ity] (Internal of evidence J., v. Cecil 813, 818, 291 Conn. 970 A.2d State ted.) every such, As will make reasonable 710 (2009). “[w]e ruling in favor of trial court’s presumption upholding

529 . .” quotation . . “In (Internal omitted.) marks Id. an whether there has been abuse of determining discre- tion, the ultimate issue is whether the court could rea- sonably Orr, conclude as it did.” State v. 291 Conn. 642, 667, 969 A.2d 750 (2009). my view, the trial court abused its discretion Bryant’s

concluding that statements were against his penal interest within the Conn. meaning of Code Evid. (4). 8-6 A review of the § evidence reveals that subject” none his statements him “so far tend[ed] liability. (Emphasis added; criminal quota internal tion marks omitted.) Butler, United States v. 71 supra, Indeed, Bryant’s F.3d 253. it is doubtful that statements “possibly even or maybe” could” “might lead to criminal liability. (Internal quotation marks Id. As the omitted.) stated, Bryant’s trial court aptly merely statements “are claims of accompanied information a crime [about] his alibi.” Moreover, the trial explicitly court found that only were statements “minimally against his (Emphasis interest.” added.) Neither this court nor the Appellate Court ever has held such innocuous state ments to be admissible under the hearsay exception against penal statements fact, only interest. In appellate Connecticut decisions in which statements were held qualify for admission under hearsay this exception are those in which the statements at issue implicated somehow directly declarant in crime. See, e.g., v. Smith, supra, State 289 Conn. (declar ant’s statements against penal were interest because they directly implicated him in unsolved murder and included chilling detail); State v. Camacho, Conn. 328, 358-60, 924 A.2d 99 (declarant’s dual inculpatory statement that he had admitting instructed defendant to kill people helped two defendant flee after murders was admissible under Conn. Code Evid. § 8-6 cert. [4]), denied, 552 96, U.S. 128 S. 388, Ct. 169 L. Ed. 2d 273 State v. (2007); Pierre, 277 Conn. 68-69, 890 A.2d pro in which declarant inculpatory 474 statement (dual his own actions and accom vided details both grisly penal was declarant’s plice’s against actions in murder implicated him in squarely interest because statement 1197, 2873, 126 S. Ct. 165 denied, 547 U.S. crime), cert. Rivera, State 351, v. 268 Conn. (2006); L. Ed. 2d 904 was “statement (2004) (declarant’s 844 A.2d 191 368, . interest . . against penal squarely he] [because [his] burglary given in a that had participation his admitted Lopez, State supra, v. 254 Conn. homicide”); to a rise to murder was his against confession (declarant’s 317 155, Schiappa, State v. 132, 248 Conn. penal interest); inculpatory dual statement (declarant’s 728 A.2d 466 penal interest because squarely was against denied, participation crime), cert. his own admitted 152, (1999); S. 145 L. Ed. 2d 129 862, 528 U.S. 120 Ct. Bryant, State v. 676, 696, (1987) 523 A.2d 451 202 Conn. but burglary that he committed (declarant’s statement very “in real sense self-incrimi sexual assault was not natoiy unquestionably against interest” [internal Gold, supra, State v. 180 quotation omitted]); marks murder held 632, confession to (declarant’s Conn. 639 State v. penal interest); statement against admissible as 174 statement Savage, supra, App. (declarant’s 34 Conn. it heroin, “but possession bag that he was was or from purchased not [the defendant]” penal interest statement declarant’s against [internal Lynch, 21 Conn. State v. quotation omitted]); marks dual incul 386, 389, 398, (declarant’s 574 A.2d 230 App. you’re going only way that “the patory statement planning town through this transaction get [the] this commis ... is to cobroke zoning [commission] . . will], . . . in turn . sion with defendant] [the [who as state declarant],” held admissible take care of [the quotation marks penal ment interest against [internal 580 A.2d 63 denied, 216 Conn. omitted]), cert. 246-50, Rosado, cf. State v. 239, 243, 218 Conn. (1990); (declarant’s 588 A.2d (1991) drugs statements hers and that to do with nothing were defendant had penal it her against interest, although were suffi- ciently trustworthy to be admitted).4 the present case, statements, none of implicates context, when viewed in in a crime. Therefore, precedent there is no for their admis- legal addition, sion. In I specu- conclude that the court’s single jurisdiction, The dissent fails to cite case from our or other, matter, against for that in which a be statement was held to penal actually implicate declarant’s interest when that not statement did Indeed, Rather, the in crime. declarant no such case exists in Connecticut. heavily the dissent relies on certain broad statements contained in State v. Bryant, supra, completely ignoring 202 Conn. while the facts in gave Specifically, Bryant, that rise to those statements. the declarant’s against penal were held to statements be his interest he because admitted committing felony burglary. id., Similarly, to See 696. the dissent relies on Supreme Paredes, the Iowa Court’s decision in State v. 775 N.W.2d (Iowa 2009), proposition may for the that a statement be admissible under hearsay exception penal against though the for statements interest the even explicitly responsibility Again, however, declarant denies for the crime. the ruling. dissent has failed to the disclose factual basis for the court’s Paredes, endangerment the defendant was convicted of child after infant his syndrome. diagnosed baby Id., appeal, child was with shaken On 557. Supreme Iowa Court held that the trial its court abused discretion in declin ing to admit various statements that were made the infant’s mother as against penal Id., particular, statements interest. 570. In held court although hurting infant, previously the mother denied she had admitted only id., 568-69; caregivers; that she and the defendant were the infant’s quotation (Internal stated that the defendant “did not do it . . . .” Id., omitted.) Accordingly, that, “by making marks 568. the court concluded exculpate tending defendant], indirectly to statements was [the [the mother] implicating person injuries.” Id., as herself who caused the 569. In the present case, comparable remotely anything there are no admissions undisputed hearsay exception It against criminal. is that the for statements penal only interest includes “not confessions” also but statements that are “exceedingly inculpatory, being but short of a confession . . . .” [fall] (Emphasis added.) Gold, supra, disputed, State v. 180 Conn. 642-43. It is however, present sufficiently whether the statements at issue in the case are inculpatory qualify for admission under that standard. The dissent fails any legal authority supporting statements, cite to the admission of like Bryant’s, are, accurately described, “minimally that against as trial court interest.”(Emphasis added.) his Bryant’s guilt consciousness alleged as to lation be fingerprints his possibility might “the that regarding supported by weapon” murder found on the that the trial court’s charac- I further conclude record. “discussing Bryant’s statements terization Tinsley” with Hasbrouck and assaulting [the victim] unfairly Bryant made inaccurately suggests discussions, those during statements self-inculpatory opposite. Accord- fact, record reveals when, the trial court’s conclusion I conclude that ingly, been admissible was would have landscape and factual legal in view of the not reasonable I case. therefore conclude present circumstances its discretion. that the trial court abused in Belle Haven First, statement penal is not his against the murder night on the Code Evid. 8-6 meaning § Conn. interest within far alone, does not so presence, (4) (1) because liability for victim’s subject criminal him to tend Bryant states, the fact that murder, especially light many in Belle reflects, people were the record Bryant specifically states that night,5 (2) Haven that Manhattan, York, New from the a train back to took Greenwich, departed p.m., around 9:35 which town Thus, when viewed victim was murdered. before the that, totality of circumstances indicates context, the in Belle Haven on the Bryant may have been although on places himself either murder, Bryant evening of in Manhattan at the time murder, of the a train or 5 teenagers Bryant to fifteen socializ that there could have been ten stated addition, p.m. night ing of the murder. meadow around 9 in the at criminal Pugh, that the state called Andrew a witness p.m., approximately trial, and 7:30 he was behind testified between neighborhood Maria Coom twelve” children. house with “ten or Skakels’ witness, hearing araswamy-Palkenstein, on the also testified another large group” people petition observed “a for new that she had a up house, group split within and reassembled Skakels’ and that near the throughout night. neighborhood thereby completely possibility par- ruling out the of his ticipation in the crime.

In my was view, illogical it trial court to con- Bryant’s clude that statement he was in Belle Haven night on the was against penal murder his interest. extreme, Taken to the the trial court’s would dic- logic every eye- tate that out-of-court statement made an to a crime witness would constitute statement against penal simply eyewitness interest because the pres- was ent crime, any at the scene without regard to temporal Further, scheme, considerations. under this all such statements would be admissible under the hear- say exception for if penal statements interest against testify. the witness This, course, is unavailable to illogical and not the law. I

Second, conclude that statement that he picked up clubs, one of the “swung it,” Skakels’ golf . “[slung] it back to where the . . bag was” also does penal not constitute a against statement his inter- est. Notably, does not that he state touched the golf club used in the Indeed, murder. if Bryant’s statements are to be believed, it would not been have possible for him to have made such statement because he claimed know not even to how the victim was mur- dered.6 Thus, at the time of statement, Bryant his would not have known that handling one of the golf Skakels’ clubs could against penal be interest.7 This fact 6Specifically, Bryant day, stated: “I never wanted know. ... To this any autopsy reports. I have any books, never looked at I have never read any magazine I articles. don’t want to know.” perfectly [Bryant], virtually The dissent states “it is clear like everyone profile case, high generally else with connection to this aware victim had been beaten to death.” Footnote 47 of the dis senting opinion. aware, if change Even was so it does not the fact instrumentality that he claimed to be unaware of the used commit the Many objects murder. bludgeon, can be used to such aas baseball bat or Bryant believed, handling hammer. If is to be he could not have known that golf against penal one of the Skakels’ clubs be could more his interest handling than Thus, one of the Skakels’ tools or other household items. admitting penal rationale against the statement as a statement interest concerning speculation the trial court’s

alone undercuts “the Bryant’s guilt regarding consciousness alleged on the might be found possibility fingerprints that his on which Conn. weapon,” and the rationale murder v. Bryant, See State 8-6 is founded. (4) § Code Evid. is not the fact that the declara- 202 Conn. 696 supra, (“it fact the awareness of that is interest but against tion the statement gives significance” declarant [that] v. see also State omitted]); marks quotation [internal Rivera, supra, that declarant (fact 268 Conn. 368-69 making before state- drove witness to remote location defendant done ment, told witness that repeat witness not to and admonished something wrong that declarant “reason- clearly established statement against that statement was ably could have foreseen” penal interest). his victim was Bryant if knew how the addition, even golf his the Skakels’

murdered, regarding statements that those context, demonstrate clubs, when viewed penal insufficiently against are interest statements pursuant (4). § to Conn. Code Evid. 8-6 to be admitted “[everybody in Belle Bryant stated that Specifically, clubs went clubs,” those and that “those Haven touched people’s hands." added.) through tons of (Emphasis implicate no more Bryant’s statements Accordingly, “ verybody in Belle Bryant murder than in the victim’s [e] qualify . .” This insufficient as state- Haven . . is interest, especially light of against penal ment he was not in Belle Haven Bryant states that fact murder. at the time with trial court’s characteriza- I

Finally, disagree an Bryant’s statements as admission tion of Hasbrouck and assaulting “discuss [the victim] [ed] however, apply. If, suggesting is knew that the dissent does fact, weapon, was, golf then the murder one of the Skakels’ clubs such, and, conflicting his state- reveal that he untruthful statements trustworthy. ments are not Tinsley” inaccurately unfairly it implies because Bryant seif-inculpatory during made statements Quite discussions, when, fact, those he did not. opposite, Biyant makes it that it was Hasbrouck clear who was “obsessed” with the victim and who “talked her, main about focus.” [Hasbrouck’s] Moreover, Bryant Tinsley’s stated that Hasbrouck’s and alleged comments on the of the murder made him night “uncomfortable,” made his decision to home “a lot go any part Bryant easier” and that “didn’t want of it.” further himself and Tinsley distances from Hasbrouck by that he stating goad anybody any- “didn’t into doing thing,” and, in often contrast, discouraged Hasbrouck by “[y]ou him telling need think something about somebody else. You need to think about else that is obtainable, more happen because it is not going to [with you.” She’s not even In sum, interested her]. totality of Bryant’s statements reveals although Tinsley allegedly Hasbrouck and talked about going style,” Bryant “caveman had any never interest in or participated in or Tinsley’s fantasy. Hasbrouck’s problem with the trial court’s characterization of Bryant’s statements is that the court failed to consider Bryant’s role in the actu- discussions and what ally said. It is evident that the determination of whether against statement penal declarant’s interest requires an examination of the declarant’s actual state- ment, just and not its context. In present case, however, the trial court apparently leaped to the conclu- that Bryant’s sion statements regarding the discussions against penal were simply interest because he was present while Hasbrouck and Tinsley were making their statements against penal interests. This was unreasonable improper.8 analysis my The dissent mischaracterizes statements incor

rectly stating Bryant’s disserving that I examine each of statements “in they actually spoken isolation” and “out of the context in which were . . . analyzed Bryant’s simplistic manner, If my I had this statements in then analysis may proceeded following have in the manner: states he was the trial court abused its discretion concluding evidence, that cases Bryant

in the I also note admitting jurisdiction jurisdictions in federal have this and various inculpatory that were far more held that statements sufficiently against Bryant’s statements were not than penal See, e.g., to be admissible. the declarant’s interest Bonty, United States 575, (7th v. F.3d 579-80 Cir. “had statement that codefendant (declarant’s 2004) against to with was not nothing do the [sexual assault]” interest because declarant denied sex penal declarant’s Simply being present night in Belle in of the murder. Belle Haven on Bryant’s against penal Thus, not is not a crime. the statement was Haven proceed my analysis Clearly, that does not in crude fashion interest. Rather, foregoing analysis reveals, given suggests. as the I have the dissent Bryant’s statements, and context renders due to the context of that deference Bryant’s penal insufficiently against be admissible interest to statements qualified Specifically, Bryant (4). § his statements under Conn. Code Evid. 8-6 murder, that he was not Belle Haven at time of with assertions night murder, many people on of the that were in Belle Haven golf clubs, everybody he not Haven touched the Skakels’ did Belle any part murdered, and that he “didn’t want of’ know how victim was Tinsley’s plan. provide alleged assertions context and All these Hasbrouck Bryant’s expose recognized and them for what the trial court statements accompanied by being a crime claims of information “[mere] [about] [Bryant’s] alibi.” and, instead, ignores an this actual context relies on inaccurate The dissent summary Specifi- hyperbolic the “context” of statements. and “Bryant places cally, himself describes the context as follows: the dissent victim, shortly company crime, in the before the at the scene of the weapon, possible discussing murder, holding an murder and attack persons introduced and with the two whom victim —both murder, who, shortly brought victim’s after the boasted Belle Haven — disturbing having What is most about this about committed the crime.” dissent, zeal that the in its to find the characterization is point longer admissible, no “facts” where are has stretched the by supported The actual facts contained the record reveal the evidence. Tinsley having about committed the that Hasbrouck and never “boasted added.) contrary, is, (Emphasis crime,” the victim’s murder. To Tinsley Bryant explicitly stated that Hasbrouck never confessed any alleged murdering the details about their victim and never disclosed Indeed, Tinsley’s alleged com- in her murder. Hasbrouck’s involvement always were mention of the victim name and ments never contained as, mine,” it,” terms, got vague did such “I “[w]e “[w]e couched fantasy.” our achieved ually victim, though pick even he admitted to assaulting up victim at mall and her to his ing shopping taking Butler, United States v. home, occurred); where assault supra, 71 F.3d 252-53 statement (declarant’s was in police room when arrived and found guns against penal not declarant’s interest because declarant State remotely “did not admit to anything criminal”); Snelgrove, v. 742, 769, 288 Conn. 954 A.2d 165 (2008) (declarant’s statement that victim “got what she deserved” was not against penal interest because it did imply responsible that declarant was for victim’s death, even though subsequently declarant confessed to murder omitted]); State quotation marks v. [internal Bryant, 61 App. 574, Conn. 565, 767 A.2d 166 (2001) (declarant’s admission that shot victim was not against penal his interest because he claimed that it inwas self-defense and declarant “must have known people at the scene seen him a gun fire at [the v. Jones, State victim]”); 640, 46 Conn. App. 648, 700 710 A.2d (declarant’s statement that friend told declar party] ant third had shot last night” “[a [the victim] was not against penal interest, declarant’s even though declarant admitted involvement in murder [internal quotation denied, 941, marks cert. 243 omitted]), Conn. Watkins, State v. 704 A.2d 797 (1997); App. Conn. 67, 74, 540 A.2d (declarant’s written statement he owned car in which shotgun was found but did not know shotgun was there could not be considered penal against interest), denied, cert. 208 Conn. 545 A.2d 1102 (1988). present

In the case, Bryant does not or admit to any intimate any Bry- involvement with crime. Instead, merely points ant at Tinsley finger Hasbrouck and while claiming he, himself, is totally innocent. addition, Bryant’s do statements not strengthen the impression that he has an “insider’s knowledge State v. Bryant, supra, 202 Conn. 695. To the [crime].” pre- he was not contrary, Bryant specifically states that and “never wanted to when the murder occurred sent day murdered and this how the victim was know” “[t]o . . any autopsy reports . . . . never looked [has] magazine . . . articles” that books read [or] Furthermore, Bryant states that described the murder. Tinsley murdering never confessed to and Hasbrouck any details about their victim and never disclosed Indeed, Hasbrouck involvement her murder. alleged the victim name Tinsley never mentioned their Bryant, comments comments alleged their vague terms, as, such always were couched “[w]e fantasy,” achieved achieved it,” did our “[w]e “[w]e style.” Thus, caveman,” got girl caveman “[w]e an only that he lacked not Bryant’s statements reveal knowledge of the crime but also knowledge insider’s available. publicly crime that were of details of the it was for the circumstances, unreasonable Under these would conclude that the trial court to penal interest under against be admissible statements Accordingly, I conclude that Evid. 8-6 (4). § Conn. Code concluding abused its discretion court be admissible. Conse- statements would petitioner I not entitled quently, also conclude that the Bryant evidence would not be to a new trial because the produce different and, therefore, could not a admissible at new trial. result a

II Bryant conclusion that the light In of the dissent’s against of a the definition statement evidence satisfies Code Evid. penal meaning within the Conn. interest factors I next address trustworthiness (4), 8-6§ Evid. 8-6 which com- (4), § Conn. Code enumerated part determining test for prise step two the two penal See, interest. admissibility of against declarations A Savage, supra, App. 171-72. State v. 34 Conn. e.g., trial court Bryant’s statements reveals that the review of abused that suffi- concluding its discretion were ciently trustworthy to be under Conn. Code admitted (4). Evid. 8-6 § requires first trustworthiness factor the court to “the

consider time the statement was made and the person to whom the statement was made . . . .” Conn. Code Evid. 8-6 With (4). § the timeliness regard prong, general, prompt a declaration is considered to be trustworthiness, indicative of delayed whereas state- typically untrustworthy. ments are deemed be See, e.g., State v. Lopez, supra, present 254 Conn. 317. case, the trial court found “[a]lthough acquired his days information within offense, . . . it to kept himself for than quarter of one] [more centuiy . . . finally [it], he disclosing [and] [o]n insisted . anonymity . . did not come for- [on] [and] voluntarily ward . . .” .

Neither the trial court, the nor dissent has any legal authority, identified jurisdiction from this or any other, supports a finding of trustworthiness with respect to a statement that was made more than years two following subject the crime that is the statement, let alone one was made more than years twenty-five later, such statements present case. Although the trial court identified various reasons for the delay, reasons Bry- those do not make ant’s statements any timely more or trustworthy. More- over, several of the reasons the trial court dissent cite are speculative and presume facts not in or evidence, support. otherwise lack Specifically, both the trial court and the dissent refer the fact that and, has law degree therefore, somehow knowledge there was no statute limitations for murder in Connecticut in 1975. In addition, both the rely trial court and the dissent conclusory statement to Vito Colucci, private inves- tigator, that it would have been “easier” for the state

540 petitioner. Neither Bryant than the have convicted to merit; support finding do a has nor these reasons trustworthiness. degree a from Bryant obtained law just because First, Law does not neces University Tennessee School of whether any had sarily knowledge mean that he limitations for murder had a statute of Connecticut passed state’s bar Bryant never Indeed, in 1975. trial court’s examination, alone Connecticut’s. The let because, is further flawed the dissent’s conclusion in Connecticut law when Bryant if was well versed even early 2000s, in the he would his he made statements year Connecticut had 1975, have known five murder. See General Statutes statute limitations for his Moreover, making state 1975) to 54-193. (Rev. § have further comforted ments, Bryant would been Paradise, Conn. State v. 189 court, that this the fact held that the 1976 amend 456 A.2d 305 346, 350, (1983), 1975) 54-193; to Public (Rev. General Statutes § ment to excepted “which 1976, 76-35, (P.A. 76-35); No. § Acts murder, purview felonies, including A from all class retroactively offenses com 54-193, apply did § date of P.A. April 6, 1976, the effective prior mitted Skakel, 664, A.2d State v. 633, 276 Conn. 76-35.” 166 L. 1030, 578, 127 S. Ct. denied, cert. 549 U.S. Paradise remained 2d Our decision (2006). Ed. twenty-three years, including law in this state his state Bryant frame in which made during the time respect until 2006 with ments, not overruled and was period preamendment limitation for which the offenses P.A. became effective. yet expired when 76-35 had not Skakel, supra, 666, Thus, 693. unless State v. in Skakel clairvoyant our 2006 decision

was foresaw presume that statements, we must when he made year five statute of that there believed expired respect since long limitations that murder. the victim’s

541 The second prong of the first trustworthiness factor “require testifying witness [s] [about] statement ... be one in whom the [declarant’s] naturally quotation declarant would confide.” (Internal Lopez, supra, State marks v. omitted.) 254 Conn. 317-18. The rationale is that “[acknowledgment of criminal activity generally only or per made confidants imposes sons in whom the declarant trust.” United Goins, States v. 88, (8th Cir.), denied, 593 F.2d 91 cert. 9 827, 100 52, 444 U.S. Ct. 62 35 Thus, S. L. Ed. 2d (1979). must be relationship parties a in which the two “[t]here to the conversation a had close and confidential rela Rivera, State v. tionship.” 58, 221 70, Conn. 602 A.2d 571 (1992). establishing requisite burden “[T]he relationship proponent rests of the statement.” v. Lopez, supra, State 254 Conn. 318. present

In the case, Bryant initially stoiy disclosed his Biyant’s to Crawford Mills, former Although classmate. the trial initially court described Mills as “a friend that [Bryant] trusted,” the trial later court clarified that their relationship was junior one of mere “former high school . . classmates . casual contact only maintained [who] years.” over the (Emphasis added.) addition, Bryant absolutely no relationship with cousin, Robert Kennedy, Jr., or prior Colucci, making subsequent his revelations to them. Accordingly, because did not have a close and confidential relationship persons with the to whom he made his statements, it is unlikely actually believed those against penal statements were his interest, and the evidence in the support record does finding that this factor weighs in of admissibility. favor See Lopez, State v. supra, 254 (nine Conn. 318-19 year rela- true, generally is, converse this rationale also is aif declarant person makes statement to a whom does not share a close and relationship, unlikely confidential then isit that the declarant’s statement against penal interest. factor satisfy trastworthiness

tionship insufficient confidential); relationship was not close because Hernandez, 393, 204 Conn. see also State v. factor not satisfied (trustworthiness A.2d 794 (1987) was made to stranger). statement when declarant’s the court requires factor The second trustworthiness corroborating evidence in “the existence of to examine repeat- We (4). . . .” Code Evid. 8-6§ the case . Conn. require- edly that corroboration emphasized have “[t]he party a third statement for admission of ment goes beyond and penal significant interest against inter- minimal corroboration.” (Emphasis original; Lopez, supra, State v. 254 quotation marks omitted.) nal Rivera, supra, 319; accord State 71; v. 221 Conn. Conn. Bryant, State v. Rosado, supra, 249; 218 Conn. State v. “the statement must Accordingly, 202 700. supra, Conn. circumstances by corroborating accompanied be clearly indicate statement’s trustworthiness.” Lopez, supra, State v. 319. (Emphasis original.) this the trial court’s treatment of It is clear from legal the foregoing its to reference factor, and failure applied nor was neither standard, that this standard Bryant’s accu- examining than whether satisfied. Rather Tinsley were corrob- Hasbrouck and implicating sations finding its of corroboration the trial court based orated, that have no peripheral findings bearing aon host of Tinsley the mur- Hasbrouck and committed on whether explicitly found that the trial court Moreover, der.10 and Bryant’s claim is minimal” corroboration for “[t]he “corroborating following Specifically, evi the trial court relied on the independently but, rather, dence,” corroborated much of which prior “Bryant to . . . statements: went Bruns own corroborated children in the Belle . . . and was classmates with the wick School neighborhood. Haven witnesses, including . . . Neal “Several Mills [childhood friend] Bryant Walker, Haven. socialized Belle confirm[ed] [in] petition trial], hearing a new witnesses confirm[ed] “At [on present Bryant [previously that he Belle been] indicated had] [had night Haven on the of the murder. Bryant . . . any genuine is absent “[t]he [evidence] corroboration,”11 explicit These (Emphasis added.) seeing Tinsley witness “One . . . Hasbrouck and . . . in Belle recall[ed] Bryant during Haven with the fall of 1975. Tinsley [Kennedy] “Both Hasbrouck and admitted to had been in Belle Haven with on several occasions. “Bryant provide descriptions layout Haven, also detailed of the of Belle [d] including people neighborhood accurate recitations of where lived. “According Bryant, feet, tall], Hasbrouck was two inches at least [six pounds ‘very homicide, strong.’ on the date of the “Bryant stated that . . . Hasbrouck was obsessed with . . . [the victim] go her,’ meaning ‘wanted to caveman on [that that he would club he] her, away by drag sexually her the hair and assault her. night murder, he, Tinsley “On the stated that Hasbrouck and golf residence, walked around Belle Haven with clubs from the [Skakels’] stating with Hasbrouck that he had his ‘caveman club’ and that he would not leave Belle Haven unsatisfied. multiple injuries “The victim had suffered and severe to her head and being by stab wounds to her neck were consistent with caused [that] piece golf golf body of club shaft. Pieces of the club found near the victim’s golf were the same brand of club found at the residence. Evidence [Skakels’] presented at the criminal trial shows that these clubs were commonly property.” left about the [Skakels’] 11The trial court following findings based these conclusions on the persons Bryant’s acquaintances fact: “Of all the circle of Greenwich time, them, Mills, none of other than Walker and recalled [Neal] [Has Tinsley]. brouck and any Not even closest friends [the have recollec victim’s] any Bryant, tion of association between and [the victim] Hasbrouck and Tinsley. puts company Bryant compan No one in the [the and his victim] night testimony ions on the [Bryant, There is no [the murder]. Has Tinsley] company any brouck or were in [the] other [of victim] Importantly, testify occasion. witnesses as to [the activities until victim’s] p.m. seeing Bryant 9:30 No one has recall of ever and and [Hasbrouck Tinsley] night in Belle Haven on the of the murder. Tinsley style’ “The claim that sup- Hasbrouck and went ‘caveman is not ported by being the evidence. There dragged was no evidence of the victim Missing Bryant’s hair. anything from concerning [her] statement is breaking [golf] stabbing of the club or the of the victim.” dissent, appellate tribunal; contravention of this court’s role as an 535, 978 A.2d 487 see, e.g.,Saunders v. Firtel, (2009) (“[A]ppel 293 Conn. late courts do not examine the record to determine whether the trier of Instead, fact could [they] have reached a different conclusion. examine the trial court’s legally conclusion in order to determine whether it was correct factually supported. appellate . . . This distinction accords with [an duty review, retry, ... proceedings to tribunal’s] and not to of the trial quotation omitted.]); ignores court.” findings marks [Internal these of fact support explicit the trial court’s conclusion that . . . “[t]he any genuine (Emphasis is absent added.) [evidence] corroboration.” These findings, course, dispositive admissibility are ofthe evidence. 544 wholly legal are inconsistent with our standard

findings “goes requires beyond level of corroboration inter- (Emphasis original; minimal corroboration.” Lopez, omitted.) supra, nal marks State v. quotation trial conclusion that Conn. 319. court’s Accordingly, as a mat- requirement this was satisfied was erroneous supra, v. See, Saucier, ter law. State Conn. e.g., court’s admission applies review (plenary interpretation based on its of Code of of evidence Evidence). requires trustworthiness factor

The third final “the extent which the statement court to examine penal interest.” Conn. Code the declarant’s against analyz- court, prior the trial (4). Although Evid. 8-6§ conclusorily stated that state- ing factor, this “clearly penal interest,” the trial against were ments court later contradicted itself concluded “[o]n merely claims of [Bryant’s are analysis, statements] accompanied by his alibi. The of a crime information his inter- appear minimally against to be statements I part As I discussed in of this added.) est.” (Emphasis qualify as a declaration for a statement opinion, of Conn. Code meaning interest within against penal “exceedingly inculpatory”-, it must be (4), Evid. 8-6§ Gold, supra, 644; v. 180 Conn. (emphasis added) State subject the declarant such that it “so tended far liability . . Conn. Code (Emphasis added.) criminal . .” the trial court’s Thus, Evid. 8-6 on the basis of (4). § part forth in I conclusion, own and for the reasons set conceding point findings fact, accepting these Rather than this facts culled from on its own selection of that it has the case dissent relies dissent, aptly states, regard, file In this it “violates the and exhibits. court, appellate jurisprudence principle of that the trial not this bedrock fact, consequently, court, and, findings those finder of we are bound is the clearly dissenting opinion, Footnote are erroneous.” unless Air, Services, citing Key Inc. v. Revenue Commissioner of 294 Conn. 231, 983 (“[t]o findings (2009) has made the extent that trial court A.2d clearly deciding findings fact, such were our review is limited to whether quotation omitted]). marks erroneous” [internal of this I opinion, conclude that the trial court abused its discretion in concluding statements sufficiently were against penal interest to be admis- sible under Conn. Code (4). Evid. 8-6 §

Ill Even if I assume, were to arguendo, court did not abuse its discretion in determining that portions of the Bryant evidence were against Bryant’s penal interest and satisfied the factors, trustworthiness I nonetheless would conclude that the trial court improperly concluded that all of the evidence, only rather than portions those Bry- that were against penal ant’s interest, would have been admissible at a new trial. In that the concluding evidence would be admissible in entirety, its the trial “Bry- court stated: ant’s statements against penal [admissible], interest are and his self-serving statements togo their weight preclude will not their admissibility under hearsay] [the exception penal declarations against [for interest].” This ruling premised on an interpreta- erroneous tion of Conn. Code Evid. 8-6 (4) § contravenes our decision in Bryant, State v. supra, 202 Conn. 676, and the United States Supreme Court’s decision in William- son v. United States, supra, 512 U.S. 594. “To the extent a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our . . . review plenary.” State v. Saucier, supra, 283 Conn. 218.

A In State v. Bryant, supra, 202 Conn. 696-97, we addressed the issue of whether the hearsay exception penal statements against permitted interest admission of narratives that contain both self-inculpa- tory and self-serving statements. Bryant, the defen- dant was convicted of burglarizing an apartment, sexually assaulting woman therein and her stealing pocketbook. Id., trial, 677-78. At the prof- defendant hearsay exception

fered, under the statements interest, various statements that his penal against for the of that his puipose showing brother had made peipetrator. Id., Specifically, 689. brother was the actual evidence that his brother had the defendant introduced had burglarized to several witnesses confessed apartment pocketbook. Id., and stole the victim’s the did admit not, however, The defendant’s brother 690. the Id. sexually victim. assaulting to held that the statements the defen- trial court because his admission brother were inadmissible dant’s was a the alone “selective declara- regarding burglary . . casts against penal tion interest . doubt [on] [that] to no offense sexual as which there the [of assault] [was] penal quotation interest.” against (Internal admission 695. we held that the omitted.) Id., appeal, marks On precluded defendant from improperly trial court statements, vacuo, “In offering stating: might one as to latter contend that silence [the brother’s] former has self- charge after direct admissions interest and thus statement short connotations complete crimes should not be confession both Any claim, however, into evidence. such lacks admitted . . . view that merit in this case. Our [when] with parts of a statement are intertwined disserving prudential it is more admit the self-serving parts, evi- statement and let the trier fact assess its entire dentiary quality complete (Emphasis in the context.”12 Id., 696-97. added.) incorrectly greater weight give we The dissent advocates that should Bryant, unambiguous holding. to its we to the dictum than among concerning on the divide commentators and some courts commented self-serving. problem disserving both See statements are Bryant, supra, stated, n.18. matter State v. 202 Conn. 696-97 We as a dictum, actually agreed— agree “inclined” we were that we —not statement,” rather with those commentators that “would admit entire only portion suggested “admitting disserving those who than part parts excluding self-serving the two can declaration and where be Nevertheless, opinion, in the text of our (Emphasis added.) Id. severed.” clearly disserving parts held that was it view . . . that we [when] “[o]ur present

In the trial court concluded that the case, Bryant entirety evidence was admissible in its without discerning Bryant’s self-inculpatory whether state ments were intertwined with his state self-serving ments. The trial law court’s mistake of is understand able in of light years, the fact over the commenta tors incorrectly requirement have omitted from this their C. commentary. Tait, See Evidence Connecticut 8.43.2; Ed. see (3d 2001) also Conn. Code Evid. 8-6 § § (4), commentary.13 part remains Nevertheless, it Bryant. rule in

Unlike the Bryant, statements issue in which it possible was court to sever the brother’s silence to charge as the sexual assault from his confes- self-inculpa- sion to burglary, purportedly tory present statements in are case severable from self-serving parts, prudential of a statement are with intertwined it is more evidentiary to and admit the entire statement let the fact assess trier of its quality complete (Emphasis added.) Id., Thus, in the context.” 696-97. Bryant, although possibly we about certain mused inclinations that we apply case, holding could in future our that case limited to a narrative disserving self-serving intertwined, in which the statements were holding applied. My it is that that is the law must be in this conclusion faithfully applies holding Bryant. case commentary (4) § 8-6 the Connecticut Code of Evidence provides part: disserving in relevant “When narrative both contains state collateral, serving statements, ments and self or neutral the Connecticut narrative, letting evidentiary rule admits the entire the ‘trier of fact assess its quality complete Bryant, supra, 697; in the context.’ State v. 202 Conn. Savage, supra, App. argues accord v. State 34 Conn. 173-74.” The dissent commentary dispositive respect that this to how Conn. Code Evid. (4) interpreted. view, however, § 8-6 is to be This is incorrect because the purpose quo, stated of the Code of Evidence was “to maintain the status i.e., preserve prior the common-law rules of existed adoption [c]ode, adoption modify its ‘notintended to [and] [was] any prior interpretation (Emphasis added.) common-law those rules.” commentary. (a), Thus, though commentary § Conn. Code Evid. 1-2 even incorrectly (4) Bryant, to Conn. § Code Evid. 8-6 contains dictum from it abrogates apply duty neither this holding binds court nor our the actual Bryant. DeJesus, 418, 421, (2008) v. See State 288 Conn. 953 A.2d 45 (despite adoption Evidence, appellate authority of Code of courts retain develop change case-by-case through adjudication). rules of evidence Therefore, only the former statements. self-serving court, Bryant’s to the trial According are admissible. On self-inculpatory following: statements include the Haven, was in Belle murder, (1) night clubs, picked up golf one of the Skakels’ (2) . where the . . bag it back to “swung it,” “[slung] and Biyant and the victim were was,” point, and at one (3) in the teenagers socializing fifteen ten to among Bryant, the rule in none of Notably, meadow.14 under Tins Bryant’s statements Hasbrouck and concerning they self-serving, ley15 would be admissible because are most Bryant’s penal and, on interest bearing have no Bryant’s with self- importantly, are not “intertwined” Bryant, supra, State v. 202 inculpatory statements.16 only statements are the state Conn. 697. Because these exculpate peti purportedly ments that serve to the inadmissibility precludes granting their the of tioner, new trial.

B Bryant that the evidence The trial court’s conclusion entirety in also is in contravention of is admissible its 14 any Although disagree with of these I the trial court statements Bryant penal by satisfy against meaning definition of interest within the the Evidence; part opinion; (4) see I of §of 8-6 of the Connecticut Code this that, analysis regardless agrees of whether one I include this to demonstrate portions Bryant part opinion, my I with of this conclusion Bryant exculpate be and would not admissible evidence and, therefore, event, could affect outcome not a new trial. 15 include, to, following: (1) are limited Those statements but not victim; Tinsley (2) was with the Hasbrouck and dis Hasbrouck obsessed before, night murder; (3) “going after and of the cussed caveman” night Tinsley Haven on the of the and and were in Belle murder Hasbrouck carrying golf clubs; following murder, (4) and were Hasbrouck Tinsley “achiev[ing] the caveman.” admitted Bryant’s self-inculpatoiy Although among the trial court lists statements night minder, “discussing assaulting on the of the [the Tinsley,” this characterization of state Hasbrouck victim] unfairly inaccurately supported it ments is not record because Biyant self-inculpatory during suggests made statements those discus sions, fact, opposite. part opinion. when, See I of the record reveals this in Williamson v. United Supreme Court’s decision Williamson, States, supra, 512 U.S. 594. In the issue was hearsay exception whether the for statements federal penal permits Evid. interest; (3); Fed. R. against (b) the admission that are self-inculpa- of statements tory when are made in the course a narrative William- that also contains statements. self-inculpatory States, United v. son supra, 599. Resolution this issue required the meaning court determine the word “statement” as used the rule. Id. The court noted that the word “statement” could be defined either report “a narrative,” as or which connotes an extended declaration, or “a declaration or single remark.” quotation marks (Internal omitted.) Id. Under the first definition, a declarant’s entire narrative would be if admissible, parts even it that self-inculpa- contains are tory parts self-inculpatory, that are not as “long in the aggregate sufficiently inculpates confession Id. Under the second definition, how- [the declarant].” ever, the rule only “would . . . cover those declara- or tions remarks larger within that are [a narrative] individually Id. self-inculpatory.”

The court principle held that “the behind the [r]ule . points clearly . . to the narrower reading. Rule 804 is (b) (3) founded on the commonsense notion that people, reasonable even people reasonable who are not especially honest, tend not to make self-inculpatory they statements unless believe them to be true. This simply notion does not to the extend broader definition ’ of ‘statement. The person fact that a is making broadly a self-inculpatory confession does not make more credi- the [parts ble confession that are self-inculpa- not tory]. One of ways the most effective lie to is to mix truth, especially falsehood with partic- truth that seems ularly persuasive because its self-inculpatory nature. . . .

550 actually is part confession self-

“And when of [a] (b) on which 804 exculpatory, generalization [r]ule applicable. becomes even less Self-excul- (3) is founded exactly people are the ones patory statements [that] they likely false; to make even when are are most statements other, self-inculpatory, proximity mere self-exculpatory plausibility of the does not increase . . . statements. general (3) or

“Nothing (b) text [r]ule admissibility theory hearsay suggests [r]ules a a statement is collateral should turn on whether The that a statement is self-inculpatory statement. fact reliable; it more but self-inculpatory does make self-inculpatory collateral a fact is statement says at all about the collateral state- nothing statement why reliability. see no reason collateral state- ment’s We . . . are neutral as interest ments, even ones that differently hearsay from other should be treated . . . that are excluded. generally statements view, most faithful reading “In court’s] [the is it allow admission of does not (b) (3) [r]ule even if self-inculpatory], that are not [statements generally are within a broader narrative that is made may self-inculpatory. just court assume [trial] is statement purposes (b) (3) of [r]ule confession, it of a fuller self-inculpatory part because impli- is true when the especially and this statement emphasis cates someone else.” omitted; (Citations Id., 599-601. added.) only (3) applies self-inculpa-

Although (b) rule 804 tory self-inculpa- a statement statements, “whether tory by [only] viewing or not can ... be determined that are their face it in context. Even statements on may declarant’s interest actually against neutral be the . light surrounding . . in of all the circumstances.” Thus, quotation Id., marks 603-604. (Internal omitted.)

551 particular in statement is admis- determining whether must (b) (3), sible under rule 804 consider judge narrative other surrounding entire circumstances in analyze rather each statement a vacuum.17 than yet this court has not for Although occasion to mally imprimatur its to the rule announced in Wil give States, 600-601, v. our supra, liamson United 512 U.S. previous opinions rule should fol indicate be Specifically, DeFreitas, lowed in Connecticut. in State v. 451-52, supra, explicitly 179 Conn. we stated that “the adopt respect party rule we to third statements [with penal is in with Federal against accord interest] in v. Evidence,” and, Gold, supra, Rules of State Conn. “we a step adopt[ed] further and [took] definition of against penal statement interest contained in Federal follows, therefore, Rules of Evidence.” It rule interpreted that our should be in the same manner especially as the federal rule, when the United States Supreme Court in interpreted very Williamson has formally definition that we in adopted Gold.18 17 Williamson, provided examples the court several statements might penal against are neutral their face but that be the declarant’s “ apartment’ may gun interest when viewed in ‘I in context: hid the Joe’s crime; help likely police not be a confession of a but if it is find the weapon, certainly self-inculpatory. murder then it is ‘Sam and I went to might against person Joe’s be house’ declarant’s if a interest reasonable being in the declarant’s shoes would realize that linked Sam to Joe and implicate conspiracy. would the declarant Joe and Sam’s And state other give police significant may also, ments that details about crime depending situation, against on the be the declarant’s interest.” Williamson States, supra, v. United 603. U.S. contrary Bryant 18 Iam mindful that the rule in Williamson is to the rule in admissibility respect self-inculpatory. to the of statements that are not Bryant, however, predates years, Williamson about seven and this court Bryant Bryant indicated no less than four times that was based on the particular Bryant, supra, circumstances of that case. See v. State Conn. addition, applied 695-97. In this court never has the rule in since announced, Appellate applied only it was once, Court has it State Savage, supra, App. 173-74, v. 34 Conn. also which was decided before Furthermore, Savage “incorporate Williamson. the statement at issue [d] disserving components, disserving and contextual rather than and self-serv ing components.” Id., Thus, applied 173. the rule in never has been

552 Bryant’s the bulk of statements present case,

In the and, thus, are inadmissible self-inculpatory are many state- in Of the rule Williamson. under hour video long contained an ments, including those context, could only when viewed three, recording, self-serving parts, disserving is which contains to a narrative that present Finally, presented type we are in the case. of narrative which implicitly question Rivera, supra, 351, we called into State v. 268 Conn. post-Williamson, Bryant, viability but deter- rule in continued was admissible under entire statement therein mined the declarant’s self-inculpatory Id., . . . .” statement was rule “entire either because n.18. 371 that have identified four sister state courts I note that the dissent has purposes Williamson rule in declined to follow the considered and penal hearsay exception against respective for declarations state’s their Newton, 563, People State v. (Colo. 1998); v. 966 P.2d 578-79 interest. See Sonthikoummane, Hills, 437, 447, (1998); State v. 957 P.2d 496 264 Kan. Commonwealth, 320-21, (2000); Chandler 316, v. 249 N.H. 769 A.2d 330 145 233, denied, 889, 270, 219, 279, 516 116 Ct. 133 S.E.2d cert. U.S. S. Va. 455 however, merely represent cases, (1995). are outliers L. Ed. 2d 162 These reality minority jurisdictions. over that the views of a small the rule of Williamson whelming majority of states that have considered Prasertphong, analysis. 70, adopted See, e.g., State v. 206 Ariz. have its State, 1083, (Del. 1994); 81-82, (2003); Smith v. 647 A.2d 1088 75 675 P.3d State, 1312, denied, Franqui (Fla. 1997), cert. 523 U.S. v. 699 2d 1320 So. Averett, 1337, 1040, (1998); State 2d v. 142 Idaho 118 S. 140 L. Ed. 499 Ct. Lucky, 845, State 879, 890-91, (App. 2006); v. 755 2d So. 857 136 P.3d 350 denied, 1429, 1023, 2d (La. 1999), 120 S. 146 L. Ed. 319 529 U.S. Ct. cert. 490, Mutusky, State v. 467, (1996); 682 694 State (2000); v. 343 Md. A.2d 1125, Ford, 214, denied, (Minn. 1995), 116 cert. 517 U.S. S. 539 N.W.2d 227 State, 15, (Miss. 1362, 134 Williams (1996); v. So. 19 Ed. 2d 667 2d Ct. L. 529 Castle, 363, 372-73, (1997); State v. State v. 1996); P.2d 688 285 Mont. 948 Torres, 477, 482, (1998), part on other 126 971 P.2d 1267 overruled N.M. Alvarez-Lopez, by State 309, (2004); grounds N.M. P.3d 699 State v. 136 98 Holmes, denied, 117-18, (2000), 113, 536 S.E.2d 671 cert. 532 v. 342 S.C. Dotson, State v. 906, 1230, (2001); L. 2d 139 254 121 S. Ct. 149 Ed. U.S. State, (Tex. 378, (Tenn. 2008); 952, v. 956 891 S.W.2d S.W.3d 392-93 Cofield Roberts, 494, 471, App. 1994, pet. denied); State v. Wash. 2d 14 142 Crim. Mason, 221, 230, (1995), State v. (2000); 194 W. Va. 460 S.E.2d 36 P.3d 713 Melching, by 366, part grounds State v. W. Va. on other 219 overruled in State, (Wyo. 1996); 358, (2006); Johnson v. 930 P.2d 363 see S.E.2d 311 Leach, Rptr. People 439, 296, 419, 541 P.2d Cal. v. 15 Cal. 3d also prior to that in Williamson (applying to its (1975) announcement similar rule 926, Supreme denied, Court), 424 U.S. 96 S. Ct. cert. United States (1976). 47 L. Ed. 2d 335 Bryant’s qualify against penal as statements arguably Bryant Haven the of (1) night interest: was Belle on Bryant murder; picked up the one of the Skakels’ (2) clubs, it,” golf “swung “[slung] and it back where bag was”; point, Bryant . . . at one (3) the victim were the ten to among teenagers fifteen socializing Bryant’s in the meadow. The of remainder Bryant statements are neutral or e.g., contextual — attended Brunswick School Greenwich —or are bla- tantly Bryant’s statements self-serving e.g., inculpat- — the rule of Wil- Tinsley. Hasbrouck and Under ing liamson, none of these statements is admissible.19 Bryant’s only Because self-serving statements are the statements exculpate petitioner, their inadmis- sibility precludes the granting of a new trial.

PALMER, J., dissenting. Contrary to the determina of court, tion the trial I petitioner, believe that C. Skakel, Michael is entitled to a new trial the 1975 Moxley murder of Martha in the Belle (victim) Haven discovery section of the of town Greenwich due to the significant new evidence was not available at the time of original particular, his trial. I am con vinced that improperly the trial court peti denied the tioner a new trial basis information brought Bryant1 forward “Tony” Gitano 1—information that directly implicates two suspects, Adolph other Has brouck and Burton Tinsley, victim’s murder— after failing significance evaluate the newly discovered light nature strength original I trial evidence. reach this conclusion Bryant because the evidence provided during the inculpating 19 Ifurther note that statements Hasbrouck and Tin sley inherently precisely type are unreliable and are of statements that hearsay designed See, e.g., States, rule is to bar. v. Williamson United supra, (“[s]elf-exculpatory exactly 512 U.S. 600 statements are the ones people likely false”). are most make even when [that] are opinion “Tony” Bryant. All references in this are to Gitano and detailed video-recorded inter- lengthy course necessary for a requirements all of the view satisfies Bryant evidence is relevant First, highly new trial. Tinsley per- it Hasbrouck and because identifies responsible for the victim’s murder. Sec- actually sons expressly found, ond, as the court be admissible at a evidence, although hearsay, would penal new declaration interest against trial under the hearsay because, alia, inter corrob- to the rule exception clearly indicate trustworthi- circumstances its orating the evidence is I also conclude that ness.2 hearsay exception residual to the admissible under the Third, by rule.3 because the evidence is marked substan- reliability, tial and because the record reveals indicia of Bryant or his background suggest about nothing person provide kind of who would either that he the testimony falsely people two innocent implicating any or that he had reason or motive to brutal murder improperly do the trial court failed consider so, context of the trial evi- original evidence the overall very least, likely at it is that this Finally, dence.4 the of the state’s evidence, light new when considered petitioner, would rise to a give thin case the against the reasonable doubt about whether 2Bryant privilege following against his asserted his self-incrimination interview, and, therefore, testify he is not at video-recorded available concluded, however, subsequent trial. The trial court his video-recorded trustworthy be admissible a new trial as declarations statements would against penal interest. did reach the issue of whether the The trial court exception hearsay rule also would be admissible under residual its that the evidence would be admissible under because of determination penal hearsay exception against for statements interest. credibility fully hereinafter, trial discuss more court’s determina As I reason, namely, fundamentally another, closely related, flawed for tion is predicated by finding the court that statements it is on a because improperly any genuine relied corroboration. The trial court on lack directly finding finding that the it contradicts the court’s threshold because and, therefore, significantly admissible under statements are corroborated penal hearsay exception against for declarations interest. in the of an involved victim’s murder. likelihood acquittal newly retrial dis- upon is enhanced other evidence, relationship covered namely, between investigator lead in the Frank Leonard case, Garr, the author of a about the murder Levitt, book victim’s expressed on and the collaborated, which Garr views by Garr in that book inter reflecting, alia, strong antipathy peti- long-standing toward feelings petitioner’s I family. tioner and therefore dissent.

I LEGAL STANDARD GOVERNING NEW

TRIAL PETITIONS my I begin review of the claim with a summary brief peti- standard legal governing tioner’s contention that entitled he is to a new newly the basis of evidence. discovered As this court State, stated in Asherman v. 429, 202 Conn. 521 A.2d prevail 578 (1987), petition trial, on a for anew “[t]he petitioner must demonstrate, by preponderance a evidence, the that: proffered the is (1) newly evidence such discovered, that it not have could been discovered earlier the exercise of diligence; due it would be (2) material a new trial; on is not (3) merely cumulative; it likely produce it is (4) a different in a result new trial.” Id., undisputed 434. Because it is that the evidence satisfies require- the first three Asherman ments, primary the raised by petitioner’s issue the appeal implicates only the requirement. fourth final v. State, Shabazz Conn. 811, 259 792 A.2d 797 we (2002), elaborated on fourth the of the Asher- prong man test, stating: “The always trial court must consider the newly discovered evidence the context presented in the original trial. In so it doing, must determine, first, passes that the evidence a mini- credibility mum is, if, threshold. That in the trial court’s newly opinion, the simply discovered evidence is not may that, pre- it determine even if credible, legitimately probably jury trial, a in a second it would sented to new petition may deny a result and yield different however, If, basis. ... the trial court deter- sufficiently is credible so mines that the evidence together a it with all jury if second were consider a probably yield it would evidence, trial original injustice, or an different result otherwise avoid the Asherman test would be satis- fourth element v. accord Adams omitted.) Id., 827-28; fied.” (Citation State, 838, 792 A.2d 809 (2002). 259 Conn. purpose we two test for the

Thus, apply part newly whether discovered evidence determining a new trial under the final Asherman factor. warrants petitioner must demonstrate that the evidence First, State, supra, Adams v. 259 Conn. incredible”; is “not truly incredible, if is 844; because, the evidence State, Smith it. v. jury See, e.g., second would not credit injustice 202, 208, (1954) (no 141 Conn. A.2d petition newly new when dis- denying trial done “utterly be reasonably found to covered evidence unworthy pre- . . . since it should be of credence will jury story”). that no believe an incredible sumed required newly if a new trial is discovered Because evidence, original when considered in context of evidence, rise a reasonable doubt concern- gives be so that evidence need not ing guilt, Rather, persuasive compelling. as to be convincing or credibility only must meet “minimum the evidence State, supra, 827; Shabazz threshold”; v. 259 Conn. State, supra, 838; accord Adams v. a standard that merely to evi- requires petitioner the establish the credibility wholly be lacking is not so in as to dence State, supra, of belief.5 See Adams v. unworthy 844. 5 opinion, explain greater part it in III G 1 of this would be As I detail impose stringent credibility improper a standard because such to more petitioner principle would afoul of the that the must demon standard run enough is, newly only evidence is strate that the discovered credible —that worthy sufficiently give rise a it is belief —to to reasonable doubt concern- Upon requirement, of that minimum the satisfaction step proceed court then must to the second the analytical process, “requirejs] which to [the court] newly determine whether the discovered evidence is a credible of such if sufficiently nature] [and a by jury admitted in new trial and reviewed a second together presented with all of the evidence at the origi produce nal is a trial, likely result”; it different State, also v. (emphasis added) id.; supra, see Shabazz 827; is, likely it is rise a give to reasonable doubt about the “or otherwise avoid an guilt, [to] ”6 injustice quotation . . . (Internal . marks omitted.) ing petitioner’s guilt. principle special when, the This has as in relevance present case, newly completely exonerating the the is discovered evidence because, circumstances, jury required in nature in such a second be would petitioner guilty find the on the such basis of evidence unless the beyond state is able to establish reasonable doubt that evidence the is Thus, present case, not credible. in the if the evidence is deemed to sufficiently give possibility be credible to rise ato reasonable that Has- Tinsley, petitioner, victim, brouck and rather than the murdered the then petitioner would be to a entitled new trial on the basis of that evidence. Thus, credibility comprises step the minimum threshold that the first of the step process newly two mandated if Shabazz is satisfied the discovered completely lacking credibility. evidence is not Shabazz, As this court made both clear in Adams and trial court always newly light original must consider the discovered of the State, supra, 838; State, supra, trial evidence. v. Adams 259 Conn. Shabazz v. words, original Conn. 827.In other trial evidence is relevant at both stages analysis. original of the trial court’s The evidence adduced at step analytical process, pursuant trial is relevant to first to which newly court must decide whether the discovered evidence satisfies credibility threshold, properly a minimum because the court cannot make vacuum; necessarily determination a factual the facts of the case newly will inform the court’s evaluation of the discovered evidence. Put differently, credibility the trial court cannot make an informed view of the newly something knowing discovered evidence without at least about against developed the state’s original case at the trial. Of course, original stage trial evidence is critical to the second analysis because, point, newly at that the issue is whether the discovered sufficiently evidence is likely credible of such a nature that it produce outcome, impossible different a determination that would be the trial court strength to make without consideration of nature and presented original Hereinafter, the evidence trial. all references in this opinion responsibility newly to the trial court’s to consider the discovered State, accord Shabazz v. State, supra, 838; v.

Adams 828. supra, a respect a trial court’s decision

We review under an abuse of discretion petition a new trial State, supra, 820. When Shabazz v. 259 Conn. standard. newly light the discovered evidence considering trial, petitioner’s original evidence adduced the the capable than the trial court is no less however, this court if; trial evidence original the assessing strength preside trial did not case, the court present Common- See, trial. petitioner’s original e.g., over 310, 325, N.E.2d 769 Lykus, wealth v. 451 Mass. of the credi- judge’s defer to a assessment (2008) (“We for new hearing on the motion a bility of witnesses at position good we in as However, ourselves regard trial. to assess judge who was not the trial judge as a motion Grace, record.”); Commonwealth v. 397 Mass. the trial (same). 307, (1986) 491 N.E.2d the trial court first contends newly discovered concluded that the improperly sufficiently trustworthy to be admissible evidence penal nevertheless interest but against as a declaration credibility justify trial court’s so as to lacking light that evidence in the failure to consider Second, petitioner claims evidence. trial original the trial court’s denial this court should reverse improperly court petition because his new trial separate claim that a new trial failed consider respect . .” injustice . . With required to “avoid an majority concludes contention, first petition hearing on the evidence adduced at that the rejection the trial court’s supports for a new trial trial, to a new even petitioner’s claim that is entitled Bryant evi- never considered the the trial court though pertain original trial to the court’s context of the evidence analytical process. during stage of the role the second

559 in the trial original dence context of the evidence.7 With respect petitioner’s the claim, majority the second the petitioner concludes that is incorrect asserting that, Shabazz, newly under discovered evidence war- irrespective trial, rants a new of whether the trial court produce finds such likely evidence will a different a result, if second trial is an necessary injustice. to avoid rejecting interprets this contention, majority the Sha- unitary as creating purposes bazz standard for the prong despite express fourth of the our Asherman test necessary statement Shabazz that a new trial is when newly yield “probably discovered evidence would a different result or injustice.” otherwise avoid an supra, State v. (Emphasis added.) Shabazz, 259 Conn. 828. respect petitioner’s claim,

With to the first I conclude newly Bryant that the discovered evidence meets the credibility minimum and, threshold a matter law therefore, improperly that the trial court failed to con- light sider that evidence in of the original trial evidence.8 I reach that conclusion because, particular under the case, very circumstances this same factors that led the trial court properly Bryant’s to conclude that statements are trustworthy admissible as declarations against penal necessarily interest to satisfy sufficed credibility minimum requirement contemplated under the first of the prong Shabazz formulation.9 I further 7Although majority expressly says so, never its affirmance of trial necessarily judgment court’s reflects its conclusion that trial court did rejecting petitioner’s not abuse reaching its discretion claim without step analysis, is, considering the second of the Shabazz without newly light original discovered evidence in evidence. explain fully hereinafter; part opinion; As I more G1 see III of this the trial impropriety misunderstanding court’s stems either from a of the Shabazz credibility minimum or applying threshold from an abuse discretion in standard, findings respect from court’s inconsistent factual degree to the which statements are corroborated. course, possible that, case, given Of it reasonably is in a a trial court that, although newly party against could find discovered third statement penal sufficiently trustworthy is trial, interest to be admissible at a second undisputed facts, the basis of the

conclude a new trial requires evidence newly discovered in the evidence, light when viewed because that trial, original adduced at the as to whether doubt rise to a reasonable likely give victim. murdered the it my regard in this makes determination Although petitioner’s me address the second unnecessary for to an required new is to avoid namely, a trial claim, majority I with the injustice, disagree I do so because an insufficient injustice constitutes avoiding an a in petition for new trial the for a ground granting I am any particular, in other case. present case or disjunctive, use of the presume that our unwilling to Adams, articulating when Shabazz in both the use of the word “other- test, coupled with applicable second the test prong wise” to underscore that the merely prong, first constituted is different from the v. State, See Adams surplusage. or language loose . . required . Conn. 838 trial supra, (new “[i]f is sufficiently determines that the evidence trial court to it jury if a second were consider that, so credible it evidence, proba- with all of the together original or otherwise avoid an bly yield would a different result quotation marks added; internal injustice” [emphasis State, supra, 259 Conn. 827 omitted]); Shabazz v. justified trial court is be in which the may cases (“there is newly discovered evidence determining that the in order that, of such a nature sufficiently credible and unworthy so of belief that it fails is otherwise the statement nevertheless by credibility court in threshold identified this even the minimum meet Shabazz, thereby obviating consider the statement need for court to original For forth in trial evidence. the reasons set in the context of the however, part opinion, there this is not such a case because HI G 1 of this reliability nothing or trustworthiness record that so undermines is failure to consider as warrant the trial court’s adduced at the in the context of the evidence that evidence original trial. an injustice, jury, avoid a second rather than the itself, trial court should make the ultimate assessment credibility” [emphasis Indeed, its added]). this precisely position Appellate our by Court, taken recently explained which Shabazz, this court “looked beyond four-pronged the traditional test newly guided discovered evidence and [was] general principle injustice whether an was done.” (Emphasis Joyce v. added.) Attorney, State’s 84 Conn. 203, App. 195, 841, denied, 852 A.2d cert. 271 Conn. 859 A.2d (2004).10

Furthermore, such a makes test eminent sense. good I can think of legitimate why no reason a court should petitioner grant discovery a new trial when the places validity new evidence original of the con- viction in such doubt, seriously or so undermines our accuracy verdict, confidence that it would unjust deny be new trial. See, e.g., Lykus, supra, Commonwealth v. 451 Mass. 326 (“A defendant a seeking newly new trial on the ground discovered evidence must show that the evidence is newly discovered, that it is material and credible, and that it casts real justice doubt on the of the conviction. Newly discovered evidence that is merely cumulative of evidence carry admitted at the will trial little weight. The task of the tois decide whether the [trial court] probably new evidence would have been a real factor 10 Joyce., Appellate application the Court also noted that of this some stringent by what less standard —both this court and other courts of this petitions involving state —has been limited to cases of new trial homicides similarly Joyce Attorney, and other serious criminal v. offenses. State’s supra, App. see, 203-204; e.g., State, supra, 84 Conn. v. Adams 259 Conn. (petition petitioner’s 832 new aiding for trial filed after conviction for abetting degree manslaughter); State, supra, first v. Shabazz 812 259 Conn. (petition for conviction). Although new trial filed after murder persuasive present I limitation, case, see no reason for that the which petitioner a involves murder conviction for which the received a sentence twenty years imprisonment, requirement. to life meets such jury’s deliberations, regard

in the [court] the defen- against of the case strength must consider the finality judgments in the interest dant.”). The state’s deny petitioner a new trial as to a great cannot be so a standard.11 See has satisfied such petitioner when the cases, inquiry that, will recognize of the trial court’s in most the result 11 I Nevertheless, two tests set forth in Shabazz. the same under either be reason, court, or is unable in which the for whatever in the unusual case likely newly unwilling would result to find that the discovered necessary acquittal trial to avoid an does conclude that a new is an but denying petitioner injustice, legitimate a new trial. I see no basis for test, contrast, rejects prong majority, by second of the Shabazz this characterizing “contrary law common sense” and to our case it opinion. “amorphous majority None of these . . .” 42 of the . Footnote supportable. dismissing grounds Shabazz standard for alternative fully Appellate rejecting First, agree far Court from I adopted Attorney, expressly Joyce standard, it. v. has State’s this court majority’s App. disagree supra, with the second Conn. 203-204. I also by granting petition assertion, namely, a is offended that common sense newly when that evidence a on basis of discovered evidence new trial justice seriously the trial court’s confidence in verdict so undermines precisely opposite conclusion, fact, requires a second trial. In I reach fundamentally compels is, be the conclusion that it would that common sense deprive To of new trial in such circumstances. unfair grave trial has resulted overlooks the risk the first conclude otherwise Finally, namely, wrongful injustice, conviction. the standard in a manifest fact, very principles majority amorphous, claims. In same is not as the routinely appellate applied the trial and courts test are that underlie the Showmotion, variety See, Bayer e.g., v. of contexts. of this state a wide policy legislative 381, 389-90, 973 (2009) (applying Inc., 292 A.2d 1229 Conn. writ, pleading proceeding defect or shall be abated for circumstantial that no Millan, 831, injustice); State v. 290 Conn. to do so would work when eourtpermitting uncharged (ruling (2009) introduction of A.2d699 appeal its unless court abused evidence will be disturbed misconduct omitted]); injustice quotation has marks “or an occurred” [internal discretion Correction, 502, 522, Conn. 964 A.2d 1186 290 v. Commissioner of counsel, (to prevail of must assistance defendant on claim of ineffective performance in undermined confidence deficient establish that counsel’s Bryant, 938, Murphy verdict), v. 558 130 S. Ct. nom. U.S. cert. denied sub 437, 463, Johnson, 259,175 (2009); 958 A.2d 242 v. 289 Conn. L. Ed. 2d State probative is (2008) (trial value of evidence court’s determination 713 “only appeal prejudicial outweighed its effect will be reversed appears injustice to is or an of discretion manifest [when] abuse [when] Brown, quotation omitted]); & Inc. marks Brown have been done” [internal 657, (doctrine Blumenthal, 646, (2008) of of A.2d 816 law v. 288 Conn. State, 576, 577, Gannon v. 75 Conn. 54 A. 199 (1903) finality (“[t]he preclude of a does not judgment court it entertaining pro- that rendered from further ceedings action, apparent in the same when it is made injustice [emphasis has been done” In the added]). present case, petitioner because the satisfies the first necessarily Shabazz criterion, has met this alterna- tive standard. principles

With I mind, briefly these in now summa- rize the trial majority opinion, court’s decision and the both of which reject I claims. then turn why a more lengthy discussion of I believe that the trial court majority and the are in wrong denying the petitioner newa trial. judge overruling judge’s ruling case does not trial bar second from first trial ruling clearly following ruling if erroneous and would in result manifest injustice); Wenkert, 118, 101, v. (2008) (trial Monti 287 Conn. 947 A.2d 261 may separable, court order new trial limited to certain issues if issues are doing injustice); Davis, unless so would in result serious State v. 286 Conn. n.6, (2008) (denial 26-27 942 A.2d 373 in severance criminal case will joinder

not warrant reversal can unless defendant establish that resulted injustice); Ortiz, 686, 717, 911 substantial v. (2006) State 280 Conn. A.2d (state’s failure to disclose evidence favorable to defendant will not result unless, alia, in new trial light inter that evidence casts case in such different verdict); as to undermine confidence Jackson v. Water Pollution Control Authority, 692, 702, (trial (2006) 278 Conn. 900 A.2d 498 court must set jury injustice manifest); aside verdict when of verdict is see also Practice (rules practice liberally § Book 1-8 injustice); shall be construed to avoid (rules appellate procedure liberally § Practice Book 60-1 shall be con injustice). disagree majority’s strued to avoid I therefore with the determina appropriate deny p despite tion that it is a etitioner newa the existence newly when, view, discovered the trial court’s that evidence significant legitimacy casts such doubt on the of a conviction that it would unjust deny opportunity produce be an that evidence reasons, at a engendered by second trial. For obvious the unfairness majority’s cases, present one, involving decision is most acute in like the crimes, murder, very inevitably convictions for serious such as result in prison lengthy sum, majority’s finality conclusion, places terms. In which fairness, represents jurisprudential step over backward, espe an unfortunate cially light growing fallibility awareness of the of our criminal justice system. part opinion. See VI of this

II THE TRIAL COURT’S DECISION SUMMARYOF MAJORITY OPINION AND THE petition in his raised several claims petitioner The claim he is entitled including the trial, for a new newly discovered a new trial on the basis Garr, certain revelations about evidence and hostility petitioner toward the apparent including Garr’s family.121 first summarize the trial petitioner’s the and treatment of the majority’s and the court’s evidence. trial, petition on the for a new the hearing

At the Bryant had was informed that invoked his trial court deposition that self-incrimination at a privilege against purpose for the petitioner had been noticed the petitioner a he is entitled to new trial on the also claimed that directly contradicting (1) the statements of several witnesses basis of the key Coleman, testimony Gregory drug a addict state witness who petitioner’s in drug the trial but who asserted died of a overdose before testimony petitioner’s probable hearing, was admitted cause which at the petitioner murdering petitioner’s trial, that had confessed to the at the the School, facility petitioner Elan a when and the were residents at victim 1970s, (2) Poland, Maine, the a late for troubled adolescents located person night composite drawing in BeEe Haven on the of a observed that, petitioner contends, strong resem bears victim murdered petitioner’s long-time Littleton, the former tutor and blance Kenneth immunity suspect murder, grant who testified for state under suspect profile reports prosecution, (3) poEce of Littleton and from brother, previously prime Skakel, had been the who Thomas suspect concerning case, information Littleton’s in the as weE certain conduct, before, actions, including charged uncharged at the criminal Although of, this murder. at least some of time and after victim’s extremely petitioner especiaEy Ekely would have been valuable to — composite testimony and, potentiaKy, contradicting Coleman at least major agree resembling generaKy drawing purportedly with the Littleton—I ity opinion, did set in its the trial court not abuse for the reasons forth claims, concluding, respect foregoing that the its discretion satisfy prongs or more of the of the test for had faded to one newly determining discov a new trial is warranted due whether ered evidence. Bryant’s of

exploring knowledge certain information previously provided, that he a video- during directly interview, implicating recorded Hasbrouck and Tinsley petitioner pre- the victim’s murder. The also interview, sented court that video-recorded claiming that, Bryant was as a wit- because unavailable ness, therein, statements contained although hear- say, would be admissible at a new trial because Bryant’s against penal were interest and bore sufficient of reliability.13 indicia The also claimed that Bryant’s were statements admissible under the residual exception hearsay to the rule. The trial court agreed with the first claim that the statements were admissible under hearsay exception trustworthy against penal declarations interest, and, therefore, court did not the petitioner’s address alternative ground admissibility. concluded, The court also how- ever, Bryant’s statements were not credible. That primarily conclusion was on predicate based the court’s finding Bryant’s statements were supported by no than more minimal corroboration, and on certain evi- dence adduced at hearing, testimony including Bryant establishing did not come forward with the information for twenty-five years more than and that one recall Bryant of ever seeing and his “[n]o ha[d] companions in Belle Haven on the night the murder.” Having Bryant’s concluded that not statements were credible, the trial not court did consider those state- ments context the evidence adduced at the petitioner’s original trial.

In its review the trial decision, majority court’s declines to decide whether properly trial court Bryant determined that the evidence would be admissi- ble a new trustworthy trial as party third statements penal against The majority explains interest. that there by Bryant, evidence also includes certain statements some tape part opinion. were which recorded. See III A of this view, its because, no do the trial court need to so concluding its discretion in did not abuse events, sufficiently although of the relevant account trustworthy be is not credible.14 admissible, light reasonably con- that the trial court of its determination simply is suffi- that the not cluded jury’s ciently bearing to have a believable majority also does case, the state’s assessment of strength in an of that case. evaluation engage relationship Garr’s petitioner The also claimed that a the case that Levitt, with the author of book about trial, and published petitioner’s the criminal was after publication about the content certain revelations newly discovered evidence book, of that constitute peti- support claim, of his warrants a new trial. In discovery part in on the fact tioner relied case, sought his criminal the disclosure stage of any “pecuniary state had a agent of evidence that development in and/or outcome or other interest any including, to, contract, but not limited case, of [the] which relate to the ongoing negotiations, or agreement, . any book . . .” it is undis- preparation Although petition- ruling regarding that the trial court’s puted applied in his criminal discovery request case er’s provided petitioner Garr, the state never Despite in to that undis- response request. information pact previously private undisclosed puted evidence that the two would “tell between Garr and Levitt [their] story” story that, was over —a when when case they ultimately told, passionately how believed reveals cover-up by aided in a other mem- petitioner, that the his was for the victim’s family, responsible bers of admissibility Bryant evidence, does consider the concurrence determining concluding discretion in that the that.the trial court abused its penal against under the declaration interest evidence would be admissible part exception hearsay in E rule. I discuss the concurrence to the opinion. this death, how pursued the case aggressively against the petitioner, intensely and how Garr disliked him and family present trial court case concluded —the newly that the was agreement neither discovered nor swayed jury “evidence that would have as to lead acquit.” Finally, rejected it to the trial also court required claim that new trial was because of the state’s failure to disclose Garr’s one-half financial interest the net revenues from Levitt’s book. The majority assumes without that the evidence deciding of Garr and relationship newly Levitt’s discovered but concludes that the trial did court not abuse its discretion in determining that the was not entitled to a new trial because the petitioner failed prove that the evidence an probably would result upon acquittal retrial.

Ill THE NEWLY DISCOVERED BRYANT EVIDENCE

A The Evidence facts, all of following which were adduced at the hearing petition on the for a new are trial, my relevant to newly conclusion Bryant that the discovered evidence15 sufficiently was credible such that, under the Shabazz, trial court required was to consider it in light of the original Shortly evidence. after the was convicted, Robert F. Kennedy, Jr., the first cousin, published an article, “A entitled of Miscarriage Justice,” in the January-February, 2003 edition of The Atlantic magazine, in which he maintained that peti- the tioner had been wrongly convicted. After the article appeared, Kennedy by was contacted Crawford Mills, 15 Bryant newly References to the evidence of include all discovered tending Tinsley may to indicate that Hasbrouck and have murdered the victim. a of Greenwich and classmate

a former resident of School, preparatory a Bryant’s private Brunswick town of Greenwich that boys school for located in the Mills, a Bryant had attended from 1972 until 1975.16 Kennedy that, two Bryant’s, trusted friend of informed who years Bryant, then was a businessman earlier, in him that he had been in Belle Florida, had confided murder and that two night Haven on the victim’s Manhattan, from Bryant’s high school classmates Tinsley, were namely, Hasbrouck and York, New Kennedy for the victim’s death.17 Mills told responsible Connecticut, family Bryant Bryant’s live in resided at Because did not faculty wife of a Brunswick School member Greenwich home Bryant couple attending with been the school. The whom resided had while friendly time. mother some explained Bryant Septem Mills had called him two weeks after Mills, on World Center see if who resided ber 2001 attacks Trade location, right. time, Mills a two from that was all At owned blocks corpo provided interpreting services to various business simultaneous Bryant completely September clients, up rate dried after 11. but business had living going and whether Mills how he intended to make a forward asked screenplays. Mills, friends, According all of his he still acted or wrote years” 1980s, Bryant, including had “for in the late Mills had known murder, screenplay and the victim’s and that written a about Greenwich completed early screenplay 1990s. told Mills that help screenplay might able with the “had some be him because couple experience industry” things had and had “written a [the] screenplay it to the air on Mills stated that he “dusted” the made television.” probably [Bryant] version, copy latest which was off and “sent [his] According Mills, . . . version . . . .” he wrote the about the [twentieth] screenplay grown “to make a statement about town which [he] up paint murder ... as sort of a vehicle to and used the [victim’s] identify picture Although . . . .” Mills did not of the characters their script “pointed people” through names, finger group real [at] everyone “composite knew the use of characters” whom to be “the Skakel brothers, petitioner], and and Littleton [Kenneth] [Thomas [the Skakel] script [Bryant] . the . . .” Mills further testified that he “had sent the with hopes happen.” it he and of edit . . . but that didn’t that would read it sort Bryant script, According Mills, although apparently read the he to offered Bryant finally screenplay spoke no assistance. When Mills and about the later, Bryant have few months told him “that none of the Skakels could killing” had there knew been involved in because he been and [the victim’s] that, Tinsley that Hasbrouck and killed the victim. Mills testified the time conversation, pending petitioner’s arrest and trial had received of their that, Bryant extremely a number was reasons, for to come forward but after the that, reluctant arrest, had to allow Mills to he consented communicate and to Tinsley information about Hasbrouck Bry- on the authorities condition that Mills not disclose ant’s name. Mills did contact the authorities, including prosecutor case, that, but Mills was told person unless the providing willing information was to forward, come the authorities could not act on the After allegations. Bry- was convicted and ant still refused to come Mills forward, decided he no longer protect Bryant’s identity would gave Kennedy. name to after

Shortly Kennedy his conversation with Mills, Bryant by telephone. contacted Kennedy recorded the telephone call and all subsequent calls that he made to Bryant and to other potential witnesses in the case. The telephone recordings calls were entered into evidence at the hearing petition on the for a new trial Bryant much media attention. Mills stated that understood that Millswould Tinsley authorities, take the information about Hasbrouck and to the but Bryant implored identify Mills not to him as the source of the information. According Mills, thing learning to the first he did after about Hasbrouck Tinsley father, was speaking to call his father advice. After to his cops prosecutor, Mills then “called the . . . and . . . the defense attor- neys.” spoke Bryant update Mills stated that he to several times him to how the various authorities had reacted to the information told him quite going it was clear that he was have come forward himself. Mills,Bryant According to “refused to come forward and tried [at time] important keep to make understand how it was to out [him] his name story. Bryant] this endeavoring right It seemed to [Mills to do ” thing only point but to the where his name out was left of it. Mills stated also Bryant Tinsley, any possibility once told him about Hasbrouck and working screenplay on the . . . “was over .” Mills further noted “very simple” script changes incorporate that he some made to the given information that him about the murder but that never changes Bryant. out, showed those As it turned Mills made no further screenplay. efforts to sell the 570 to telephone In his first call played for the court.18 Kennedy only Bryant told brief, which was

Bryant, them petitioner when the two of he known the he and the School but that were students at Brunswick Bryant agreed never had been friends. Bryant Kennedy day, the next when with speak again Kennedy, time. In his next conversation had more he had that one of the reasons that Bryant explained forward was that he reluctant to come been so family. his for repercussions about worried were family a of his few members Bryant, According community in the and would quite prominent Bryant to murder any publicity linking appreciate Bryant, is Bryant’s mother, Barbara particular, case. of educational Academy winning producer Award an president films and executive vice and a cofounder Group, Inc., and one of cousins Learning the Phoenix Bry- Bryant. player basketball Kobe professional be that he could accused expressed concern ant also and that his been involved in the murder of having he adversely affected if were might be business in the case. become embroiled Kennedy that, after he left then related to briefly prior grade,19 to the ninth Brunswick School Hughes High Evans School (Hughes attended Charles Manhattan, public high school High School),20 preparatory school in private to a transferring before while Tinsley Texas. met Hasbrouck Bryant, According School. Hughes High attending Tinsley spurred “[t]hey were “wild” and Hasbrouck and 18 telephone Kennedy participated approximately ten recorded conver petition hearing on into evidence at the sations that were introduced directly only that bear a new I refer to those conversations trial. petitioner’s claims. 19Bryant years Has old when the victim was murdered. was fourteen Tinsley grade. year also in ninth were one older but brouck and Bayard High Hughes H.S. School was later renamed Charles Evans High Humanities. Rustin School for the They Bryant other off big each on. fed each other time.” explained that, he then with although resided his mother in all of his friends were still in Manhattan, Greenwich, and he often took a train to there visit Bryant explained them. also on occasions, several Tinsley Hasbrouck and went with him. According to Bryant, Greenwich from was different world New City, and, York and it was Tinsley, Hasbrouck “for- Bryant . . bidden fruit . .” stated: “[I]magine coming from the inner . city into Greenwich in . . mid [1970s]; the difference between Beirut [it was] [Leba- Cape and Cod [Massachusetts], . . . It’s the dif- non] ference between have . and have-nots . .” . [the]

On the evening Tinsley of the murder, Bryant, and Hasbrouck went to participate Belle Haven to in “hell night,” also known night,” as “mischief night before Halloween when neighborhood traditionally children pranks would engage and other mischief. According Bryant, to Hasbrouck had met victim a previous on visit to Greenwich he and “had this her” thing for and just say “would just things really, were looking back, you just would be, my God, oh why say didn’t I something, and it it just, Bryant bothers me.” told Ken- nedy that, they after arrived Belle from Haven station, train he, Tinsley Hasbrouck and spent the eve- ning pulling pranks, drinking, smoking cigarettes marijuana boy with another from the neighborhood, Geoffrey Byrne.21 According Bryant, left Belle Haven at p.m. around 9:15 to catch a train back to Manhattan, while Tinsley Hasbrouck and decided to stay the night Byrne. Bryant Before left, Hasbrouck told him that he going “[g]et caveman tonight” a girl. 21Byrne, only years time, subsequently who was eleven old at died apparent an involving drug suicide overdose when he was seventeen. opinion Byrne All Geoffrey Byrne. references in this are to Tinsley Hasbrouck and

When next saw some Monday, Hasbrouck “said following school the in Bry- . . that left no doubt very damaging” things . Tinsley had killed the mind that Hasbrouck and ant’s several Bryant, over the next According victim. Tinsley showed no remorse for months, Hasbrouck and joked bragged and, fact, what done immediately Kennedy also that he about it. told happened, what had and she told told mother about himself from Hasbrouck and him that he must distance they could be Tinsley, explaining dangerous family. Bryant further only Bryant’s to him but to entire Byrne of had to him that, on the basis what said stated Byrne murder, reasonably he was certain that after the subsequent In a present when the murder occurred. was Bryant if conversation, Kennedy why, asked Hasbrouck Bryant so had associated with him. dangerous, was he point only at in his life—he was responded that, that precisely aspect was that of Hasbrouck’s fourteen —it persona had attracted him.

Bryant subsequently agreed to an interview with Vito investigator that the had Colucci, private a In which was video recorded interview, retained. Bryant Miami, Florida, at a hotel near home Kennedy much of what he had told repeated copy considerably but in more detail. A telephone was admitted into evidence and recording the video played petition on the for a new trial. hearing at you interview, Bryant that, “[ajnything dared stated Bryant further stated do, to he would do.” [Hasbrouck] was easy “[tjhere something it was to tell that to was look him to you with him. All had do wrong it. . . . lot kids were afraid of him because know [A] explosive.”22 According Bryant, was . . . big participated sports, Bryant whether Hasbrouck When was asked Bryant wrestling. Bryant responded that Hasbrouck was involved in further explained Hughes High wrestling “wanted to that the coach at School had develop guys wrestling one .... And team [Hasbrouck] being enough, having really pegged aggressive that [the coach] Tinsley was the was the “gasoline” Hasbrouck . . Tinsley . .” would incite “engine Hasbrouck do cars, like throw bricks at things, passing burglarize, Tinsley “put up always him to.” “It was anything . . [T]hey always dare between . trying were [them]. just push outdo each other. And would each . . .” Bryant, other . According both Hasbrouck and Tinsley feet, were six both about two inches tall and “easfily]” weighed pounds.

Bryant told Colucci that Hasbrouck first met the vic- tim at a Greenwich in September, 1975, street festival and became infatuated with her. He saw her at a also couple dances, or one both which were hosted by a parochial local church or school. explained “very Hasbrouck was immature” and lacked the approach confidence to the victim but that he would talk constantly very about her sexually explicit manner. . . time he met her . until the “[F]rom murder, that’s what he would talk about.” claims that he told Hasbrouck, “[y]ou need to think about something else. You need to somebody think about else that is more obtainable, because it is not to going happen Bryant, According to Hasbrouck’s [with her].” up obsession with the him, victim “built with[in] [i]t up built tremendous[ly].”

On Thursday, 30, 1975, October night of the mur- der, Bryant, Tinsley Hasbrouck and traveled from Man- hattan to Greenwich to participate in hell As night. Bryant explained, on night, hell older children in the demeanor, having good Although, and the killer instinct to be a wrestler.” time, Bryant big very athlete, good at was and himself a considered to be explained pin problem.” According that Hasbrouck “could no [him with] Bryant, Hughes High “tough to School was a school .... was a [T]his city talking school in New York. We are not about Greenwich .... There’s Boy were, they no Scouts at this school. ifAnd there I didn’t know where Nevertheless, according Bryant, “developed met.” to Hasbrouck . . . reputation a not to be someone mess to with.” spray property, shaving would vandalize

neighborhood Bry- other pumpkins, among things. and smash cream Tinsley arrived train around ant, Hasbrouck and Walker, house, Neal Walker’s but p.m. 5:30 and went to come out Bryant’s, could not a former schoolmate the street to see They then went across with them. Tinsley previously and with whom Hasbrouck Byrne, Bryant, he, to Tin- acquainted. According had become neighbor’s refrig- stole beer from a sley and Hasbrouck Byrne with neighborhood walked around erator and paper. cream and toilet pranks” with “playing shaving up group a p.m., they met with approximately At 8:30 house of the kids in the meadow behind the mari- family,23 Skakels, group where the smoked more beer. juana and drank some cigarettes and part was of the a short group recalled that the victim and time, Bryant, this Hasbrouck period of time. Around up lying clubs that were around Tinsley picked golf fooling and started around with property the Skakels’ Tinsley stated, going get “I’m them.24Hasbrouck are built around houses in the Belle Haven section Greenwich Several undeveloped consisting grass. central, space, It this of trees and area a up least six houses back to the refers to as the meadow. At Bryant explained meadow, Byrne’s including home and the Skakels’ home. place a “collection to sit and [for kids] Colucci that the meadow was marijuana cigarettes, “the some drink beer” because smoke smoke Bryant, anyone According parents there. “it see” who back couldn’t close, you enough space big could ... if someone did come bit was a so run, you night . no could catch . . .’’On the scatter and one Bryant arrived, but, murder, just people when after were a few there there teenagers. while, group grew size to between ten and fifteen Kennedy “surprised Bryant previously he was had told [that] Everybody prints [golf] get off clubs. touched those clubs.” didn’t those [his] always Bryant, golf lying According the Skakels’ there were clubs around yard Colucci, Bryant porch. elaborated that the or In his interview Bryant porch. generally further were on the Skakels’ back clubs found explained “[ejverybody touched those clubs. We used that Belle Haven hit at On the And we also used to balls cars.” to hit balls behind the house. picked Bryant “picked up [Tinsley] murder, night that one. claims he up Byrne picked up picked up . And we one. . . one. one. [Hasbrouck] Tinsley] using goofing . . . and were [their . . . around. were [Hasbrouck walking . . . sticks.” clubs] had throughout me a Hasbrouck indicated girl.” he on a and night “go girl that wanted caveman” joked, my “I’ve caveman . . . .” got According club Bryant, concept going caveman derived from a and a woman cartoon, signified grabbing hair, sexually her off dragging presumably assaulting and that, her. at Bryant approximately p.m., claims 9:15 Tinsley told Hasbrouck and that he needed to home. go Biyant things stated that he left because he sensed that out getting go were of control but that he also had to home because of his curfew. Hasbrouck said something to the effect “I’mnot of here going out unsatisfied.” Bryant he, that, by departed, stated the time he Has- Tinsley brouck and significant had consumed a amount . . things pitch. alcohol that were “at fever . ready [T]hey up.” were sort of According blow Bryant, the next time that he saw Tin- Hasbrouck and sley school, at following Monday, they him, told did it. We achieved the caveman.” “[w]e Biyant Colucci asked how he knew that Hasbrouck Tinsley stayed had night Byrne. Bryant responded they had told him stayed there Byrne and that had told him the same thing. telephone Kennedy, Bryant conversation with explained Byrne’s house “the perfect place” offered Tinsley up Hasbrouck and to clean after the murder hardly because anybody home. There “[t]here a billion in that and, most, rooms house there [were] were people three there at given time, [Byrne], his brother housekeeper. parents were never [the] [His] there.” also told Colucci that he first found out about murder mother, from his who showed him an in the article New York Times about it one two or days after the murder, and asked him whether he knew victim. told Colucci he did not come forward sooner because he was afraid that he would “pinned be suspect” ... as a and because he never Bryant would be convicted.

imagined that on petitioner] convict observed, they [the “[i]f [could] an evidence, I I would think circumstantial been] [have Bryant explained that, . . .” con- easier conviction . to petitioner, to he “didn’t have the resources trast Bryant also stated that defend “[o]ne [Mm]self.” away. ... that made passed . . . has So parties [him] worse, knew . . to the hills even because . run [he] much if not more than [Byrne] knew as [he did].”25 provided consistently the same asked, Bryant When he not sooner. explanation why as to did come forward from Walker, Bryant’s childhood friend example, For at the on the new School, hearing Brunswick testified petition he learned about allegations Tinsley and from Mills sometime against Hasbrouck try to Biyant had Walker to call to 2002. Mills asked At that Walker time, Mm to come forward. convince he Bryant why and him never did contact asked Tinsley. According and Hasbrouck anything said about told Bryant responded that “Ms mother had Walker, to implicated [by] putting him to because he would be him crime.” Walker asked himself at the scene now. up if was he was it why, concern, bringing Tinsley, seeking and Ken to information about Hasbrouck addition murder, nedy askedBryant Byrne. Bryant responded that, after also about point person Byrne he “a “freaked out” to the became different Bryant Byrne . . .” took the train into Manhattan to talk to . sometimes expressed dismay happened. Bryant anger over what had stated and Tinsley. Byrne up getting blamed him for him mixed with Hasbrouck and Tinsley Bryant, Byrne According went told him that Hasbrouck and once They though one was at home. to his house and let themselves even no Byrne Byrne’s in, thought sitting when he walked were bedroom Kennedy: “jump” going “I him. said to a moment that were years you Byrne] guy couple younger telling than me is a who is a am [that just city talk, parents coming idea. and his had no to the [and was] keep very parents good, him had an brother His didn’t track of and he older pretty . dad . . . . . after him mom and [because his] who much looked huge always type trip something. going He in a or lived were some way brother, just just] a maid and this house himself [with always looking was. there for affection.” it He was out Walker, he had According answered that petitioner never been friends with but he felt an injustice petitioner] that it “was seeing being [the petitioner] tried for murder that knew [Bryant] [the [a] Bryant didn’t commit.” Walker further testified that give investigators asked him the information to but to try . . Mills, “not to reveal his name . .” Like Walker contacted the authorities was during trial but told that, Bryant willing forward, unless himself was to come similarly information useless. Mills testified why asked Bryant when he he had come for- ward sooner, replied that he had his told mother at the what had happened time and that she told him “keep his mouth subsequently shut.” invoked privilege against self-incrimination when subpoenaed testify deposition by peti- at a noticed tioner.

Finally, when first by contacted and interviewed Col- ucci, both Tinsley Hasbrouck and told Colucci and his associate, Steele, Kris had been in Belle Haven on the date victim’s murder. both men Although subsequently representation retracted that in follow-up conversations with they each Colucci, invoked their privilege against self-incrimination and refused to answer any questions posed by at deposi- tions conducted connection with the case.

B Hearsay Exception for Statements

Against Penal Interest hearsay “The premised rule ... theory is on the that out-of-court are subject particular statements hazards. The declarant be he might lying; might have misperceived the events relates; he might have [that] faulty memory; his might words be misunderstood or taken out of context ways the listener. And the minimized for in-court state-

which these are dangers of the oath, gravity the witness’ awareness ments —the ability jury’s to observe proceedings, importantly, right most demeanor, and, witness’ absent generally to cross-examine —are opponent said out court. things rec the . . . also “Nonetheless, [r]ules [e]vidence are statements some kinds of out-of-court ognize that hearsay dangers, and therefore subject less to these hearsay inad rule that except them from the general are covers statements that category One such missible. .... William [penal] interest the declarant’s against States, 114 S. Ct. son v. United 594, 598-99, 512 U.S. quotation 2431, (1994).” (Internal L. Ed. 2d 476 129 146, Schiappa, State v. 132, 248 Conn. omitted.) marks 152, 528 120 S. Ct. 466, denied, 862, cert. U.S. 728 A.2d 2d (1999). 145 L. Ed. 129 rule the admission of trustwor- present allowing

“Our its penal interest has thy party against third statements Mississippi, 93 in Chambers 284, v. 410 U.S. genesis quotation 1038, (1973)”; (internal Ct. 35 L. Ed. 2d 297 S. Lopez, 56, 681 State v. 239 Conn. marks omitted) an accused’s constitu- A.2d 950 which held that (1996); of prevented to a fair trial the exclusion right tional v. Mississippi, See Chambers supra, such statements. in Supreme Court stated 302-303. As the United States than Chambers, are more fundamental rights “[f]ew in his own present an witnesses that of accused right, accused, of this ... In the exercise defense. comply must with estab- required [s]tate, as is of procedure designed and evidence lished rules of reliability in the ascertain- both fairness [en]sure rule perhaps no Although ment of and innocence. guilt respected or frequently more more of evidence has been applicable to the exclu- applied jury trials than intro- exceptions tailored allow the hearsay, sion of likely in fact to be of evidence which duction Id., trustworthy long (Citations omitted.) have existed.” 302. Thus, against penal when a statement interest bears significant assurances trustworthiness and is crucial theory process to the defense, defendant’s due clause id., 285, bars exclusion of the statement. See Chambers 302-303. In words, other as the court explained, circumstances, consti- “[i]n [such] [in which] directly rights tutional the ascertainment of affecting implicated, hearsay may are guilt applied rule not be mechanistically justice.” Id., to defeat the ends of 302. Chambers, however,

Before state, this “such third party per hearsay. statements were se inadmissible as v. DeFreitas, State ... 431, 449, Conn. 426 A.2d [179 Chambers as forbidding (1980)], interpreted we . application hearsay . . rule exclude all third party penal against exculpatory statements interest an accused. We . concluded . . [nevertheless] Chambers did every not mandate the admission such statement but required only the admission of those examination, statements were after careful determined the sound discretion of the trial court to be trustworthy. DeFreitas, State v. supra, 451-52.” (Citations emphasis omitted; added; internal quotation Lopez, State marks v. omitted.) supra, Conn. 71. As in DeFreitas, explained we recognized “courts have that the unrestricted admission of declarations against penal interest would be to invite perjury of a kind that is most difficult to ascertain. To circumscribe fabrication and reliability ensure the of against declarations [to] penal interest, there must exist . circumstances . . clearly support tend to the facts asserted the [that] v. DeFreitas, State declarations.” supra, 452 n.9. Thus, under our case law and 8-6 the (4) § of Connecticut represents Code of Evidence,26 which a codification of 26 provides Section of 8-6 the Connecticut of Code Evidence in relevant part: following by hearsay “The are not excluded the rule if the declarant is as a unavailable witness: “(4) against penal trustworthy against Statement A interest. statement

penal making, subject interest at the of time its so far tended to the by interest an penal law, against a statement

that case if only the statement is admissible unavailable declarant its so far and, making, “at the time of trustworthy is liability to criminal subject the declarant tended to position would declarant’s person the a reasonable person believed unless the made the statement have also, 8-6 see (4); Conn. Code Evid. § it to be true.”27 315, A.2d 542 254 Conn. Lopez, v. e.g., State hearsay rule, the exception to “In this allowing (2000). particular that under the primarily concerned we are is, trustworthy, circumstances, the statement reasonably equivalent to the oath safeguards added; (Emphasis exist.” the test of cross-examination v. Lopez, supra, omitted.) marks State quotation internal primary consider three The court must 254 Conn. 316. the statement is suffi- determining whether factors person liability in the declarant’s that a reasonable declarant to criminal person position it the unless the believed would not have made statement against penal determining a statement trustworthiness of to be true. (A) made interest, the statement was shall consider the time the court made, (B) person was whom statement the existence case, corroborating (C) to which the statement extent penal against ...” the declarant’s interest. Although of Evidence has been amended § Code 8-6 of Connecticut inception (4) recently, since the has not been amended subdivision Hereinafter, Evid. references and citations Conn. Code code in 2000. all (4) § 8-6 are to the current edition. admissibility penal governing against declarations inter Our rule (b) (3) generally Rules of rule 804 Federal est is modeled after provides (b) of Federal Rules of Evidence in relevant Evidence. Rule 804 by hearsay “Hearsay exceptions. following part: are not excluded —The if as a witness: rule the declarant is unavailable “(3) against which was at the time interest. —A statement Statement interest, contrary pecuniary proprietary making declarant’s or its so far to the liability, subject criminal or to the declarant to civil or or so far tended to against another, reasonable invalid claim the declarant render position person made statement unless would not have in the declarant’s expose tending believing the declarant it to be true. A statement liability exculpate the accused is not admissible and offered to criminal clearly corroborating indicate trustworthiness unless circumstances . . .” the statement.

581 ciently trustworthy (1) to render it admissible: the time person persons was the statement made and the or whom the was made; (2) statement the existence corroborating case; the extent (3) to which penal the statement against interest of the declarant. Conn. Code Evid. 8-6 see (4); § also Lopez, State v. 254 supra, Conn. 316.

“We previously however, have emphasized, that no single . . factor the test . for determining the trust- party worthiness third penal declarations against necessarily interest Thus, conclusive .... it is not necessary that the trial court find all of the factors support the trustworthiness of the statement. The trial court consider all of should the factors and determine totality supports whether the of the circumstances trustworthiness of the (Citations omitted; statement.”28 quotation internal marks State v. Lopez, supra, omitted.) 254 Conn. 316. respect

With to the timeliness element of the first prong the trustworthiness test, afford the trial “[w]e court broad discretion deciding whether the timeli- ness of a statement indicates it is trustworthy. general, declarations made soon after the crime suggest reliability more than those after a lapse made of time [during declarant has ample opportu- a more which] nity for reflection and contrivance. ... A statement’s 28 course, determining Of whether the threshold level of “[i]n trustworthi absolutely ness satisfied . . . the [is] trial court does not have find it to be trustworthy so, province jury because if this were as the finder credibility weigher entirely (Citation of fact and would be invaded.” omitted; quotation omitted.) Bryant, 676, internal marks State v. 202 Conn. 693, Indeed, (1987). 523 imposing A.2d 451 a stricter standard would be “utterly (Internal quotation omitted.) Gold, unrealistic.” marks v. State 180 619, 632, 501, denied, 920, Conn. A.2d cert. 449 U.S. S. 101 Ct. Furthermore, (1980). 2d viewing L. Ed. through this issue “[w]hen an evidentiary lens, properly we examine whether the trial court exercised its (Internal quotation omitted.) Smith, discretion.” marks State v. 289 Conn. 598, 631, (2008). 960 A.2d 993

582 necessarily dispositive not however, timeliness, omitted; (Citation determination.” the trustworthiness Thus, Id., 317. this omitted.) marks quotation internal party state the admission third upheld has court timing penal though interest even against ments abundant afforded the declarant of those statements Rivera, See, e.g., State v. opportunity contrivance. 191 370-71, (2004) (statement A.2d 268 351, Conn. 844 five months” of penal made “within against interest trustworthy sufficiently deemed commission of crime 634, Gold, State v. 619, 180 Conn. 431 admissible); to be within three months of crime made A.2d 501 (statement 449 denied, cert. U.S. sufficiently trustworthy), deemed We Ed. 2d 148 also 320, (1980). 101 Ct. 66 L. 920, S. penal against of a upheld the exclusion statement have when statement was made untrustworthy interest as declarant had little or the crime that the so soon after State v. See, e.g., or fabrication. no time for reflection one Conn. 317-21 made Lopez, supra, (statement 254 days was nevertheless untrust after crime and one-half sufficiently worthy corroborated); it was not because Hernandez, 377, 392-93, 528 A.2d State v. 204 Conn. day after made one crime 794 (1987) (statement alia, inter it was untrustworthy because, nevertheless cir sufficiently Indeed, certain corroborated). penal interest have cumstances, against statements because a particularly signif reliable been deemed be elapsed from date amount time had icant Stevens v. See, e.g., date of the declaration. crime 2001) against 316 People, 305, (Colo. (statement 29 P.3d years passed reliable when two penal interest more investigation of declarant events at issue and since 975, 122 denied, cert. 535 U.S. inactive), to be appeared may 390 It therefore (2002). 152 L. Ed. 2d 1448, S. Ct. time makes statement passage be said that “the and less reliable in another.” reliable one case more Mizenko, (War- P.3d 458 State 299, 375, 127 v. 330 Mont. U.S. S. ner, J., denied, cert. concurring), 43, 166 L. 19 (2006). Ct. Ed. 2d part prong for the second of the first of the trust As test, require testifying worthiness “we that the witness must be in whom the statement one declar [about] naturally quotation would marks (Internal ant confide.” State v. Lopez, supra, 254 Thus, Conn. 317-18. omitted.) relationship the declarant and the person between in whom the confided must be declarant close Rivera, confidential. State v. 58, 70, 221 Conn. 602 A.2d party 571 on the to whom (1992). focus the state “[T]he requirement ment made is consistent with the the declarant be disserving quality aware States, statement.” Laumer v. United 409 A.2d 201 190, 1979). n.15 (D.C. respect factor,

With to the second trustworthiness namely, the of corroborating circumstances, existence this has repeatedly emphasized court corrob- “[t]he requirement oration for the of a party admission third goes against penal statement significant interest is beyond minimal corroboration.” (Emphasis in original; quotation internal State Lopez, marks v. omitted.) supra, Rivera, accord State v. 319; 254 Conn. supra, 221 Conn. 71. “Therefore, the by statement must be accompanied clearly indicate corroborating circumstances statement’s trustworthiness.” (Emphasis in original.) v. Lopez, supra, State 254 Conn. 319. determining a whether statement is “all corroborated, evidence bear- ing on trustworthiness of the underlying statement may be considered. ... No one criterion determi- [is] native, but the court consider a wide [trial] [should] variety facts and circumstances ulti- making the mate of admissibility.” determination (Citations omit- v. Paredes, State ted.) 554, 775 N.W.2d 567 (Iowa 2009). Finally, the against statement also must be the declar- penal ant’s interest. In whether determining a statement rejected a “nar- requirement, this court has satisfies this a against definition of statement row and inflexible includes favor a definition penal interest [that] . . . but other remarks only confessions [that] he or the declarant were would tend to incriminate with the crime.” charged (Internal she the individual Bryant, State v. Conn. omitted.) marks quotation Thus, inter- 676, against A.2d 451 (1987). “[t]he con- is not limited to defendant’s direct exception est applies ... It well statements guilt. fession of liability. subject to criminal speaker that tend to encompasses disserving [Consequently, . . . rule the] pro- would have declarant statements [made] . in a . . against value declarant. bative [Our . . that strengthen reaches . remarks rule therefore] an that the declarant had insider’s impression the what against ... As to is of the crimes. knowledge interest, quite obviously the essential characteris- penal . . . punishment of for a crime. exposure is to risk tic fact that the declaration is Moreover, against it is not the by that the declarant interest but the awareness of fact omit- (Citations the statement gives significance.” [that] quotation Id., 695-96. ted; omitted.) internal marks

C Bryant Evidence as Admissibility of the Penal Against Statements Interest carefully the evidence, After reviewing evidence was admissible trial court concluded trustworthy penal interest. against declarations penal may be against a statement interest Although even when not all of the trustworthiness admissible trial present case, been in the satisfied, factors have every one of those each expressly court found the trial Specifically, had been satisfied. considerations case, “In of present full consideration court stated: totality supports circumstances admissi- . . . . . . state- bility Bryant’s Bryant’s statements. support ments were made under circumstances [that] admission, evidence, are corroborated sufficient clearly penal are against interest.”29 analytical Before reviewing underpinnings newly ruling, court’s it first must be noted that the relevant, highly and, discovered evidence is therefore, the evidence would be admissible at a second trial if the is able to establish that fall an exception against statements within to the rule hearsay. admissibility standards governing party culpability third evidence well are established. defendant has a right introduce evidence that “[A] indicates someone other than the com- defendant mitted the crime with which has been charged. [he] . . must, however, present . The defendant directly party connects third to the crime. . . . It is not to show that enough [person] another had the motive to commit the crime . . . nor is it enough to suspicion raise a person may bare that some other have committed the crime of which defendant . . . accused. admissibility culpabil-

“The third party evidence of ity is rules governed relating the to . . . relevancy. Relevant any tendency evidence is evidence having make the existence of fact that material to the probable determination of the proceeding more or less probable than it would be without the . . . evidence. Accordingly, in explaining requirement the that the proffered evidence establish a direct connection to a party, merely third suspicion rather than raise a bare regarding a third party, we have stated . . . [that] evidence is relevant, exculpatory evidence, [s]uch dispute no privilege against There is invocation Ms self- purposes renders incrimination Mm unavailable as a witness for of the against penal exception hearsay statement interest to the rule. third cul- merely party tenuous evidence of

rather than attempt an by a pability defendant] [introduced ... In other guilt. himself the evidence divert from a establishes direct connection words, evidence that rele- offense is party charged third between a namely, jury, question central before vant to whether reasonable doubt exists as whether a that would Evidence committed defendant offense. party, rather only suspicion a bare third raise offense defendant, charged committed the than the A trial jury’s determination. would not be relevant decision, party culpability that third therefore, court’s . . . by the is admissible proffered evidence defendant proffered that the necessarily entails a determination jury’s relevant to the determination evidence is to the reasonable doubt exists as whether a defendant’s emphasis internal omitted; added; guilt.” (Citations Arroyo, v. 284 Conn. omitted.) marks State quotation 609-10, 935 A.2d Because (2007). Tinsley par- as the implicates Hasbrouck and evidence thereby exoner- murder, victim’s responsible ties for the it is petitioner, inarguable ating the relevant at a second trial. highly would be evidence directly the central issue Indeed, evidence bears beyond has a reason- whether the state established per- some other petitioner, that the able doubt Consequently, the persons, the victim. son or murdered solely on whether admissibility depends of the evidence against penal trustworthy statements it consists interest. the standard of prehminary matter, note,

I also this court’s consideration governs review that Bryant trial court’s determination against of the declaration satisfy requirements does hearsay “To the exception to the rule. penal interest admission of evidence is trial court’s extent the] [that of Evidence, of the Code interpretation an based on

587 our plenary. example, standard of review is For whether a properly may statement be classified as challenged hearsay hearsay a exception properly whether is questions plenary identified are legal demanding They require review. which determinations about rea sonable not may differ; ‘judgment minds there is no call’ by court, the trial and the trial no discretion to court has hearsay admit provision the absence of a providing Saucier, State v. its 283 admissibility.” 207, Conn. 218, 926 A.2d When court’s the trial (2007). ruling, however, premised is on a correct of the law, view is, when, present case, properly the trial court particular has a determined “that statement is or is not hearsay, subject hearsay or is to a exception”; id., 219; this court “the affords utmost deference to the trial court’s admissibility].”30 pre determination Id. In the [of case, therefore, every sent we must “make reasonable presumption in of upholding favor the trial court’s ruling . . . and . . upset [only] . it for manifest abuse of State discretion.” quotation (Internal omitted.) marks v. Bonner, 468, 496, 290 Conn. A.2d 73 (2009). question Accordingly, “the is whether [the been reviewing court], as the trial sitting judge, [it] would differently. have exercised discretion Our [its] role as an appellate court is not to substitute our judg ment for that of a trial court that has chosen one of suggests ruling The state nevertheless that the trial court’s is not entitled Saucier, supra, deference, asserting that, to such under State v. 283 Conn. challenged exception statement . . . “[w]hether admissible as an [is] hearsay question legal demanding plenary rule is a review.” The state Saucier, holding explained in Saucier. As we misconstrues this court’s propriety application proper evidentiary of the trial court’s rule subject id., is to an abuse of discretion standard See of review. 218-19. In words, hearsay legal question other whether a statement constitutes is a subject plenary appellate Id., that is review. Whether a 218. statement requirements hearsay exception, however, satisfies the relevant of a is a id., determination that is reviewed for an abuse of discretion. See 218-19. present squarely Because the issue raised case into falls the latter category, manifestly the trial court’s determination must unless it stand unreasonable.

588 quotation many (Internal alternatives.” reasonable 842, 661 Day, State 813, v. 233 Conn. omitted.) marks to overturn a Thus, party seeking (1995). A.2d 539 evidentiary “heavy burden”; has discretionary ruling Ross, 226, A.2d 1318 State 183, (1994), v. 230 Conn. 646 1133, 130 S. L. Ed. 2d denied, 1165, 115 513 U.S. Ct. cert. rationally the trial court of (1995); establishing 1095 Orr, State v. 291 as it did. E.g., could not have decided 642, 667, (“[i]n determining 969 A.2d 750 (2009) Conn. discretion, has been an abuse whether there reasonably is whether the court could ultimate issue Reynolds, State 1, v. 264 Conn. as it did”); conclude 2d 224 court will not n.192, (reviewing 224-25 836 A. “rationally if trial court could find abuse discretion 908, 124 did”), denied, as it cert. U.S. have decided 2d (2004). Ct. 158 L. Ed. S. respect findings

I to the trial court’s now turn part evaluating the three test for the trustworthiness to penal As for the timing a statement interest. against Bryant’s statements, court that “there recognized actually sets of disclosures relevant this two [were] Tinsley factor; first, the disclosure from Hasbrouck Kennedy Bryant and, second, [Mills, from . . . Hasbrouck and statements Colucci]. [T]he immediately Tinsley following were made the commis- well within the traditional crime, which fits sion of trustworthiness.” The view of a time frame indicative observed, however, that, “[b]eyond the also trial court Tinsley of Hasbrouck and initial disclosure present typical.” case is far from . . . the timeline of the the information Bryant’s failure to disclose is, That Tinsley’s involve- him about Hasbrouck’s and known to twenty-five than victim’s murder for more ment in the ordinarily, would render his infor- and, years unusual suspect.31 explained, mation The trial court how highly why delay ever, wholly was understandable present atypical circumstances of the case. The court span longer stated: “The context time twenty-five year delay tied present case is into the reopening the murder. investigation [the victim’s] unique twenty-five rather then a circumstance, This year opportunity contrivance, for reflection and is the typical central factor that it from cases distinguishes prosecution of the investigation and defen which] [in approach the present dant not even of time length [do] . . . here.

“Because of the of the state’s length investigation, keep had out [Bryant] an incentive to himself of a case reasonably that would never solved. . . . thought be Bryant that petitioner indicates even after the was trial, and brought arrested he still refused to come way forward he thought because there was no that [the petitioner] be would convicted. . . . [Moreover] [a]t time 1975, of the murder in [Bryant] was fourteen year old suddenly black male who was faced with infor- by mation that, admission, clearly his own against penal . his interest . . .” The court further observed Bryant that had not immediately come forward after because, the murder as he had told Colucci, he “was afraid being automatically pinned suspect.” . . . aas (Internal quotation marks omitted.) court also underscored fact Bryant that had told Colucci that it would have been “easier” for the state to have convicted Bryant than and, further, Bryant’s that family had far fewer petitioner’s resources than the family provide for Bryant’s defense if had become a suspect. The trial court concluded, on the aptly noted, however, “Bryant’s As the disclosure, trial court late prompted petitioner’s case, delayed criminal is similar to the disclo many sure that occurred with of the witnesses the state relied [that] [on] at the criminal trial.” and in considerations, light the foregoing

basis of has law knowl- Bryant, degree, who the fact prosecut- no of limitations on there is statute edge “his Connecticut, the crime of murder ing story his reasonable.” reluctance tell [was] prong of the first respect part to the second With persons to whom the is, person or test, inculpatory statement declarant made relationship person with that nature of declarant’s concluded that persons, or court “[consider- . . . made ation of the individuals to whom court their trustworthiness.” The supports statements . . first fact that . disclosure found: “[T]he of his whereabouts October regarding the details . whom he 30, was to . . Mills friend [a trusted] Bryant his statement. supports the trustworthiness of case, of a connection to the facts this and Mills shared experiences Haven Belle back to their shared dating [in] up Following to the murder. leading the time during of Bryant repeated the events [Mills], this disclosure to petitioner’s] 30, 1975, to [Kennedy] October [the which further its trustworthi- investigator, confirmfs] respect investigator, ness.” With to the court underscored that Col- namely, Colucci, the trial Bryant [Bryant] being that was “explicitly ucci informed Bry- with a court sought proceeding. out connection being that his statements were ant was further aware clearly recording and that [video-recorded] anticipation presented of in court. being made in being University Law Bryant from of Tennessee graduated role Bryant’s knowledge of official School. [Colucci’s] than indication of trustworthiness provides greater declarant does with whom the the normal individual relationship.” not have close factor, trial court then considered the second were the extent to which statements namely, of existence corrobo- corroborated, and found supported rating circumstances conclusion that trustworthy. those statements were The court identified following corroborating circumstances in its memo- “Bryant to . . (1) randum decision: went . Bruns- wick School and was classmates with the children in the witnesses, Belle Haven neighborhood”; (2) “[s]everal . . . including Walker, . . Mills and . confirm[ed] Bryant Haven”; (3) socialized Belle “witnesses [in] Bryant [previously indicated that confirmed] had] present in Belle Haven night been] [had murder”;32 . . (4) witness . seeing “[o]ne recail[ed] . Tinsley Bry- Hasbrouck and . . in Belle Haven with 1975”; ant during the fall Hasbrouck (5) “[b]oth Tinsley admitted [Kennedy] had been Belle Haven with “Bry- on several occasions”; (6) ant provide descriptions also detailed layout [d] Haven, Belle including accurate recitations of where “ people in the neighborhood lived”; (7) [according Bryant, feet, Hasbrouck was two inches tall], [six pounds least 200 ‘very on the date of the [murder], and strong’ ”; “Bryant . (8) stated that . . Hasbrouck was obsessed victim], with and ‘wanted caveman go [the on her,’ meaning her, away that he would club her drag sexually the hair and her”; assault (9) night “[o]n murder, he, stated that Hasbrouck and Tinsley walked around Belle Haven golf clubs from 32According witnesses, namely, Bryant (Bryant’s mother) to these Barbara Ingledew (a Bryant’s mother), Bryant and Esme of Dick friend told them shortly after victim the had been murdered that was in on Belle Haven night fact, Bryant that, the of according the murder. In Barbara recalled to son, Tinsley night her both Hasbrouck and also were in Belle Haven that and, Tinsley addition, spent night that Hasbrouck and had the entire testimony Bryant particularly significant there. The of Barbara and Dick is Bryant’s contemporaneous because it contained of account his whereabouts night, given shortly that an account because it was the after murder only years old, strongly when fourteen his corroborates state many years ments, later, he, along Tinsley, made that with Hasbrouck and night part on been Belle Haven of the murder. See III G of3 opinion. this residence, stating with Hasbrouck

the [Skakels’] that he would leave ‘caveman club’ and he had his had suffered unsatisfied”; victim (10) Haven Belle “[t]he her and stab injuries to head multiple and severe being with neck, which were consistent to her wounds shaft”; of (11) “[p]ieces by piece golf of club caused body the victim’s were found near golf club resi- at the brand of club found golf same [Skakels’] petition- presented dence”; and (12) “[e]vidence were these clubs criminal trial er’s show[ed] property.” commonly left about the [Skakels’] Bry- stated: “Corroboration The trial court further very can in the reason be found ant’s statements [also] present case, In testify. to he is unavailable Tinsley their have all invoked Bryant, Hasbrouck and after served being [privilege against self-incrimination] concluding testify deposition.” at a subpoenas to Tinsley’s invocation of Bryant’s, Hasbrouck’s supports the self-incrimination privilege against their trial reliability statements, Bryant’s incriminating men concluded that three necessarily court also to do otherwise their because privilege had asserted possible prosecution criminal expose would them Bryant’s statements.33 of the truth of on the basis Tinsley’s Bryant’s, Hasbrouck’s and note that the trial court found that 33 I privilege against corroborated their self-incrimination invocation of required though an inference. was not to draw such statements even court Milla, 738, (whether (2008) A.2d 1227 v. 287 Conn. Cf. Rhode may privilege nonparty against be seh-incrimination witness’ invocation court, by be made fact finder is determination to considered Furthermore, basis, discretion). case-by-case sound in exercise court’s noted, explained argument majority in oral before this has the state as the immunity prosecution grant from court that it did not seek to testimony practice compelling it purpose is not the state’s because view, telling immunity persons who, grant are not state’s Tinsley privilege against Although also invoked their truth. Hasbrouck and immunity grant though self-incriraination, them even the state elected not denying had made involvement it the statements that credited murder. victim’s respect factor, With to the third and final the trial Bryant’s “clearly court found that statements were penal against (Emphasis his interest.” added.) Although a murder, Bryant’s confession to the victim’s state- place ments him at or murder, near the scene Tinsley, immediately with Hasbrouck and before the victim acknowledged pos- was murdered. also club, sessing golf instrumentality used to kill the victim, he had obtained from the Skakels’ property. Bryant provided information that demonstrates an insider’s of the crime and knowledge would constitute highly incriminating guilt evidence of if were to be of prosecution for an offense target or offenses relating Bryant’s to the death of the victim. Indeed, mother had him not to urged come forward “because implicated he would by] be the murder putting him- [in self at the scene of the crime.” Furthermore, when he finally did forward, Bryant, come a law school graduate, was acutely aware of the incriminating nature of his information. The trial court also observed that explain away possible physical evidence “[e]fforts indicate a [Bryant’s consciousness guilt. statements presence his concerning day Belle Haven on the possession the murder and his of a golf club at that represent time attempt] away an to explain the possibil- ity that fingerprints his might be found on the murder weapon nearby.”34 or another golf club Finally, although Bryant eventually disclosed the information that he had wary been so revealing, subsequently invoked his privilege against self-incrimination, further demonstra- ting understanding of incriminating nature of his statements. fully

I agree with the trial court’s conclusion that the Bryant evidence, although hearsay, be would admissible at a exception second trial under hearsay to the 34 fact, Bryant Kennedy “surprised had told that he was the authori [that get prints didn’t off those clubs.” ties] [his] penal interest. trustworthy against

rule declarations found, Bryant as trial court Indeed, because, be consid- of the three factors to each evidence satisfies admissibility of such declara- determining ered in reliability of that the requirement tions, including by clearly corrob- must be demonstrated the statements contrary would conclusion circumstances, orating with traditional “a trial in accord deny process.” Chambers standards of due and fundamental the reasons set Mississippi, supra, 410 U.S. 302. For v. court, opinion, having III the trial part forth in G this recognized the trustworthiness properly to consider that evidence improperly failed statements, trial evidence. Before of the original in the context necessary, first, however, it is issue, to that turning in the record that additional facts identify certain determination; trial court’s trustworthiness support the to address the opinion; second, D part see III of this trial court by the concurrence that the expressed view would Bryant that the evidence improperly concluded trustworthy as statements at a new trial be admissible opinion; III E of this penal interest; part see against why would explain evidence third, to and, hear- exception residual to the be admissible under the satisfy did not the declara- rule even if say that evidence exception hearsay rule. penal interest tion against opinion. FIII of this part See

D That Render and Circumstances Additional Facts Trustworthy Bryant Evidence reasonably have relied on cer- court could The trial hearing peti- on the adduced tain other evidence supports the because that evidence tion for new trial are admissible Bryant’s statements finding court’s penal trustworthy party against declarations third evidence, moreover, supports also This same interest. the conclusion that those statements meet the Shabazz credibility threshold as a matter of In particular, law. degrees corroborated to varying testimony the statements of numerous wit- nesses, proffered state plausible explanation has no why Bryant, about whom there is adverse in nothing the record, falsely would implicate people two innocent profile in a and, murder at high time, place the same himself, reputation his family’s reputation and at risk, physical severe and there is evidence that corrobo- rates statements.

Perhaps the significant most additional corroboration Tinsley comes from Hasbrouck themselves, both of whom, before their invoking privilege self- against incrimination, spoke on several Kennedy occasions to and others and that in acknowledged were Belle day Haven on the they previously of murder and that Byrne’s had visited house on number of occasions. That light corroborative evidence came to follow- ing manner. After his initial conversations with Bryant, Kennedy attempted verily some of the information Bryant provided him. He first located and called Hasbrouck at his residence in Bridgeport. When answered, Kennedy Hasbrouck identified himself and his relationship petitioner. to the Kennedy asked Has- brouck whether “Tony he knew Bryant.” Hasbrouck confirmed he did and volunteered that he Bry- ant used “run around” Byrne with and Walker in Kennedy Greenwich. then asked Hasbrouck whether he was in Greenwich on night of the murder. Has- responded brouck that, “unfortunately,” he was not there. also only He claimed that recently had learned about the murder. Kennedy Hasbrouck told Tinsley living Oregon he spoke with although Tinsley occasionally, he had not been touch with Byrne, Bryant Walker or since 1970s. Before hanging Bryant’s telephone Kennedy asked

up, Hasbrouck number. Tinsley and,

Kennedy Oregon, to locate was able Hasbrouck, Kennedy tele- days speaking few after Kennedy that Tinsley. Tinsley told Hasbrouck phoned Kennedy response him. In might call had mentioned Kennedy asked Has- questions that general to the same he had met Tinsley explained that brouck, he and Hasbrouck had School and that Hughes High on several occasions. to Greenwich gone Tinsley, going to Greenwich “was sort of According to community.” . . rich people . . to meet . fun . new half dozen times” Tinsley went to about “a Greenwich family “real well.” When and remembered the Walker Tinsley responded that Byrne, he knew asked whether “probably . . . house three times.” gone he had to his had Greenwich Kennedy gone asked him whether he Tinsley “Hal- responded, before Halloween. night on the up I have going it me we were there. loween, seems to . . .” Kennedy . then asked remembering a hard time Byrne committed suicide him he knew that had whether Tinsley responded murder. that years a few after the that, not of that fact and “after murder he was aware up . . . .” never went there ... we initially who claimed Hasbrouck, however, Unlike the minder until around the not to have learned about arrest, Kennedy Tinsley told that time of the York about the murder the New Times he had read he had it with his and that discussed happened after it they that he that Tinsley thought further stated brother. sometime party during to a in Greenwich had gone recalled, He then up the week to Halloween. leading Byrne’s really huge. “house was prompting, without that kitchens, old, was They different and it an had two if I’m kitchen, There a servant’s historical house. just .... huge not .... It was mistaken [The] push[ed] .... had no handle refrigerator [Y]ou electronically door . .” popped open button . . Tinsley, According Byrne had made fun of him because he it He open did know how to at first. Byrne “toys also recalled that lots of and stuff . . . had mess with” sprayed around and that once so shaving much cream inside the house that it “looked . . Tinsley like hell . .” told Has- Kennedy he, brouck and had attended a in Greenwich dance during period. I previously indicated, As in his Colucci, Bryant interview with also attending recalled dance Greenwich with Tinsley, noting Hasbrouck and that Hasbrouck had been fixated on the victim for the evening. entire victim herself about a wrote dance diary, stating her strangers approached two her as soon as she in. walked She also recalled seeing Walker, Bryant’s friend, good many other people the neighborhood from night.

Finally, Tinsley Kennedy volunteered to that, some- time around the time the murder, girlfriend, lived in Greenwich, away who ran with another friend to Philadelphia, and that he, Hasbrouck and met up with them while they York were New and tried to convince to go them According Tinsley, home. someone had him called on the telephone apart- at his ment looking girls. Tinsley claimed after Bryant spoke to the caller on the telephone, the girls went home.

Kennedy Tinsley asked whether he ever had seen the Skakels’ house or Tinsley eaten there. responded: only time that I ever heard or thought of “[T]he [the petitioner], and I never them, met of [was when] [Bryant] pointed these out guys [Byrne] . . . said [and] . . . that one them nuts, of was I said, and what do you mean He said, you nuts? was know, peti- it [the tioner], and he in said pretty serious fight [he a] . at . . Brunswick School was expelled].” [and that he Kennedy over all of the information turned September 2, On Colucci had to Colucci. gathered visit Steele, made an unannounced associate, and his Colucci testi- Bridgeport. to at his home Hasbrouck to a sense of of the visit was purpose get fied that Bry- to how he reacted to person, Hasbrouck as a see would inquire agree and to whether he ant’s accusations According interview as had. to a video-recorded and, immediately Colucci, talking Hasbrouck started seventy minutes, approximately over the course his where- story respect three times with changed day First, the murder. he told Colucci abouts on the morning he Haven on the and Steele that was Belle “nothing left noontime because the murder but around he, . Next, on . . .” he stated that much was going in the but went Tinsley morning and arrived p.m., got 6:30 “before it dark.” home between and he interview, stated Finally, at the conclusion and left around morning there group got p.m. or9 9:30 Tin- Hasbrouck, Colucci contacted speaking

After conversation, sley Oregon. During by telephone day in Belle Haven on the Tinsley stated that he was anything remember more of the murder but did not thereafter, however, both Hasbrouck long than that. Not Tinsley that, after their consulting and notified Colucci they were not in Belle calendars, they had realized that day. that Hasbrouck admit- Colucci testified Haven spoken Tinsley they and that had ted purpose reconciling consulted each other Tinsley, Bryant, like their Both Hasbrouck stories. self-incrim- subsequently privilege against invoked their testify deposition subpoenaed to ination when petitioner.35 noticed suggests state because Colucci’s interviews Hasbrouck Tinsley recorded, written and because one of the interview were not statements, Tinsley’s

reports mistakenly failed to reflect certain Colucci’s Tinsley’s testimony acknowledgment concerning Hasbrouck’s 30, 1975, necessarily There is not reliable. were in Belle Haven on October aspects Other witnesses also corroborated various Bryant’s statements, close including ties Tinsley’s presence Belle Haven and Hasbrouck’s and Haven around time murder. For Belle at or of the Walker, example, who lived across the street from Byrne and attended Brunswick School with Bryant, tes- Bryant many tified that visited his home “on occasions” that, Manhattan, and after had moved to he had brought Tinsley Hasbrouck him Greenwich . .” that, “a few times . . Walker also recalled on one Byrne’s occasion, mother called his to complain house that either Tinsley, Hasbrouck or he could not remem- one, ber which was the wall sitting house, on outside her “purportedly for waiting [Byrne] to come home .... she And with him being there, uncomfortable asked if find a to tell way could him to [Walker] [he] stop doing that.” Walker that, by stated the time he got outside, whoever it was left, [Bryant] “so called [he] and asked him if he [Tinsley] could tell or [Hasbrouck] stop hanging [Byrne’s] around at He house.” did not recall, however, Tinsley whether or Hasbrouck, had come his house on night murder, which awas school night him, he did not remember Hasbrouck ever saying anything about the victim in presence.

Marjorie Walker Hauer, Neal Walker’s sister and the victim’s friend, best testified, although she remem- Bryant well, bered she did not recall whether she ever Tinsley had met or recall, however, Hasbrouck. She did Tinsley same incident that Kennedy had related to involving away the Greenwich who girls ran and ended up in New City. York Hauer wrote about the incident appear any dispute, however, does not testified, to be as Colucci both changed story being day men their about in Belle on Haven checking victim’s murder after their calendars. the state Because does not challenge testimony subsequently changed Colucci’s men the two their stories, dispute they previously there also can no be had indicated that were Belle Haven that date. 600 1975, days before the diary four

in her on October the record diary entry read into murder, and the petition for a new trial. Hauer at on the hearing my and Bryant, friend, . . . brother’s wrote: “I called saw of and he said he boyfriend girls] one [of [the] City]. ... I were New York and that them, [in . . . three to come to to other try told him convince and one graders, Two them are ninth home. [is] entry diary . .” Hauer’s bears . . eighth grade Although Bryant’s Hasbrouck no to assertions that direct relation responsible petitioner, were and and not Tinsley, Tin- murder, nevertheless confirms it the victim’s days just Haven before sley’s people ties Belle the murder. is considerable corroboration

There also Byrne’s how, house and because regarding statements Tinsley easily could have size, Hasbrouck and its Hauer, any adults.36 been there and not been seen street, the house across the described grew up who style stone” mansion with “huge as a Tudor “lot[s] brother, Walker, spent her rooms.” Hauer testified that Byrne’s it “a little because was a lot of time at house supervision” as much and there,” freer wasn’t “[t]here toys play with, go lot fun like carts “[Byrne] had a tunnel like that.” She also recalled secret things through the house that was accessible that ran beneath Garr, investigators, one of the state’s an outside door. you “enormous” that if testified that the house was house, possible it area of the would be were one in a area. person was different be unaware that another Byrne’s brother, the house According to older rooms. twenty-eight Byrne’s deposition although live his he did not testified at brother murder, seeing he did not recall Hasbrouck Haven at the time of the Belle morning murder, Tinsley parents’ after when house on the used in a basement office he there. arrived work

Wholly apart from the foregoing corroborating evi- dence, Bryant’s testimony is credible because however, complete any apparent absence of motive for v. Gold, supra, him to lie. See, e.g., State Conn. (declarant’s corroborating 634-35 lack of motive to he is reliability party circumstance that of third indicates penal Indeed, the against interest). statement state has Bryant any- adduced no evidence suggesting that had to thing gain by forward with coming false information petitioner exonerating implicating and Hasbrouck Tinsley every in the murder. Moreover, victim’s witness who single Bryant’s knew about allegations Bryant before agreed to his video-recorded interview Biyant with Colucci extremely testified that reluc- to only tant come forward and so did after been had on the of wrongly, basis the evi- convicted — Bryant only Bryant’s dence known to after iden- —and tity already publicly. undisputed had been disclosed clearly demonstrates, therefore, evidence Bryant that any sought publicity never or on account recognition of what he knew about Tinsley; rather, Hasbrouck and repeatedly he failed or telephone refused return calls cooperate or otherwise who, with those behalf petitioner, sought him interview about his infor- mation.37

Furthermore, significantly, there is nothing the record concerning Bryant’s or background charac- ter that would genuine cast doubt on credibility his or trustworthiness as a In particular, witness. the record suggests Bryant up might story merely The state that have made his get act,” perhaps gain “to into the the attention of former his classmates. theory, theory hypothesized by majority; part This like the similar see opinion; highly implausible absolutely III G of this is because it is clear from Bryant possible any everything publicity the record that did to avoid or purported attention on account what he to know about the victim’s Indeed, twenty-five years murder. he not did confide in Mills until more than murder, following person who, after the of a arrest on the basis facts, knowledge is innocent. a Bryant that has establishing

is devoid of or he otherwise has reputation for untruthfulness38 tendency has to be dishonest. that he a demonstrated to believe that would especially It is hard therefore falsely two former classmates story accusing concoct fact, they nothing to do. of a murder with which Bryant since attended who has known Mills, Bryant very is “a testified that together, grade sixth he could easy person,” kind friendly, going, “ever Bryant saying instance of single recall a no Moreover, there is indi anybody.” word mean about illness or suffers from mental cation question instability judgment call into that might ability fully the appreciate significance or Simply is provided. put, has there information that he person no think that the kind reason to necessarily the trial court believes who would do what is, falsely implicate people two he has done —that as incredible. rejecting in a murder —in his statements any contrary, has failed to adduce On the the state any is Bryant that probative demonstrating any likely testimony than other provide more false Bryant a crime. comes with about knowledge citizen a family, graduated private pre- from prominent from a Texas, his paratory college degree school obtained attained law University Houston,39 and his from University of Tennessee. He is married degree from the apparently his own busi- with four children and owned with at the time of his video-recorded interview ness Bryant is articulate interview, highly In that Colucci. and extremely rational, thoughtful forth- appears and may credibility (a) (“The of a witness be § Conn. Code Evid. 6-6 See impeached supported by for truthfulness or or evidence of character reputation. opinion or Evidence truthful untruthfulness in the form of only for truthful is after the character of the witness character admissible impeached.”). ness has been Bryant athlete in both also was a standout The evidence indicates college. high school and I coming. plausible explanation can think of no —and majority proffered neither the state nor the has one— why Bryant’s someone in position would accuse two childhood friends of a if he heinous crime knew that they did not it.40 commit powerful why there are

Nevertheless, several reasons Bryant’s keep someone in might shoes elect to his infor- potential mation to himself. First and foremost is exposure criminal that he face might coming for- ward; expressly found, as the trial court “one of the Bryant’s testimony trustworthy reasons is is [that] Bryant places Haven, because himself Belle on the murder, company victim], in the night [the discussing Tinsley and assaulting Hasbrouck [her] possession of golf clubs to the Skakel belonging 40 course, state, however, credibility. Of I not vouch do The presented Bryant has no evidence to not an establish honest or person. evidence, light credible In the absence of such and in of what we background, improper, entirely do know about him it would be petitioner, Bryant trustworthy person. unfair to the to surmise that is not a Undoubtedly reasons, sought for those neither state nor the trial court has aspect personal, to discredit on basis of of his academic or professional background. majority, by contrast, suggests Bryant may have “lied to or friends, possibility majority suggests might misled” his that the also reflect adversely credibility Bryant’s on the statements to Mills and Walker. In support assertion, majority of this relies the fact that Millsand Walker lawyer sports understood that was a though or entertainment even Bryant, graduate, practice fact, a law school licensed law. In Bryant, noted, who, previously evidence indicates that Ias comes from family truly distinguished sports has itself in the and entertainment world, screenplays has written several and otherwise been involved in the Furthermore, nothing law and entertainment business. there is Mills’or testimony suggest Bryant Walker’s to that either them believed that had any way. Indeed, asked, Bryant misled them in the record reflects when did not hesitate to reveal that he was not a of the member bar. In the any Bryant intentionally suggest absence evidence to that his misled anyone respect professional endeavors, friends —or else—with to his it is improper majority speculate particularly for the to otherwise. This is true light any casting of the fact that the state to has failed adduce veracity concerning doubt on the own statements the nature of professional his activities. wish become few would to

family.”41 Second, people especially when public controversy, in so a embroiled already has been convicted. alleged peipetrator twenty- for Bryant refused more than Third, because with his murder to come forward years five after the Tin- about Hasbrouck and incriminating information credited, petitioner’s if would result in the sley, which, family he the scorn of his and exoneration, risked both and friends, disapprobation investigating and the public. general authorities as well prosecuting Bryant falsely that would Finally, highly it is doubtful in a crime that occurred implicate boyhood two friends nearly thiriy-five years by providing information ago state, would seek to discredit. many, including an liar or a my view, only sociopath, inveterate to something calculating perjurer significant gain with information at issue provide information, like the would present case, and incrimi- exonerating guilty absolutely is no indication the innocent.42 There nating it Bryant true, is is person. Although such Bry- to course, that the state was unable cross-examine he privilege against ant because invoked his self-incrim- Kennedy anyone Indeed, Bryant their first conversation that stated with in the “has become a who had come forward information case either go through suspect,” whacko or a and that did want that.” not] “[he Bryant Littleton, presumably Gregory referring Coleman and Kenneth key petitioner’s pre at the criminal trial. As I two of state’s witnesses petitioner’s viously noted, drug Coleman died of a overdose before the testimony probable hearing trial, his cause was read to the criminal suspect murder, jury. Littleton, who, years, was himself a in the victim’s problems, including about suffered from serious mental bizarre delusions family. extended himself believe, asserted, I that there is The state has not do possibility simply is mistaken in assertions with reasonable incriminatory respect of Hasbrouck and to the conduct and statements certainly Bryant may Tinsley. possible Although or it is be confused recounted, faulty respect some of the he that his recollection details provided confused the information that he has is not such that could be therefore, that, appear, if or its nature. It would mistaken about essential telling lying, truth. is not he is ination his deposition, provide the state was free to the trial court or with information evidence demonstra- Bryant person not a can ting that is who be trusted to tell truth. so, the Because the state did not do one Bryant cannot attribute a motive for or reason lie speculation without the rankest kind of engaging Indeed, and guesswork. majority purports itself to speculate why Bryant “decline . invoked his . . right testify,” presumably because the evidence provides nary a hint of such than reason other the self-incriminatory nature his statements.43 absence even the slightest suggestion of a motivation Bryant for to he, reject the trial court and majority only plausible Bryant reason forward, to come reason that is a supported by evidence, namely, convey desire to the truth, belatedly, albeit to avoid injustice. further

Thus, though even what we know about is not his background indicates that he person who would provide knowingly testimony, despite false the fact that the record completely of any devoid a motive to so, do the trial court and the majority have determined that is so lacking credibility that there is no reason to consider his video- interview, recorded together with the other corrobora- tive evidence, in relation to the evidence adduced at criminal trial. This determination, which is based exclusively almost on fact that no witness recalls seeing Bryant, Tinsley Hasbrouck or on eve- ning explain the murder —a fact fully as I more equally Tinsley. they This is trae for If Hasbrouck were not even murder, night why in Belle on Haven it is difficult to understand against privilege self-incrimination, especially would have invoked their already in view of the fact that someone else has been convicted legitimacy unquestioned by pros victim’s murder —the of which remains ecuting reputation authorities —and because of the adverse effect one’s inevitably has, particularly high profile that such an invocation ain murder case such as this one.

606 may explained by a opinion, of be part in III G this in view simply untenable variety of considerations —is favor of strongly that militate in of the various factors recently Indeed, as this court contrary conclusion. largely involve cred “in circumstances stated, has did], criminal trial ibility contest, petitioner’s [as witnesses testimony neutral, disinterested marks important.” (Internal quotation exceedingly Correction, Commissioner v. 290 omitted.) cert. denied sub nom. 518, 1186, Conn. 964 A.2d 502, 558 130 Ct. L. Murphy Bryant, 259, S. 175 v. U.S. Ed. 2d 242 (2009). physical was no evi-

Furthermore, there although petitioner to the mur- any connecting kind dence Bryant’s physical corroborating there is evidence der, I detail explain greater the facts. As version of opinion, B this the victim was ambushed part IV of house, Skakels’ clubbed over way her home from the or golf dragged least one club and the head with at feet, 100 where she was discov- approximately carried likely sexual under a tree. The partially ered naked is reflected the fact nature of the crime pulled below pants and underwear were down victim’s Moreover, investigators evidence also led her knees. unfamil- was disoriented or perpetrator believe that iar with number direction the area. fully be consistent with hav- injuries appear to

victim’s club, one and the golf inflicted more than ing been approxi- was or carried dragged fact that the victim may attack have mately feet that the suggests also In addi- by more than one assailant.44 been carried out assigned per Keegan, originally the Greenwich detective Thomas G. murder, investigation conducted a review of form the victim’s gives how was commit rise to inferences about the murder crime scene that by Henry Lee, respects the conclusions drawn ted differ in some from Only formerly Lee testified at trial to how chief criminalist. state’s notes, Keegan, however, likely docu took meticulous unfolded. crime physical menting at the crime and condition of the location paths through connecting scene, including blood and the leaves obvious tion, because the strategy predi- cated almost exclusively alibi, on his the defense did not challenge part theory of the state’s as to how the crime was committed or whether someone of the petitioner’s size would have capable been of committing such a brutal crime without the assistance of an accom- plice.45 In any event, for fully the reasons set forth more part IV B of opinion, this I believe that the crime scene lends support credibility to the statements about the murder.

Finally, the reasonably trial court could have relied on other important physical evidence that corroborates physical evidence, other and reached somewhat different conclusions regarding, among things, began other where the assault and the in manner which some of the evidence came to be located in certain areas of the crime explain fully part opinion, scene. I Keegan’s theory As more IV of this of how the by murder occurred is more consistent with an assault carried out one, particularly two assailants rather than if the lone assailant was someone petitioner; opinion; because, the size of the Keegan’s see footnote 45 of this view, body the killer or killers moved the victim’s over a considerable distance. 45 Although petitioner one strong childhood friend described the athletic, photographs petitioner of the victim and the taken around the time petitioner, just fifteen, of the murder reveal that the who had turned appeared no taller than the victim and to have been even smaller. In one photograph, example, standing such is with his freshmen and, boys team, only soccer team average relation to the other on the is of boys photograph, including petitioner, size. Most of appear in the experienced any significant growth spurt. not to have Por the reasons set part opinion, petitioner’s forth IVof this size at the time of the murder my newly is relevant to conclusion that the discovered evidence warrants heavily petitioner’s new trial. Because alibi, the defense relied so on the by and because the issue of whether the crime had been committed one relatively unimportant assailant or two was long to the defense as as the point state could household, another member of the Skakel such as Skakel, possible perpetrator, Thomas as the apparently second the defense challenge any aspect saw no need to of the state’s reconstruction of the Indeed, crime. petitioner’s the central thesis of the state’s case was that the family conspired up Consequently, had to cover the crime. the defense did question, among things, other whether someone of the size physically capable would committing have been Signifi the crime alone. cantly, police department’s original investigation, Greenwich crime scene evidence, appears the results of support which were not introduced into supplied. That the information that from sheets two human hairs recovered consists of body, wrap one which that were used to the victim’s laboratory (lab) crime was identified the forensic Investigation “pos- (FBI) as the Federal Bureau of sessing Negroid . .” Technicians characteristics . . analysis samples microscopic conducting certain hair only two that the hair was dissimilar to concluded in the at the African-Americanmales known to be area police officer and son of time, Greenwich Subsequent family’s testing on the second Skakel cook. possessed Asian characteristics. hair revealed it Significantly, are of African- Hasbrouck and Tinsley, Bryant, according descent, American origin, possibly of descent. race Asian mixed

E Concurrence The abused contends court concurrence Bryant concluding that the evidence its discretion hearsay trial under would be admissible at a second penal exception against interest for statements according concurrence, the trial court because, Bryant’s reasonably that could not have concluded against penal interest. For are, fact, statements his disagree. I follow, the reasons that Bryant’s the concurrence that conclusion of penal predi- against his interest are not is statements separate First, but related claims. cated on three Bryant breaks evidence into dis- concurrence down analyzes sepa- statements, each such statement crete rately, none viewed, then concludes when so sufficiently disserving is so as various statements expose Bryant liability. The to criminal concurrence or, possibly, assailants the conclusion that the murder was committed two petitioner. by single bigger stronger than assailant who was much suggests that, state, hearsay exception next this penal applies only for statements against interest those statements directly implicate the declarant in a crime, and, because, in the view of the concurrence, Bryant’s satisfy statements do requirement, they do not fall hearsay exception. within that Finally, the concurrence maintains if that, even the trial court reasonably Bryant’s concluded that some of statements were sufficiently penal his against interest, partic- those ular implicate statements do not Tinsley Hasbrouck and and, therefore, do not advance the third party culpability defense. The concurrence further con- tends, along lines, these same that, because the state- ments that Tinsley attributes to Hasbrouck and are self-serving, is, they tend to Bryant, exonerate those statements are not admissible at all. Although concurrence concedes that a declarant’s self-serving may statements be admitted when those statements are inextricably linked self-inculpatory with the declarant’s statements, it asserts that that is not the case here. None of these arguments persuasive. analysis

The concurrence’s of the trial court’s ruling concerning admissibility begins an examination of each disserving state- ment isolation, divorced from Bryant’s the rest of narrative. Upon viewing remarks in this man- ner, the concurrence asserts, first, “Bryant’s state- ment that he was in Belle Haven on the night murder is not against penal interest . . . because (1) his presence, alone, does not subject so far tend to him to criminal liability for the victim’s murder, espe- cially light the fact that Bryant states, and the reflects, record many people that were in Belle Haven that night, Bryant and (2) specifically states that he took a train back to Manhattan . . . from . . . Green- wich . . . before the victim was murdered.” (Emphasis in original.) The concurrence also Bry- contends that possessed one that he acknowledgment

ant’s the murder is not night clubs on the Skakels’ golf that held Bryant never stated because incriminating murder, was used in the and specific club that “not interview, in the claimed, later same because he The con- how the victim murdered.” even to know his reasons, therefore, “at the time of that, currence have not known Colucci], would statement [to be one of Skakels’ clubs could handling golf that further penal his interest.” concurrence against even if knew how the victim contends golf clubs killed, concerning been his statements penal interest he also stated are because against clubs,” Haven those in Belle touched “[everybody in the to no greater thus himself murder implicating anyone Lastly, else in Belle Haven. degree than not support does concurrence asserts that record Bryant discussed court’s determination that Tinsley the victim Hasbrouck assaulting Bryant made suggests determination because that when, those discussions disserving during statements expressed an intent only Tinsley Hasbrouck fact, sexually. the victim to abduct and assault each statements this man- isolating ner them out the context which considering employs they actually were the concurrence an spoken, analytical incompatible with this court’s model that is of whether statement mandate that the determination sufficiently against penal is to be considered disserving be made the entire state- examining interest shall Bryant, See State supra, v. ment Conn. in context. analysis, the trial 696-97. In contrast court’s represents pre- uses approach concurrence approach cisely kind of and inflexible narrow rejected purposes of expressly this has court penal whether a statement is inter- determining against fact, 695. In because all contex- id., language est. See tual, impossible it is to discern the import fundamental virtually any statement viewing it in a linguistic or factual vacuum. This is what the concurrence has done, however, Bryant’s parsing remarks them reviewing separately from one another and from totality of the surrounding circumstances. This approach leads the concurrence to the wrong result, for as the United Supreme States Court explained has in construing rule 804 (b) (3) of the Federal Rules of Evidence,46 “whether a statement is self-inculpatory or not can ... be [only] determined by viewing it in context. Even statements that are on their face neutral may actually be against the declarant’s interest. ‘I hid the gun apartment’ in Joe’s may not be a confession of crime; but if likely it is help police find the weapon, murder certainly then it is self-inculpatory. ‘Sam I and went to Joe’s might house’ be against the declarant’s interest if a person reasonable in the declar- ant’s shoes would realize that linked being to Joe and Sam implicate would the declarant in Joe and Sam’s conspiracy. And other statements that give police significant details about the may crime also, depending on the situation, be against the declarant’s interest. The question ... always whether the statement was suf- ficiently against the penal declarant’s interest ‘that a person reasonable in the position declarant’s would not have made the statement unless it believing to be true,’ question and this can ... be answered [only] light ” all the surrounding circumstances. (Emphasis added.) Williamson v. States, United supra, 512 U.S. 603-604.

An examination of entirety statements reveals that places himself at the scene of the crime, in the company of the victim, shortly before opinion. See footnote 27 of this weapon,47 murder holding possible the murder,

the Bryant’s to that that statement Colucci he The concurrence contends clubs, it,’ “picked up golf ‘swung ‘[slung] it back to of the Skakels’ one bag against . . was’ . . does not constitute a statement his where the . . “Bryant golf penal not that he touched the club interest” because does state Bryant original.) (Emphasis in in The mere fact that did used the murder.” was, fact, golf he in the club that not know whether the club that handled against victim not mean that his statement was not was used kill the does Bryant’s possession penal First, acknowledgment that he was in his interest. weapon certainly may what been the murder constitutes evidence have charged were he . . . the individual that “would tend to incriminate [him] quotation Bryant, supra, omitted.) (Internal marks State v. the crime.” with Second, Bryant disserving, understood that his statement was 202 Conn. 695. significance gives as a declaration and it is that fact that the statement Bryant’s expressly found, penal Finally, against interest. as the corut possession golf day murder, concerning his of a club on the of the statements Kennedy “surprised” including the authori his that was that statement clubs,” get prints [golf] that he knew “didn’t off those demonstrate ties [his] fingerprints attempt golf be for and reflect his that the clubs would dusted thereby explain away possible physical evidence,” “indicat[ing] a con “to reasons, guilt.” is to assert that For all of these it incorrect sciousness Bryant’s golf disserving. the clubs were not remarks about Bryant’s handling that about The concurrence further contends statements reasonably night golf clubs of the murder cannot be construed on interview, Bryant penal because, against in interest later as statements victim murdered.” The concurrence “claimed not even to know how the was Although Bryant apparently sought out of never takes this statement context. exactly committed, the murder was ascertain a detailed account of how he, virtually everyone perfectly else that like connection it clear profile case, generally high was aware that the victim had been beaten to this explained, fact, he had understood that Hasbrouck and to death. In as he style Tinsley victim, to abduct and then to “club” the “caveman intended Bryant knew the victim also states “even if how concurrence golf clubs, murdered, regarding the when viewed his statements Skakels’ insufficiently context, against penal that are interest demonstrate Bryant Specifically, pursuant (4). § to be admitted to Conn. Code Evid. 8-6 ‘[everybody clubs,’ in Belle Haven touched those ‘those stated people’s Accordingly, Bryant’s through hands.' statements clubs went tons of Bryant ‘everybody implicate victim’s than in Belle more murder no penal qualify against . . . .’ is insufficient to as a statement Haven This interest, especially light states he was not in of the fact that (Emphasis original.) again, of murder.” Once Belle Haven at the time point views assertion misses the because the concurrence this self-inculpatory golf clubs in isolation from his other statements about course, everyone golf in Belle handled clubs remarks. Of Haven per an attack on the victim with two discussing sons —both whom introduced and brought who, shortly to Belle after victim’s Haven — murder, about committed the crime.48 having boasted exception As this previously stated, court has penal “encompasses declarations interest dis- against serving statements a declarant would [made] probative have value in a trial the declarant.” against v. (Internal quotation Bryant, marks omitted.) State supra, 202 695. Thus, contrary Conn. the assertion concurrence, hearsay in this state, exception for against penal declarations includes interest “not only or of guilt, confessions” direct admissions “but other remarks would to tend incriminate [also] [that] the declarant he or she the charged individual [if] [was] with the (Internal quotation crime.”49 marks omitted.) night vicinity by murder, victim, accompanied the of the in the the who, Bryant, according and, shortly “going two men to discussed caveman” thereafter, acknowledged doing so on the victim. these When facts are context, properly considered in this it is clear that the trial court found that Bryant’s golf self-inculpatory. the comments about clubs were Bry The concurrence contends that the trial court’s characterization of “discusspng] assaulting ant’s statements as with Hasbrouck and [the victim] Tinsley inaccurately unfairly implies Bryant seif-inculpa . . . and made tory during discussions, when, fact, (Empha statements those in he did not.” result, original.) according concurrence, sis in As a to the “the trial court apparently leaped Bryant’s regarding conclusion statements against penal simply present discussions were Ms interest because he was Tinsley making against penal while Hasbrouck and were statements their (Emphasis original.) court, interests.” In contrast to the trial concur Bryant’s transpired rence views statements in isolation from what both Tinsley before and after the conversations in which Hasbrouck expressed “go Bryant’s Considering pres their intention caveman . . . .” context, ence at those discussions that broader it is evident that the trial reasonably Bryant’s concerning court found that statements those conversa tions revealed a close and confidential with association Hasbrouck and Tinsley, involvement, Bryant’s light and that that when viewed in of other placing crime, possession statements him or near the scene of the golf company Tinsley a evening club and in Hasbrouck and on the murder, supported sufficiently the conclusion that narrative was disserving admissibility against penal to warrant its as a statement interest. 49Indeed, Bryant, supra, 691-92, 694-95, in State v. 202 Conn. this court concluded that court the trial in that case its had abused discretion in certainly most meet that stan- Bryant’s statements

Id. murder, were tried for the victim’s dard, being for if he and, highly indeed, would be relevant the statements from representing to his case. Far prejudicial highly as arbitrary discretion, exercise of an irrational or claims, trial court’s determination that concurrence trustworthy declara- evidence consisted perfectly represents rea- penal interest against tions hearsay exception application of sonable by presented this case.50 factual scenario person Bryant’s position Certainly, a reasonable that he did without not have made the statements would Indeed, acknowledging them to be true. believing Tinsley close involvement Hasbrouck and some time day evening of the murder thereafter, Bryant likely that he was to become knew prosecution which, suspect murder, in that subject limitation knew, was not also observed, has a statement has As this court period. introducing evidence, prohibiting the declara- the defendant from into under by hearsay rule, penal exception against the interest to statements the tion acknowledge committing in not the most declarant which the declarant did (sexual charged had been of the crimes with which the defendant serious acknowledged committing assault) but in which the declarant nevertheless rejecting (burglary). In the state’s contention that one of the lesser crimes insufficiently admissibility that omission rendered the statement reliable for explained that, purposes, of we when viewed in the broader context the entirety statements, the the those state- facts of the case and of declarant’s sufficiently disserving were such that the defendant was entitled to ments Id., them into evidence. 696-702. introduce 50 my agreement with court The that the trial that concurrence asserts against penal Bryant’s are his interest is founded “on an inaccu statements summary Bryant’s hyperbolic of the ‘context’ of statements.” Foot rate and my opinion. contrary, analysis, concurring in On the contrast note 8 of concurrence, predicated the facts that the trial court of the is to that expressly reasonably example, For the trial court found that had found. testimony trustworthy Bryant’s is of the is because “one reasons [that] murder, Haven, night Bryant places on the himself Belle company victim], discussing assaulting with Hasbrouck of [the [the victim] Tinsley belonging family.” possession golf clubs to the Skakel and in to the against penal only as one interest significance extent that the declarant is aware that the statement self-inculpatory. Id., is is not the fact that the (“it penal but the against declaration interest awareness gives that fact the declarant which statement quotation significance” omitted]). marks [internal principle present case, that I conclude Applying it clear perfectly that both and his mother made to come than Bryant’s that refusal forward for more prior two arrest, decades reluctance do so the petitioner’s extreme even after an arrest, stemmed from concern to do overriding that Bryant’s so would result in in the becoming suspect murder.51 victim’s my analysis analysis The concurrence claims that and the trial court’s are hearsay concerning exception unfaithful our case law for statements against penal court, including other interest because cases of this State v. Bryant, supra, 676, against penal 202 Conn. involve statements interest that inculpatory are more than statements. The concurrence miscon precedent inteipreting hearsay exception. strues and our other axiomatic, course, particular It is each case must be decided on its facts, and, opinion, I for the reasons have set in this forth the trial court present properly in the case concluded that the statements at meet issue requirements admissibility hearsay exception all of the for under for against penal Indeed, crystal statements interest. as this court made clear Bryant, a statement need constitute a confession or other direct acknowledgment guilt admissible; 695; id., rather, to be the declarant exposes prosecution, must be aware that the statement to a him risk of probative against such that the statement would have value at a trial him. light standard, responsibility Id. In of this fact that the declarant denies admissibility for the is not a crime bar to of a statement that otherwise is incriminating purposes Thus, example, Paredes, for test. of our in State v. supra, Supreme recently 775 N.W.2d the Iowa Court undertook thor hearsay ough analysis exception penal against its state’s for statements exception, admissibility interest. Under Iowa the test for is identical to respects. exception Compare our (b) (3) all material Iowa R. Evid. 5.804 (4). that, although § with Conn. Code Evid. 8-6 court concluded involvement, expressly offense; declarant in case had denied in the State supra, Paredes, 569;

v. court nevertheless had abused its discretion barring introducing in hearsay the defendant from the statement under that exception. particular, See id. In the court determined that other statements by sufficiently incriminating satisfy made declarant the were to the “thresh adversity requirement Id., Explaining old requirement . . .”. 565. that this “poses question id.; degree”; a of the court concluded that the statement sufficiently incriminating sufficiently at issue was both and corroborated required id., that the trial court was to admit it as a matter of law. See 570.

616 that, to the extent

Finally, the concurrence contends be may be deemed to any Bryant’s that of statements only Bry- statements, and not self-inculpatory,52 those portion of that nar- the including ant’s entire narrative — Tinsley inculpates Hasbrouck and rative that —are Supreme analysis in is no and of the Iowa Court Paredes conclusion assumed, Moreover, arguendo, present if it applicable even less to the case. required present reach conclu- court in the case was not to the that the trial statements, Bryant’s concerning incriminating the nature of sion that it did certainly a manifest be said that the court’s decision constituted it cannot 36, See, e.g., Ritrovato, A.2d v. 280 Conn. abuse discretion. State of every presumption (“[w]e of (2006) in favor will make reasonable only [evidentiary] ruling, upset upholding it for trial and a manifest the court’s omitted]). quotation marks abuse discretion” [internal incriminatoiy Bryant’s Finally, is further evi- the nature statements Bryant by privilege against fact has asserted his self-mcrimi- denced the nation, thereby repeat opting at a not to those statements under oath course, testimony regarding deposition Of if his those or at trial. sworn likely him, have had no reason was not incriminate would statements testimony testify denying refusing the truthfulness because his sworn liability. any expose prior him to his also would not criminal statements that, if are also maintains even statements The concurrence interest, they satisfy penal against fail to trustwor nevertheless three (4). disagree I § in Code Evid. 8-6 factors enumerated Conn. thiness previously parts set in ni C and for all of the reasons forth this contention conclusion, note, moreover, opinion. that, reaching its D of this I rejects findings and court the reasonable inferences concurrence example, improperly its view of the facts. For and substitutes different support does not the conclusion concurrence asserts that record Tinsley having the victim’s murder. and boasted about committed Hasbrouck that, explicitly rather, “Bryant argues, Has stated that The concurrence murdering Tinsley the victim and never brouck and never confessed Indeed, any alleged details about their involvement her murder. disclosed Tinsley’s alleged never mention and comments contained Hasbrouck’s as, always terms, ” vague name and were couched such victim fantasy.’ mine,’ it,’ (Emphasis got and achieved our T did ‘[w]e ‘[w]e opinion. concurring reveals, how original.) As the record Footnote 8 of Bryant Tinsley ever, although and never identified stated that Hasbrouck they by name, Bryant expressly “I who were stated knew the victim days because, mean, implying. I or two after It was so obvious [one mean, murder, all I it was news of the victim’s over. murder] exactly they stated, talking everywhere.” “I who were further knew They talking of the facts that . about view [the about. . . were victim].” Tinsley going girl (1) “caveman” on had discussed Hasbrouck they Bryant shortly murder, (2) evening after the victim’s the victim’s told caveman,” they (3) victim was the had “achieved the murder that only person who killed in Greenwich around the time was assaulted and ” “caveman, go Tinsley it intended to had told Hasbrouck manifestly been unreasonable for trial court conclude would have hearsay admissible for exception under the declarations penal against interest. the concurrence con- Although Bryant’s cedes that statements implicating Hasbrouck and Tinsley they inextricably would be admissible if are Bryant’s linked to self-inculpatory statements, the con- currence asserts those two that sets of statements are not so intertwined. The contention concurrence’s by belied this well case court’s established law. Bryant person that had not identified the victim as the about whom Has- Tinsley speaking. brouck and had been improperly second-guesses finding The concurrence also the trial court’s Bryant’s story, twenty-six year delay that tell his reluctance to thus his coming unique it, and, forward with was reasonable under the circumstances presented, Bryant’s from of did not detract the trustworthiness statements. particular, finding Bryant In the concurrence attacks the trial that court’s knowledge that there was no statute of for murder in limitations Connect- 1975, by asserting finding supported record, icut in this that was not and, by further, that, finding supported record, even if this it would Bryant’s timely trustworthy. Bryant explic- not make statements more or itly stated, however, why one of the did that reasons not come forward immediately sooner was because he was afraid that he would be identified suspect. Indeed, twenty- as a that the fact was tried more than years murder, very least, suggests, five after the victim’s at the that the state applicable believed that there was no statute of limitations for murder. Consequently, finding Bryant he, too, the trial court’s believed that prosecuted hardly could be for the murder is unreasonable. Similarly, rejects Bryant’s the concurrence the trial court’s conclusion trustworthy because, among statements to Mills and are Colucci other rea- sons, Mills, Bryant childhood, whom has known since was someone case, trusted and with whom he shared close connection to the and because being was aware that his statements to Colucci were recorded for though findings firmly later use in a court of law. Even are these rooted in evidence, simply foregoing concurrence refuses to them. As credit examples demonstrate, accept the concurrence refuses inferences fairly reasonably by court, relying, instead, drawn on its own contrary conception doing so, facts. In the concurrence violates the principle appellate jurisprudence court, bedrock that the trial not this court, fact, and, consequently, is the findings finder of we are bound those clearly See, Key e.g., Air, unless are erroneous. Inc. v. Commissioner Services, 225, 231, (2009) (“[t]o Revenue 294 Conn. 983 A.2d 1 the extent findings fact, trial court has made our review is limited to deciding findings clearly quotation whether such were erroneous” [internal omitted]). marks Finally, mistakenly “ignore[d]” the concurrence asserts that I have certain highlighted concluded, purposes facts that the trial court when it of its credibility admissibility, determination rather than for its determination any genuine (Internal statements are “absent corroboration.” quotation omitted.) concurring opinion. marks Footnote 10 of the I address part opinion. these facts and the issues relevant thereto in G of HI this Bryant, State this court supra, v. Conn. a parts when “the state- disserving

concluded parts, it is more self-serving ment intertwined with are and the trier to admit the entire statement let prudential evidentiary quality complete in of fact assess its the however, explained, We also that Id., context.” 696-97. problem disserving of statements are both “[t]he has a declarant divided commenta- self-serving and Id., 696 n.18. After acknowledg- tors and some courts.” . . . would admit the entire view ing “[o]ne second, “somewhat different statement,” whereas the admitting only disserving portion view suggests self-serving part the excluding the declaration and parts severed”; id., n.18; two can be 696-97 the [when] view, pursu- with the first expressed we our agreement statement is admitted. entire Id. the The ant which the law of this state at least fact that this has been Bryant in the relevant our decision in reflected since commentary Evidence, Connecticut Code the provides: “When narrative contains both dis- which collateral, neutral self or serving serving statements the rule admits the entire nar- statements, Connecticut evidentiary its rative, the trier of fact assess letting quotation complete (Internal in the context.”53 quality Evid. 8-6 commen- omitted.) (4), marks Conn. Code § 53 importance recently Notably, court has underscored the the this Evidence, commentary explaining that the “cannot be to the Code of code accompanying [c]ommentary. properly the without reference to understood provides necessary [cjode, [cjommentary the context for the text of the [cjode expresses general the of evidence terms rules text Additionally, [cjommentary . . have established. . that the cases cited adopted step formally [cjode. [jjudges took an unusual when rules, situations, [jjudges, voting in which the when are Unlike other by formally commentary adopt guided do not submitted but normally accompanies changes, [cjommittee proposed [rjules rule formally adopted [cjommentary adopting [cjode [jjudges well. Thus, [cjode [jjudges have must is the first time that the done so. This fully properly [cjommentary together be with its in order for it to be read DeJesus, quotation omitted.) State (Internal v. marks Conn. understood.” n.16, (2008). 418, 442 953 A.2d 45 tary. adopted approach. Other courts have the same People v. Newton, See, e.g., 966 P.2d 578-79 (Colo. Sonthikoummane, State v. 1998); 316, 321-22, 145 N.H. 769 A.2d 330 (2000).

Notwithstanding clarity law, of our the concur- only Bryant’s rence self-inculpatory asserts state- ments, purportedly and not his self-serving statements Tinsley Hasbrouck and implicating the victim’s mur- der, are admissible. As the foregoing discussion demon- strates, light Bryant and the this assertion fails in commentary to the Code of Evidence.54 Even if the States, supra, The concurrence relies on Williamson v. United 512 U.S. 600-601, approximately years which was decided seven after our decision in Bryant, support adopt approach— its contention that this court should expressly rejected Bryant considered and which the declarant’s —under self-serving part are statements not admissible as of the declarant’s broader they narrative even when disserving are intertwined with the declarant’s Williamson, adopted approach purposes statements. In the court (b) (3) Evidence; id.; of rule 804 of the Federal Rules which is similar hearsay exception but not identical to this against state’s for declarations penal (4). explained, § interest. See Conn. Code Evid. Bryant, 8-6 As I have carefully this competing analysis court and, considered the two modes of Williamson, in contrast to approach elected to follow the less restrictive pursuant permitted to which the fact finder is to consider both the declarant’s disserving self-serving Bryant, supra, and statements. See State v. 202 Conn. Bryant, 696-97 properly and n.18. In pro accordance with the trial court manner, ceeded in that suggested and neither the state nor the has Bryant adopt that this court should overrule and the Williamson methodol ogy. Significantly, although apparent majority an of sister state courts that have considered the issue after Williamson have followed the rule of that purposes hearsay exceptions case for of their against states’ for declarations penal perhaps, exceptions because language those states’ contain interest — language that is counterpart identical to the of their federal states —other People Newton, supra, have declined to do (declin so. See v. 966 P.2d 578-79 ing Williamson); Sonthikoummane, to follow supra, State v. 145N.H.320-21 (same); Hills, 437, 447, see also v. State 264 Kan. (1998) (noting 957 P.2d 496 binding interpretation Williamson is not on state court’s of its own evidentiary rules); Commonwealth, 270, 279, Chandler v. 249 Va. 455 S.E.2d (same), denied, 889, cert. 516 U.S. 116 S. Ct. 133 L. Ed. 2d 162 (1995). any event, point that, the fundamental is in the absence of a request parties from the Bryant, present that we revisit our decision in present appropriate opportunity case does not an to decide whether the reasoning sufficiently persuasive of Williamson is overruling to warrant portion Indeed, that is inconsistent with Williamson. to do so would appellate violate the well “may established rule that an court not correct, however, portions

concurrence were Tinsley Bryant’s inculpate narrative that Hasbrouck and only to the extent that cannot be are admissible Bryant’s Bryant’s statements, disserving severed from The concurrence con- narrative satisfies that standard. may any Bryant’s be viewed that, tends if statements only statements inculpatory, indicating it those that, murder, (1) Bryant was in Belle night up golf one of the Skakels’ Haven, “picked (2) it,’ it to where the clubs, ‘swung ‘[slung] bag and back ” Bryant and point, . . “at one was,’ (3) . teenagers victim the ten to fifteen socializ- among were the Skakels’ ing the meadow [behind residence].” only further maintains that these state- The concurrence could have been deemed be admissi- properly ments court, Bryant’s self-serving ble Tinsley in Hasbrouck and implicating statements Bryant’s disserving statements, murder. though victim’s linguistic standpoint, from a are so inter- severable statements about Hasbrouck twined Tinsley self-inculpatory nature of the former those are con- appreciated be unless statements cannot words, of the latter. In other sidered in the context two sets of statements would make it severing the Bryant’s why for a fact finder to understand impossible in are, fact, self-inculpatory. self-inculpatory statements Bryant, Thus, expressly as we observed are “[t]here ... such latitude to contex- allowing cases which] [in the may real declaration give meaning tual statements Bryant, State supra, v. Conn. disserving.”55 is 202 that clearly is one of them. present 697. case parties a before it on a basis that the never have reach out and decide case deprive parties ... of an or briefed. To do otherwise would the raised (Citations present arguments regarding opportunity those issues.” omit- 556, Sabrowski, 560, (2007). ted.) A.2d v. 282 Conn. 923 686 Sabrowski 55Despite precedent long-standing supporting the trial court’s conclu our trustworthy evidence would be admissible as declara sion the concurrence, defending contrary view, against penal interest, its the tions jurisdictions jurisdiction and various federal have asserts “cases this inculpatory than statements that statements that were far more held

621 reasons, For all neither nor foregoing the state can concurrence demonstrate that the trial court broad Bry abused its discretion in concluding ant evidence would be admissible at a new under against penal exception declaration interest to the hearsay Indeed, rule. far from abuse representing an discretion, the trial court’s determination was the product a analysis predicated reasoned perfectly on a proper application principles pre settled to the facts Indeed, per sented. because the evidence bears suasive assurances of trustworthiness and is critical to petitioner’s defense, excluding the evidence would implicate present constitutional right to See, v. e.g., defense. Chambers Mississippi, supra, 302; see People U.S. also v. Div. Oxley, App. 3d 1084, 883 N.Y.S.2d 385 1078, (“[Supported by the (2009) [nonhearsay] evidence, relevant hearsay testimony proffered by persuasive defendant bore assur [the] ances of trustworthiness was critical to his defense .... In circumstances, these constitutional [in which] directly rights affecting the ascertainment of are guilt implicated, hearsay may applied rule not be mecha nistically to defeat the of justice ends .... Indeed . . . exculpatory statement as to defen- [when] [a] sufficiently against penal were not the declarant’s interest to be admissible.” neglects note, however, that, every The concurrence in each and one of cases, reviewing those court concluded that the trial court had not determining abused its discretion statement at issue against penal See, e.g., Snelgrove, the declarant’s interest. State v. 288 Conn. 742, 769-70, (2008) (reviewing discretion); 954 A.2d 165 for abuse of State Bryant, App. 565, 573-76, v. (2001) (same); 61 Conn. 767 A.2d 166 State v. Jones, App. 640, 649, (same), denied, 46 Conn. 700 A.2d 710 cert. 243 Conn. 941, (1997); Bonty, 575, A.2d 797 see also United States v. 383 F.3d (7th 2004) (reviewing ruling 579-80 Cir. Court’s District abuse discre tion); Butler, (7th v. 1995) (same). United States 71 F.3d 250-52 Cir. light extremely respect of wide latitude accorded trial courts generally to the admission evidence and the admission of under hearsay exceptions specifically, hardly surprising it is that the concurrence ruling admissibility has found in cases which the trial court’s on the or inadmissibility penal against of a statement interest has been sustained appeal. applicable that exacting a less standard dant, [than proffered the inculpatory government] an statement determining against in whether statements applies the admissible, statement penal interest are [when] defense, process due con- part a critical the forms . .” favor of admission . . may tip scales in cerns omitted.]). marks omitted; quotation internal [Citations however, even if it could be noted, As previously I had abused its discretion that the trial court established statements would be Bryant concluding that trustworthy penal declarations against admissible follow, court reasons that reason- interest, for the that those statements would ably could have concluded to the hear- exception the residual be admissible under exception. hearsay turn say rule. I therefore F Bryant’s Under Admissibility of Statements Hearsay Exception the Residual also claimed that trial, At excep- under the residual be admissible evidence would In its that the hearsay rule. conclusion light tion to the trustworthy been admissible as would have penal interest, however, the trial declarations against petitioner’s alternative claim of court not did reach the admissibility. however, would have been court, The trial its to conclude that well within discretion admissible under the residual evidence would be exception.56 56 applying an of discretion standard determine whether abuse Bryant’s properly have determined that statements would could court hearsay exception, I am mindful of this under residual be admissible supra, question Saucier, “the State v. 283 Conn. court’s statement hearsay] properly have statement the trial could admitted [a whether court type exception if the admission statement under the residual hearsay present eocrpressly exception would was barred under another appellate plenary question courts exercise review.” of law over which Id., Saucier (Emphasis original.) bears no rele 219. This admonition however, case, because, present if even to the issue in the vance penal against interest were admissible under the declaration statements expressly hearsay rule, exception exception does not bar

623 analysis. “A following principles guide my state- ment that is not of [hearsay] admissible under exceptions the Connecticut Code [enumerated is admissible if the (1) court determines that Evidence] there is a reasonable necessity the admission statement, by (2) supported the statement equivalent guarantees reliability of trustworthiness and that are essential other evidence admitted under traditional exceptions hearsay to the rule.” (Internal v. Merriam, State quotation omitted.) marks 264 Conn. n.22, 835 A.2d (2003), quoting Conn. Code Evid. 8-9. necessity may § “Reasonable be established hearsay that unless the showing statement is admit- ted, the facts it may contains be lost, either because the declarant is dead or otherwise or unavailable, because the assertion is of such nature that evidence of the same value cannot be obtained from the same or other sources.” (Internal quotation omitted.) marks State Merriam, supra, 633 n.21. v. prong, second “[T]he reliability, is in a variety met of situations .... At minimum, the statement must independently bear ade- quate indicia of reliability to afford the trier fact a satisfactory basis for truth . . .” evaluating . (Cita- [its] tion omitted; marks omitted.) State quotation internal Hines, v. 243 Conn. 796, 810, 709 A.2d 522 (1998). “We previously have identified several factors that bear [on] reliability trustworthiness of an out-of-court statement, including: whether the (1) circumstances are such that a sincere and accurate statement would natu- rally be uttered, and plan no of falsification be [could] formed ... (2) the closeness of relationship between the declarant and recipient ... whether (3) statements; hearsay exception admission of those if that bars the admission all, statements at it is because the statements do not meet the requirements exception, any express categorical of that because or prohibition admissibility against Accordingly, of such statements. reasonably Bry- issue is whether trial court could have concluded that ant’s hearsay exception. statements would be admissible under the residual in confi spontaneously was made the statement ques response to government dence or obtained ... anticipation (4) of litigation tioning conducted statement alleged between temporal proximity . . . and refers to which the statement and the events subject and is testifies at trial the declarant (5) whether quo internal omitted; (Citations to cross-examination.” Skakel, 633, State v. 276 Conn. omitted.) tation marks 127 denied, 1030, 549 U.S. 728-29, 985, A.2d cert. 888 addition, In a review (2006). 2d 428 578, 166 L. Ed. S. Ct. Court reveals Appellate from this court and cases relevant to this have been deemed other factors that whether the declarant analysis. These include is the statement id., 729; see whether lie; reason to evidence; see or other corroborated contradicted 1107 730 A.2d McClendon, 248 572, 584, v. Conn. State oath; made under whether the statement was (1999); 860, Faison, 373, 384, 962 A.2d State App. v. 112 Conn. (2009); A.2d 507 denied, 903, 291 Conn. 967 cert. impaired at the perception whether the declarant’s Rodriguez, 39 State v. statement; time made the rev’d 604-605, (1995), A.2d 1357 579, App. Conn. 235, (1996); 684 A.2d 1165 on 239 Conn. grounds, other consistently has recanted or the declarant and whether State, See Morant v. 68 Conn. the statement. reaffirmed denied, cert. 260 Conn. 93, 802 A.2d App. 137, 171, 173, have addition, other courts 796 A.2d 558 914, (2002). unavailable declarant’s fact that an concluded that the in favor of recorded militates statement was video admissibility jury can assess the declarant’s because the made the statement. time the declarant demeanor Sanchez-Lima, 161 F.3d See, e.g., United States v. fact-finding trial court’s Finally, the 1998). Cir. (9th trustwor purposes determining analysis for exception for hearsay a statement under thiness of applicable is penal equally interest against declarations hearsay under the residual to the determination same State, supra, 172-73 (relying exception. See Morant v. same trustworthiness factors in reviewing hearsay exception court’s under rulings declarations penal against hearsay interest and residual exception). analysis, The first prong necessity, readily present satisfied in the case. Because has invoked his fifth amendment self- privilege against incrimination, testify peti- he is not available to for the Furthermore, tioner. Bryant pro- the information that vided is not available Finally, from other source. Bryant’s statements, believed, peti- if exonerate the therefore, tioner. The petitioner, has demonstrated the necessity Bryant’s hearsay of admitting statements. require- also satisfies the second admissibility ment for under hearsay excep- the residual tion, namely, supported that it is by indicia of trust- worthiness reliability equivalent and that are to those required admissibility for hearsay under other excep- tions. Because those circumstantial guarantees of trust- worthiness that substantiate the truthfulness Bryant’s statements are set part forth detail in III C and D opinion, of this I repeat need not them here. It bears emphasis, however, that, addition the fact Bryant’s that statements are strongly corroborated, no plausible explanation ever has been why advanced as to Bryant falsely implicate would Hasbrouck Tinsley in the victim’s Indeed, murder.57 the majority correctly 57 majority suggests Bryant might story that have a fabricated about Tinsley outgrowth Hasbrouck and as an of his offer to assist inMills development screenplay regarding essence, of a the victim’s murder. In majority specter Bryant’s raises the that desire to become involved in that undertaking strong was Tinsley, so that he lied Mills about Hasbrouck and repeated imaginary story, and then his and detailed with considerable embel lishment, others, including petitioner’s investigator, to several Colucci. part opinion, I nothing As discuss in III G of3 this there is the record support Bryant any particular participat an inference that interest in ing screenplay assisting good friend, in the aside from Mills. Because majority’s purely speculative hypothesis facts, has no foundation hardly plausible explanation why Bryant falsely it can be deemed a for would repeatedly report responsible that his two former classmates were tragic the victim’s brutal and death. Bryant nothing personally gain “had that

observes indicates forward,” and the record by coming forward, he did was reluctant to come Bryant although convinced, on the basis solely he so because consti petitioner’s conviction knew, he that the what nothing Furthermore, there is injustice. grave tuted a credibility. casts doubt on in the record that a however, law reflect, The record does prominent family who, from graduate school Colucci, owned his own busi his interview with time of addition, with four children.58 and was married ness to Colucci was statement Bryant’s lengthy because be at a new trial will recorded, the fact finder video Bryant’s demeanor, temperament evaluate able to is highly signifi It also the statement. gave affect as scene of the evidence found at the physical cant the victim’s particular, the two hairs found on crime, in Finally, events. support Bryant’s version body, friend, Mills, an old and trusted Biyant first confided in Bryant’s failure to come found, and, as the trial court readily by his reasonable explainable sooner is forward being have resulted in his doing so would fear foregoing For all the in the victim’s murder. suspect properly could have found reasons, the trial court admissible under the would be in no hearsay rule because exception to residual constituted an abuse a have ruling event would such of discretion.59 58 opinion. part III D of this See commentary § of Code of Evidence to 8-9 the Connecticut 59 Inote that the position

provides a that comes on whether statement 8-9 takes no “[§] hearsay exception satisfy the never enumerated in Code fails to a close but exception. the Connecticut courts be under residual theless can admitted although definitively problem, some cases the ‘near miss’ not addressed have exception applying practice to of the residual to the would seem sanction commentary. explained, 8-9, As I have the § Evid. misses.” Conn. Code near purview exception the Bryant the residual to falls within the of evidence by equivalent hearsay supported guarantees of trustworthi “is rule because it reliability under to other evidence admitted that are essential ness and quotation hearsay (Internal exceptions marks omit to rule.” traditional Merriam, supra, principled I see no reason State ted.) v. 264 Conn. 633. It apparent, therefore, properly is that the trial court concluded that the evidence would be admissi- follow, ble at a new trial. For the reasons that the trial required court was to consider that evidence context of the trial evidence. original

G Biyant The Evidence the Shabazz Credibility

Minimum Threshold its finding that the Notwithstanding sufficiently trustworthy was to be at a admissible new trial, the trial court further concluded that the evidence sufficiently purposes believable for of test adopted by this court in State, supra, Shabazz v. 811, Conn. to warrant a Although pur- second trial. apply to the test porting mandated under Shabazz for petition for analyzing trial, a a new the trial court never newly Biyant considered the discovered evidence in light of the original evidence, presumably because, in the court’s view, statements were not credi- ble to enough require that second level review.60 I why requirement a statement that satisfies that should be excluded from exception solely admission under residual because it comes close to being hearsay exception. Indeed, contrary admissible under another a con- clusion, is, equivalent one that bars admission of a statement that is exception, trustworthiness to that aof statement that falls within another might right present well run afoul of a defendant’s constitutional to a defense. See, e.g., Cerreta, 251, 260-61, v. (2002) State 260 Conn. 796 A.2d 1176 (“The require[s] federal constitution that criminal defendants be afforded meaningful opportunity present complete a to . defense. . . The sixth right compulsory process right amendment to includes to offer the testimony witnesses, compel attendance, necessary, and to their if [and] plain present right defense, right present terms the prosecution’s jury defendant’s version of facts as well so ” may omitted; quotation that it decide where the truth lies. internal [Citations omitted.]); Washington Texas, 14, 19, marks see v. also 388 U.S. 87 S. Ct. present (1967) (right 18 L. Ed. 2d 1019 defense criminal case is process “a law”). fundamental element due strength evidence, trial court did comment on the the state’s however, analysis in connection its concerning claim testimony Gregory testimony witnesses whose contradicted Coleman’s Although that the acknowledging had confessed to him. the limited impeachment witness, value of one such the trial court nevertheless con- with the trial court that statements

disagree sufficiently require a review of that credible were not of the trial evidence. original evidence in the context Bryant the evidence I because particular, believe trustworthy against as declarations admissible specific circum- penal interest, evidence, that under necessarily the minimum case, satisfied stances of this comprises first credibility prong threshold failure Thus, test.61 the trial court’s part the two Shabazz in newly discovered evidence the context view the criminal adduced at of the evidence fully Moreover, explain I more improper. trial was respect to with hereinafter, findings the trial court’s Bryant admissibility findings evidence and its credibility of that evidence are irrec- respect to the conflict, irretrievably taints oncilably problem in ultimate analysis under Shabazz and its the court’s both is not warranted. that a new trial determination pre- my noting, of these issues begin I discussion many peti- new involving in cases trial liminarily, that, evidence, that ex- newly discovered tions based acquittal testimony lead an on retrial” when that that “would not cluded presented strong guilt trial of the evidence “considered view part opinion, (Emphasis added.) I the reasons set forth in IV this For strength disagree of the state’s with the trial court’s characterization may on its view that the To that the trial court have relied case. the extent concluding “strong” that the evidence does state’s case was stating doing so, trial, expressly that it was a new albeit without warrant view, seriously misplaced provide was, my and would such reliance reversing ruling. independent trial court’s an basis was admissi court concluded that the Because penal hearsay exception against interest to the ble under the declaration analysis. exception rule, following Because the trial I refer to that properly was admissible under have found that that evidence court could admissibility exception, however, hearsay and because the residual exception requires be no less that evidence to the evidence under excep trustworthy be to admissible under the and reliable than it would be analysis interest, applies penal against follows tion for declarations latter. to the former as well as prove dence will to be or inherently so incredible unworthy unnecessary belief that it will be for the it in presented court consider the evidence light In original at the trial. most such the trial cases, judge, will generally opportunity who have had to observe testimony the in-court proffering witness newly discovered will evidence, be able assess that witness’ on veracity conduct, the basis of the witness’ Indeed, demeanor and attitude on stand. “[t]he ... obliged credibility court is to make such a deter [any mination ... on the basis live testi such] mony.” State, supra, Adams v. 842. If, Conn.

basis that assessment, reasonably the court con cludes the witness is so lacking credibility that simply he or she would be by not believed a second there jury, is no reason for the court to consider the testimony witness’ in the context of the original trial newly evidence. cases involving discovered evidence is proffered testimony live through such —in circumstances, the court is unable to assess the witness’ credibility on the basis of his or her demeanor and conduct at the hearing court nevertheless reason —the may ably unworthy conclude that the new is of belief and, juiy that a consequently, second would not it, credit either because the evidence bears insufficient reliability, indicia of clearly it is because refuted undisputed other or credible or highly evidence, because it from inherently derives a source that itself untrustworthy. unreliable or newly discovered evidence at in the present issue

case does not fall into of these general categories. It that, although is true the trial court could not evaluate Bryant’s credibility firsthand, court was able to view his video-recorded interview with Thus, Colucci. unlike documentary hearsay or other testimony, unrecorded the video recording opportunity, afforded court the albeit limited by somewhat the witness’ absence from Bryant’s conduct, to assess demeanor courtroom, responded questions as he to Colucci’s

and attitude trial court’s nothing interview. There is during anywhere or else memorandum of decision any the court relied on however, suggest to that record, in in Bryant’s recording demeanor that video aspect of jury a not credit his version of concluding that would that, expressly the court states because fact, the facts. testify hearing petition at the on Bryant did not trial, a the court was unable to evaluate his for new .”62Instead, . . . the court “demeanor and manner solely objective, undisputed facts in relied on certain so in lacking its conclusion that was reaching testimony credibility evaluating his context unnecessary. In the trial evidence was original of any credibility of indication that the court’s absence Bryant’s was on conduct predicated determination opposed to the substance of recording, the video Bryant’s apparent demeanor, it is statements, bearing had no on appearance mannerisms or Thus, to the extent that the trial court’s determination.63 Bryant’s credibility would have court’s assessment of that assessment had been been entitled to deference if based, in or in on the court’s evaluation of part, whole Bryant’s his video-recorded interview during conduct “The The trial court stated in its memorandum of decision: trier fact worthy may considering whether a witness is of belief consider mind, intelligence, motive, state and manner while demeanor [witness’] missing hearing items were from this since the court on stand. These transcript presentation. given [only] . . . a was no was and video There in-person testimony.” extremely 63 I to the limited extent that the facts on which the note credibility finding reaching through its adduced trial court relied in were petition, in-person testimony hearing at the on the new trial none disputed. testimony unchallenged, testimony the truth of that is is Because subject challenge. not I reliance on it also is As discuss more the court’s fully present purposes, only opinion, issue is the text of this justify undisputed legally whether facts are sufficient to those Bryant’s original in the context court’s failure consider statements trial evidence. Colucci, there is no occasion for such deference any because the record is devoid of indication that the credibility any court’s predicated, determination was Bryant’s degree, during demeanor that interview. Furthermore, the court’s conclusion that a second jury would discredit founded on Bryant, because of his or character back- is a ground, person unworthy Indeed, of belief. there in the nothing record that he is the kind suggest person falsely who would implicate two former class- mates gruesome high profile Finally, murder. credibility entirely the court’s determination was based on its evaluation of the substance of statements viewed in light objective of the same facts that led correctly the court to conclude that those statements by reliability were marked indicia to sufficient ensure their purposes admissibility. trustworthiness for circumstances, such required court was to con- sider those statements the context of original trial evidence.

This is requirement so because of the in this state only trustworthy declarations against penal inter- may est be admitted into evidence. See Conn. Code Evid. § 8-6 As this (4). repeatedly court has emphasized, as I previously explained; part see BIII of this opinion; prerequisite this admissibility is essential requires the court to a engage in “careful examina- tion” statement its ensure trustworthiness. v. Rosado, State 218 Conn. 239, 244, 588 A.2d 1066 State (1991), v. DeFreitas, supra, 179 Conn. 451- citing 52. Consequently, a against statement penal interest will be excluded from notwithstanding that evidence — fully it would a exonerate if defendant believed —unless . . . clearly sup- tend to “circumstances [exist that] port the asserted in the (Emphasis [declaration].” facts v. DeFreitas, State added.) supra, Thus, n.9. there must exist facts that strongly corroborate state- Lopez, State supra, v. 254 Conn. 319 See,

ment. e.g., hearsay for requirement corroboration (explaining interest penal “sig- exception against statements beyond minimal corroboration” “goes nificant” quotation marks omit- internal original; [emphasis be supported the statement must words, In other ted]). “clearly indicate the state- facts corroborating Id. original.) (Emphasis trustworthiness.” ment’s interest that meets Only penal against a statement sufficiently requirements will be deemed stringent these trustworthy exception under that to be admissible a cannot be charac- hearsay rule. Because statement it reliable or trustworthy is, fact, unless as terized when, worthy it to reason that confidence,64 stands found properly the trial court has present case, in the admissible newly evidence would be discovered penal trustworthy against statements at a new trial as sufficiently compelling must have interest, court as so unreliable or reject that evidence justification considered unworthy that it need not be confidence In other original trial evidence. in the context has that a statement words, the court determined once relia- bears substantial indicia of penal interest against reasonably could bility, minimum, jury at a such need reason also it,65 strong the court would credit that same evidence is so devoid of to conclude that With- simply would not believe it. credibility jury that a is to view the reason, obligated a the court out such trial evidence. original in context of the statement the unduly sig- diminish the conclude otherwise would To and its newly of discovered evidence nificance the of the relative jury light on the potential effect Indeed, case. original of the state’s strength or weakness 64"Trustworthy” “worthy dependable . . . .” of is defined as confidence: Dictionary. synonym designated Its is Third International Webster’s New “reliable.” Id. statement, course, jury reasonably then if could not credit the Of reliability. lacking sufficient indicia of would be inadmissible as it manifestly it would be unfair for a to forgo court consid- ering trustworthy penal a against statement interest in original truly the context trial evidence a without despite sound basis for that the concluding statement, its reliability, entirely credibility. is As I lacking explain hereinafter, present trial court in the case wholly justified Bry- was not rejecting incredible trustworthy against penal ant’s statements interest. explanation, Before that providing however, it is important identify critical, related, second albeit why reason improper it was court not to Bryant consider the context of origi- nal trial evidence. This reason stems from the fact that new required upon trial is the discovery of evidence the petitioner’s if following original trial that evidence sufficiently is credible and such a nature to raise a reasonable doubt at a present second trial. In the case, newly that discovered party evidence is third culpability evidence, which, by its very nature, always is “relevant jury’s to the determination whether a reasonable State Arroyo, doubt exists as to the guilt”; defendant’s v.

supra, 610; 284 Conn. as long as that evidence “estab- lishes a direct connection between party a third . . charged Id., offense . .” 609-10. It is undisputed, course, evidence satisfies this rele- vancy requirement Bryant’s because directly statements implicate Tinsley Hasbrouck and in the victim’s murder and exonerate petitioner. Consequently, for a sec- jury ond to find the not guilty the victim’s murder, jury need be firmly not convinced that telling is the truth about Hasbrouck’s and Tin- sley’s murder; involvement in the indeed, jury need not even find likely that it more than story is truthful. Rather, jury only must find the newly evidence, discovered along with the other evidence tending case,66 to undermine the state’s gives part opinion. See of IV this

634 petitioner that the committed rise to a reasonable doubt “[p]roof juries are instructed that the offense. Because every proof precludes doubt is that beyond a reasonable except guilt and is inconsistent hypothesis reasonable other rational added; conclusion(emphasis Johnson, State v. 288 quotation omitted) internal marks jury A.2d a second 236, n.49, (2008); 951 1257 Conn. upon determining guilty find the would Bryant is reasonably telling possible it is reasonably if were to only the trial court Thus, truth. evidence jury would find determine that State, supra, Smith “utterly unworthy credence”; v. of credibility so that a is, lacking 208;67 141 Conn. rationally enough not find it credible even jury would petitioner’s guilt, doubt about the raise a reasonable peti- against the weak the state’s case no matter how tioner, reject court to proper it be for the would newly discov- reviewing without petitioner’s claim context of the the broader ered evidence Indeed, recognition it is in trial evidence. original burden demanding between the state’s relationship this petitioner’s burden in criminal cases and the proof this to a new trial that court a establishing right newly that, discovered explained considering has evidence, the court light original is that new evidence abso- must not whether determine “sufficiently” it lutely but, rather, whether credible trial. (Emphasis added.) to warrant a new credible Shabazz State, Adams v. supra, 844; 259 Conn. accord State, supra, Bryant’s state- 827. Because v. Conn. indicia of penal significant interest bore against ments explain because, hereinafter, as I trustworthiness, and justify finding a in the record nothing there is reasonably Smith, that the trial court in that case tins court concluded upon finding petition that the version for a new trial had denied he, petitioner, party, than the who claimed that rather offered third facts victim, unworthy wholly participated of belief. in the murder State, supra, 214. v. 141 Conn. Smith despite Bryant evidence, trustworthiness, its is nev- wholly in lacking credibility, ertheless the trial court’s proceed step analysis, failure to to the next of the that in is, consideration of that evidence the context of the original contrary procedure was evidence, to the Shabazz for evaluating that this in court established new trial petitions.68

The Bryant’s trial court based its determination that statements were not credible, first, on its that finding only minimally the statements were and, corroborated second, undisputed on four I facts. turn first to the court’s first reason for finding Bryant’s statements lack- ing credibility, namely, only that mini- were mally corroborated. I explained

As III part opinion, B of this a third party penal statement against interest is inadmissible unless supported by significant corroborating evidence clearly that establishes the statement’s trustworthiness. Lopez, State v. E.g., supra, 254 Conn. 319. Consequently, may a trial court not admit such statement unless it carefully determines, after examining the statement and State the surrounding DeFreitas, circumstances; v. supra, 451-52; 179 Conn. supported the statement is by “a significant level of corroboration”; v. Lopez, State supra, 254 Conn. 321; a threshold the trial court in 68 majority attempts conclusion, contending that, to avoid this because reasonably may a trial court find that a witness who is “under oath and subject credibility,” to cross-examination” lacks “even a modicum of there why present was no reason the trial court in the case could have made finding respect such explained, evidence. As I have however, present case, testify did 'not court, the trial court Bryant’s finding performance no during made recording the video ren incredible, expressly dered him Bryant’s and the court found that statements significant reliability. bore indicia of trustworthiness In such circum stances, reasonably newly the court could not have concluded that the wholly Consequently, discovered evidence was incredible. the trial court required light original to consider that evidence in trial evidence. necessarily had been met found present case identified Indeed, expressly the court petitioner. that it determined were

various facts and circumstances satisfy requirement. Notwithstanding sufficient to concluded that the trial court thereafter finding, this therefore, and, “not were credible” statements corrobo- by jury, believed a because would not be “[t]he Bryant’s claim is minimal” and testi- ration for “[t]he any is absent corroboration.” mony genuine way first finding, is the trial court’s simply There no that trustworthy are is, Bryant’s statements that that rather supported by significant, than because are facts, can be reconciled minimal, corroborating is, that those same statements its that finding, second them are supporting the facts are not credible because corroborative. and not genuinely minimal analysis is critical. Unless flaw in the trial court’s This Bryant’s correctly concluded that state- the trial court trustworthy sufficiently to be admissible— ments were entitled to make that the trial court was determination its corroboration only predicate finding significant if Bryant’s would be inad- was statements also correct — no missible, consequently, there would be reason and, analyze petitioner’s claim under for the court even to however, correctly court Because, the trial Shabazz. sufficiently were Bryant’s that statements concluded hearsay excep- admissible under the corroborated be interest, the court penal tion for declarations against the first required test, to the Shabazz proceed was decide whether of which mandates that the court prong satisfy credibility a minimum threshold. the statements an component A of that determination was eval- crucial Bryant’s statements were to which uation the extent hearsay dictates that a corroborated; common sense supported indeed, any statement —that is statement — necessarily will by corroborating evidence significant than a statement that lacks be far more credible real improperly corroboration. Because trial court relied its statements were not finding flatly corroborated —a finding contradicted its ear- lier respect determination with to the very same state- ments very and the same corroborative evidence —its analysis fundamentally flawed, and, its therefore, clearly conclusion is incorrect. analytical

The trial court’s error is compounded the fact as I have explained, party a third statement against penal interest is found be admissible— words, sufficiently in other one is corroborated trustworthy be deemed will be enough credible —also credibility to surmount the minimum Shabazz threshold of sufficiently the absence strong evi- countervailing justify contrary dence to conclusion. This so because, as I also have explained, under Shabazz, newly discovered fully evidence need not be credible believable; or it rather, only need be sufficiently credi- give ble to rise to a reasonable doubt that did otherwise rejecting not exist. In the Bryant’s evidence supporting already statements —evidence that the trial court had found, quite properly, to be of strongly corroborative those statements —the trial improperly court failed give due weight to that evidence for purpose the whether determining petitioner had satisfied the minimum credibility threshold under Shabazz. More- over, although the court identified certain other evi- dence in its view, supported the conclusion that Bryant’s statements were so in credibility lacking that they failed to meet even that low threshold,69 the court’s express purported reliance on the lack of corroborating 69 hereinafter, For Hie properly reasons set forth even if the trial court corroborating had considered the facts and circumstances in connection analysis Shabazz, with its under the other evidence on which trial court reasonably Bryant’s or finding relied could have relied that statements credibility inadequate did not meet the minimum threshold under Shabazz is support finding.

638 in a analysis, court’s resulting skewed the evidence70 credibility princi- that is unfaithful to the determination Consequently, the trial court’s ples underlying Shabazz. statements, Bryant’s notwithstanding conclusion that first of Sha- trustworthiness, prong fail under the their flaws the trial court’s cannot stand.71 These bazz, analysis sufficient reason reverse the are alone judgment. court’s

3 claim without consider- dismissing case, of the state’s the trial strength the nature and ing facts that none the victim’s court also relied any “any recollection of association closest friends had Tin- Bryant, Hasbrouck and between [the victim] Bryant did not forward with his version sley,” that come many witnesses years, that none of the of the facts “any recall hearing who at the new trial testified companions in Belle seeing ever importance is that reliance to the court’s decision reflected The repeated to the absence of corroboration. the court’s reference majority finding Although acknowledges of the trial court Bryant’s genuine “appears to fall lack corroboration statements penal interest”; against the standard for admission of statement short of majority opinion; majority it states that “need footnote major admissibility . . determination” because of the examine . the court’s ity’s properly trial court determined “that conclusion probably persuade would result had failed to it that statements] majority’s attempt . .” Id. to avoid at a new trial. . in a different verdict problem findings unavailing. created the trial court’s inconsistent Bryant’s finding that the trial court’s that statements are To the extent proper one, majority determined, it has necessar uncorroborated is concluding ily its in that those follows that the trial court abused discretion trustworthy therefore, admissible, and, that would be statements are only trustworthy party law, because, explained, I settled third as have under only penal admissible, against are those statements interest and statements may trustworthy. significantly E.g., corroborated be deemed State that are 319; Bryant, supra, Thus, Lopes, supra, 202 State v. Conn. 700. v. Conn. majority’s finding endorsement of the trial court’s that statements inexorably to the conclusion that the trial court lack corroboration leads sufficiently concluding in statements were abused its discretion trustworthy reason, majority For whatever elects not to be admissible. acknowledge that unavoidable fact. claim night murder,” Haven on the of the and “[t]he Tinsley style’ that Hasbrouck and went ‘caveman [was] by the reasons that supported the evidence.” For justify these facts are the trial follow, insufficient Bryant’s trustworthy to consider state- court’s failure against penal origi- ments interest in the context nal trial evidence as the second of Shabazz prong requires. respect

With to the first reason that the trial court it advances, is not at all that none of the surprising any victim’s closest friends had recollection of Has- Tinsley thirty years brouck and after the murder Bryant because never suggested any the existence of relationship victim, hand, between the on the one him, Tinsley, other, Hasbrouck and on the such that likely that association would have made much an impression, all, if contrary, the victim. To the Bryant indicated Hasbrouck, despite his fixation victim, on the was too approach insecure even to her. Bryant only himself knew the victim through acquaintance people who lived in her neighbor- hood, he and the victim never attended school together. Moreover, at the time of her death, victim had resided in only year. Greenwich for one In sum, there nothing the record to indicate either that Hasbrouck’s interest the victim was anything but or, one-sided more importantly, Hasbrouck, Tinsley Bryant spent any ever amount of significant time prior with the victim fact, to her murder.72 In appears it previously indicated, As I stated in Ms video-recorded interview may with Colucci that Hasbrouck first have seen the victim at an annual Walker, According street festival m Greenwich. to Neal the festival was newspaper attended the whole town. An article a Greenwich that was published September, 1975, 12,000 stated that “more than residents took part Party.” Party Young, in the fourth annual Block B. “Block Proves Success,” Time, September 22, 1975, p. Massive Greenwich 1. The other Tinsley two events that claims Hasbrouck and attended and that the victim also attended were two local dances. Tinsley generally were

quite clear Hasbrouck except people Haven those unknown Belle namely, Byrne they spent time, some actually whom had both Has- Notably, Walker. Walker remembers is not and, Byrne Tinsley although well brouck Byrne Tinsley and Hasbrouck recall testify, alive to relatively limited contact well in view of the surprisingly years thirty ago. had him more than had with court’s that the finding I turn next to the trial the consider- cannot credited because of be elapsed before he came forward. able time acquired his “Although Bryant court The trial stated: days offense, he, of the as a trained information within quarter for over kept it to himself one lawyer, anonym- On he insisted century. finally disclosing, [on] only rather, it voluntarily; did not come forward ity. He of this [Kennedy] when . . Mills informed happened . has explained, Bryant As previously I information.” for- very coming in his reason for not been consistent his mother feared that namely, that he and ward, liability his involvement subject criminal for could be murder. Tinsley on of the night with Hasbrouck and suffi- Bryant’s statements are Indeed, in finding render ciently trustworthy so as to them admissible “At the the trial court found: penal interest, his against . . . a fourteen in 1975 was time of the murder infor- suddenly was faced with year old black male who clearly admission, against mation his own .... penal interest that there Bryant’s knowledge . . . “Combined with murder, his reluctance no statute of limitations I no reason story is can discern to tell his reasonable.” apply to a determina- why the same rationale should test that Bryant’s credibility purposes of the tion adopted in Shabazz. this court aspect majority particular to bolster this seeks reason analysis by hypothesizing trial court’s why Bryant did not come forward with his version of years Specifi- facts until after the victim’s murder. cally, the majority speculates Bryant fabricated Tinsley’s Hasbrouck’s and involvement the murder simply hopes in the being involved the sale of a screenplay. majority’s theory purely conjec- is indeed, attempt the trial court itself did not tural — any ascribe this or Bryant other motive to —and majority theory is incorrect that the asserting finds support in majority’s the evidence. On the contrary, postulation rests on a mischaracterization of the facts concerning screenplay as those facts were related by Mills, the screenplay’s author, whose rendition of the facts makes it perfectly Bryant clear that nothing all to do with the screenplay, and never sought to have do anything it, after he read it and informed Mills of Hasbrouck’s and Tinsley’s involvement in the murder. See opinion. footnote 17 of this Moreover, the record is perfectly Bryant clear that went to great lengths any to avoid publicity or respect attention with to his knowledge about the events on the night murder, assiduously and he resisted and all efforts by Mills and persuade Walker to him to come forward and to speak to the authorities. I Finally, previously explained, Bryant consistently expressed wholly under- standable reasons for not wanting story make his public, including that, by the fact doing so, he might placed have himself in jeopardy of becoming subject or even a target police investigation into the victim’s murder.

It is worth noting, moreover, that, when Colucci Bryant asked whether, by coming forward, he was seek- ing “the limelight,” Bryant reminded Colucci that he had not come forward “I’m willingly, stating: not inter- ested in any publicity. I don’t want to be involved in this at all. I’m not interested in fifteen minutes or fifteen years of fame. I’m interested in preservation my continued, however, that he knew

family . . . .” jail and that Has- person is for this” wrong that “the be time for this Tinsley serving “should brouck or [mur- Bryant why should When Colucci asked der].” no Bryant responded: “There is reason him, believe story to tell. I was me. All I have you believe further all stated: parties.” there. I knew have that have been described you suspects “And when in Belle Haven and by people having other [as been] prosecutors following and not police following up not . . They kind of . up, you [wary].73 it of makes sort And just family in on that one beamed [the Skakels]. eye unfortunately for had bull’s petitioner], [they] [the they had, they that were on him. Based the evidence may He be But he’s not guilty. able convict [him]. he’s . . . but not this. guilty things, guilty of a lot jury. why But, you know, judge I’m not his So [or] know was believe me? I was there. I who you should atmosphere People what was. still there. I know on in Greenwich going don’t understand what of drinking There a lot of a lot drugs, the time. [were] you coming And had outsiders underage minors. [d] mix you things in that volatile. And those together, were . . . supervision something’s no going and there is I responsible? . And I feel Yes and no. happen. . . do I come responsible feel need to forth [such] that, Bryant petitioner’s arrest, referring to fact after the he had convey police about authorized Mills and Crawford to information Tinsley Bryant already provided himself to Mills Hasbrouck and Garr, investigator, although he and Crawford. the state’s lead testified had, given petitioner’s fact, that information in advance of been up Indeed, although trial, on it. Mills honored criminal he never followed prosecuting request not to his name to the authorities reveal authorities, apparently defense, prosecuting but to the Mills did tell the only defense, was African-American. Because one other School with there African-American attended Brunswick because fifty Bryant’s class, it would been were no than students have more extremely easy Bryant’s identity have ascertained and then for state to prior him criminal trial. For whatever to have interviewed reason, however, to do the state elected not so. my give anybody goad doing I statement. didn’t into My anything. judgment mean, mistake is not—I I sat story [petitioner’s during on this the whole time way, criminal] trial, because there was no there was way thought petitioner] get no [I] [the ever would way.”74 explanation convicted. No Thus, the that the majority why Bryant might advances as to have been motivated to come forward with his information about completely lacking support. the murder is in factual I sum, see no disbelieve, reason to or even to Bryant’s explanation refusing doubt, for to come for- Although certainly praise ward sooner. deserves no failing to make himself available to the state and to timely in a much more manner, the fact reject that he did not do so is insufficient reason to out-of-hand his version of the facts. respect

With to the trial court’s next reason for dis- Bryant, crediting agree reasonably I do that the court Bryant’s credibility by concluded that is undermined seeing the fact that no one recalls him, or Hasbrouck Tinsley, night or in Belle Haven on the of the murder, though Bryant seeing people even recalls several there night. agree, that I do not however, that this renders may Bryant his version of the facts incredible. It be that telling is not the whole truth about the murder because of a desire to minimize his own involvement in the noteworthy that, It is Colucci, also in his video-recorded interview with “ Bryant candidly acknowledged petitioner. Bryant that he like” the [does not] explained, however, that, “just because I don’t him like doesn’t mean he should be tape-recorded incarcerated” for a crime he did not commit. In a telephone Kennedy, Bryant possible conversation with alluded to one of the why get along, suggesting may reasons he and the did not that it Bryant petitioner] have been an issue of race. states: is . “[The innocent. . . very loving caring person, I very am not a petitioner’s] or Ibut feel bad for [the anybody. situation I my because wouldn’t wish that on . . . And he is not enemy. petitioner], you I don’t dislike [the have to understand that. It was situation, only being kind of a living difficult the black kid in Greenwich couple years. I, you imagine, easy. for a So can it wasn’t It wasn’t the worst thing world, easy.” in the but it wasn’t may embellishing, to it. He also be leading up

events unintentionally, of bis mem- intentionally or some either saw, may conflating whom he or he be ories regarding of with memories of other visits night memories that part IV explain I detail greater to Belle Haven. As not be first witness would opinion, this or no recollection, to have a mistaken recol- this case more all, respect at to events that occurred lection ago.75 than three decades many people were outside know, moreover,

We of the victim’s murder but night Belle Haven on the police. example, never For were identified at Pugh, who the state called as witness Andrew testified sometime petitioner’s trial, criminal p.m., up ended behind the Skakels’ house before 8 . or kids . . neighborhood with “ten twelve examples memory many Although there of witnesses with similar are Jacqueline Wetenhall, problems, is who was one of the one such witness evening for closest friends and was with the victim much of on victim’s petition trial, hearing night a new of the At the on the murder. seeing Bryant no testified for the state she had recollection Wetenhall Tinsley. having night asked or of ever met Hasbrouck or When whether being the Greenwich street festival where claims she recalled time, responded for the first Wetenhall that she Hasbrouck saw victim memory copy diary, having A victim’s attended the event. of the had no attending however, about event with Weten reveals that the victim wrote hall, recounting she and Wetenhall walked home after festival and slept course, Of if Wetenhall cannot that she then at Wetenhall’s house. hardly expected attending herself, can the event she be remem remember person memory lapse who Another who suffered a ber others attended. Dorothy Moxley, mother, who at the the victim’s testified dogs barking she criminal trial that she could not recall whether had heard day though police night on murder even she told victim’s following barking, notwithstanding had the murder that she heard such played very significant part determining barking in of the had a that the time Moxley Dorothy also of the death. could not remember the time victim’s expected daughter night on the what time she her home of murder. state, closing during argument that the criminal I note inability petitioner’s family trial, members of focused on the some night similar details about the murder evidence of remember Specifically, simply argued the state that it was unbelievable their deceit. light night about would not remember such details painful shocking and of the that occurred at that time. nature crime causing a ruckus” with “shaving paper cream and toilet . . . .” identify was not asked Pugh children, these however, and there is no police indication that the ever identified them. Indeed, there is considerable evidence that groups of children congregated places various in the neighborhood throughout night. One of the children, Coomaraswamy-Falkenstein, Maria testified at the hearing petition on the for a new trial that she large group” people observed “a near the Skakels’ split residence and that the would group up and reas- semble within the neighborhood throughout night. Charles Morganti, special police officer who was on duty in Belle Haven on the saw night murder, group comprised of at least five or six “young teenag- ers” in and property early around the Skakels’ in the evening and then later on. Because of the darkness, however, identify any he was not able to of them. Evi- dence adduced at petition on the hearing for a new trial indicated that there were no street in Belle lights Haven, thereby making especially it difficult to see and identify people at night.

Indeed, the fact that no one remembers seeing Bryant, Hasbrouck Tinsley very Belle Haven well could be attributable both to the darkness and to the cold. According police records, temperatures on the night of the murder anywhere were thirty-five between forty-five degrees Fahrenheit; anyone out, who was therefore, likely was up. covered Furthermore, according Morganti, the group of teenagers that he saw near the property Skakels’ “scattered” when he approached them. When asked whether he was able to identify any of them, Morganti responded: “There was no light that area. It totally pitch black. There way is no I could anyone have recognized over there.” Steven Hartig, another Belle resident, Haven saw a group of teenagers near the property Skakels’ while he was out walking but claims not to have recognized was Finally, there also substantial

of them. that petitioner’s criminal trial some presented at the and alcohol that consuming drugs were teenagers ample to believe that short, there is reason night. of the night out in Belle Haven on people were identified, been either because murder who never have they did want them, to see because it was too dark drugs of inattention due to to be seen or reasons necessarily to no reason exclude and alcohol. There is Tinsley that category Hasbrouck and from Bryant, persons.76 Skakel, Julie note, addition,

I friend, her close Shakespeare, and Andrea sister, person past of a run kitchen observed the silhouette approximately the the Skakels’ house at window of was in a car in the sitting same that the victim time driveway Byrne, lx, Helen Thomas Skakel Skakels’ with later, time as Julie Skakel petitioner. and A short Shakespeare home, was into car to drive her getting driveway figure she another dart across observed run woods. position in a and into the Shake- crouched footsteps person second but speare heard the darkness, him. of the neither Julie did not see Because had sufficient with their hood make him or her moreover, like the however, namely, those assess reliably Morganti on the too dark to see as ‘a that Bryant, crowd, particularly fairly lily-white community.’ would not be during outside night average majority himself repeatedly teenaged the three were dressed for the cold weather familiarity the extent at least who also is fourteen or anyone states that more Morganti, child next door murder, and, apprehended years recognizable, not in an one to which a African-American, fifteen African-American was acknowledged preceding the Bryant, night, ” working therefore, area that The witness to for their pranks. community to the Skakels at the time year irrespective Hasbrouck particularly person’s olds who would have blended in Belle Haven for murder. in his it was regularly cannot or its residents family race described whom the of skin color. We know, testimony, on mischief seeking More Tinsley be or lived in visited presumed nationality importantly, majority it to ensure that “did not look Belle one witness night, simply the murder be able neighbor first time that he refers, Haven would when into Shakespeare provide Skakel nor able to a descrip- tion of it person or to determine whether was the person same whom seen run past had the kitchen newly Bryant light window. In discovered evi- dence, implausible it is not that the Skakel figures Julie and Shakespeare had observed the Ska- prowling about property shortly kels’ the victim before was killed were those of Tinsley, Hasbrouck and both of whom could have Byrne stalked victim and waited for to return. Indeed, according Ix, Byrne appeared the street, alone, as she and the victim were to the Skakels’ walking residence p.m. police around 9:10 Ix told the that she approximately left the Skakels’ house fifteen minutes later because had to she be home a 9:30 p.m. curfew, Byrne that walked with her to her house and Ix disappeared. then Byrne assumed that went home after he left her but did not way see which he actually went.77 majority asserts that, police interviews, “[i]n

Byrne Bryant, never stated that Tinsley Hasbrouck or had been with him” night on the of the murder and that, “[sjeveral . placed witnesses . . Byrne with the victim and other friends at various that times night . ...” I with agree majority Byrne’s where- abouts on the night of the are murder relevant highly Bryant’s assessment of credibility Bryant because only claims Byrne was with him for much of but also evening Byrne was with Hasbrouck and Tinsley Bryant after Contrary left. suggestion to the majority, however, extent that there is credible documenting Byrne’s movements, it tends to support Bryant’s claims. In video- recorded Colucci, interview with states after to the going Walkers’ residence approximately at shortly murder, police an with Ix interview conducted after the way Byrne asked her she whether had seen which went after left her. responded way Ix Byrne she had not which observed went. Hasbrouck, Tinsley went to p.m., he,

6:30 or 6:40 beer neighbor the home of the Walkers’ took some They met with refrigerator. up from that then neighbor’s proceeded them to walk around Byrne, and the four of pranks. places neighborhood playing at behind the Skakels’ house group the meadow Bryant never indicates that p.m. between and 8:45 8:30 Byrne so, presumably, has he was group, left Bryant departed for the train station them until Ix, up Byrne met approximately p.m. According 9:15 approxi- about at right time, with the and Ix this victim Ix to mately walking as the victim and were p.m., 9:10 petition the At the on the hearing Skakels’ house. Byrne had trial, sought to establish that new the state by part of a statement night introducing been with Ix all day the on the after the police that Ix had to given statement, up she In Ix indicates that met murder. that victim, the Byrne “shortly up after” with meeting with course of further exami- p.m. sometime around the intro- however, of the counsel Ix, nation portion indicating of that 1975 statement duced another Ix stay but, with and the victim Byrne that did not get police home to Ix told rather, go eggs. left them to really the Byrne left, she and victim “never that, after he two appeared hours later.78 again” saw until [him] body discovered, victim’s was Detective Theo hours after the Several police department Ix, who dore Brosko the Greenwich interviewed J. of the “left the Mouakad residence and while related that she and victim [residence, process walking Drive the on Otter Rock [Skakels’] [the] [Byrne] .... met arriving the at three them then walked to residence [Skakels’] “[T]he p.m.” about 9:10 day by detective, Byrne the a different how- was interviewed next When too, he, Ix ever, had at the Mouakad residence with he indicated that been p.m. day later, one 9:10 In another interview the victim until about yet detective, namely, Byrne story however, a different told a different cook, Jones, person Willie the Skakels’ was that husband he approximately p.m. at as was car 9:05 Jones saw “dart” front Jones’ Byrne’s statements, driveway pulling Walsh Lane. least of his on out places police, he himself at two conflict insofar as memorialized Byrne, however, Ix at or the same time. Unlike different locations around Byrne police very to the was clear consistent her statements Coomaraswamy-Falkenstein testified at the hearing petition for a new 8 and between about p.m. 8:30 on the was at the night murder, she family, house of the Mouakad which lived down the Drive, street from Skakels with on Otter Rock victim children, and some other and that neighborhood Byrne she did not recall being group. is, therefore, Byrne’s

There no firm accounting period for the whereabouts two hour corresponding Bryant Byrne frame general time claims with him, Tinsley. Byrne’s Hasbrouck and sud- Indeed, appearance den Bryant around the time that claims to have left for the train plausible station offers a highly explanation as to where might have been most of Byrne If had evening. gone get his house to eggs, as lx police told that he done, bumped into the way, as along claims, that would explain why lx never saw Byrne again until much later evening. Indeed, given Byrne simply showed up alone while victim and lx walking were to the residence, Skakels’ it is not farfetched to believe that Tinsley Byrne Hasbrouck and try sent to isolate to the victim or away to draw her from lx. I explain part As in IV of this opinion, much of the evidence that was used to petitioner convict the required jury the draw pre- to cisely this manner of In any event, Byrne’s inference. pivotal are Bryant’s whereabouts in terms of assessing credibility, and the fact that his for most whereabouts the remain evening Bryant’s unaccounted for supports version of the facts.79 early up evening had in again left her the and met with her victim and the walking in the two street about hours later victim as the and lx were to the Skakels’ residence. 2003, Kennedy telephoned Byrne’s sister, Daryl 79 Inote Fleuren, in verify attempt Bryant Kennedy in an given to the information that had concerning Byrne. Kennedy Fleuren told that she did not know much about by the murder “because and out [she] married of the house then and family] and her weren’t [she allowed to talk about it.” She remembered

being by parents porch Byrne told her that her was on the father front when p.m. night murder, returned home at 9:30 on the of the her and that mother the trial court Finally, perhaps importantly, and most for a expressly petition at the on the found, hearing Bryant [pre- that that trial, new “witnesses confirm[ed] present that viously indicated he had] [had been] of the murder.” Because night Belle Haven on the Bryant witnesses, namely, Barbara testimony of those Bry- Dick, corroborates strongly and Esme Ingledew Haven with Hasbrouck ant’s claim that he was Belle information, Byrne p.m. however, at around 10 This based had seen bed by what had been told others about as it is recollection of she on Fleuren’s nearly thirty yeans earlier, suspect there is because events that had occurred Byrne’s parents nothing that were else in record even to indicate Byrne’s by Indeed, parents night. were never interviewed home that Byrne’s brother, Byrne’s parents, accompanied police, rather than and older by police immediately Byrne after murder. interviewed when was any mother to see if she had recollection of Fleuren also checked her Kennedy Tinsley, reported Bryant, that and Fleuren back Hasbrouck or boys further, “[Byrne] and, never met or seen the three that her mother had however, observation, latter is belied never had black friends.” This they Tinsley acknowledged Bryant fact both and that and that Hasbrouck they Tinsley Byrne Greenwich, went to and both had socialized with when Bryant they Byrne’s on several occasions. and recalled that had been home friends, namely, part opinion. Indeed, D of one of best See III this Byrne, Walker, directly street and both lived across the from they Byrne together explained often. Walker socialized that Although relied on or even there is no indication court activities, account of her deceased brother’s credited Fleuren’s second-hand Kennedy regarding her notwithstanding that Fleuren’s statements trial, likely parents’ alleged at a new would be inadmissible memories they support statements, asserting majority places great weight on those credibility “Bryant’s determination because contradict the trial court’s parties evening.” principal events account of the location Byrne’s Specifically, majority “Significantly, sister stated states: [Fleuren] porch tape-recorded on the when interview that father been in a [her] p.m., Byrne told she and that mother had her that came home at 9:SO [her] very p.m. night. Thus, point Byrne at the had seen in his bed murdered, victim was a murder to which claims the time when Byrne witness, Byrne’s mother him in his bed.” bore saw claims previously indicated, however, original.) in (Emphasis I the thousands As transcripts police pages into and interview entered 652 Bryant Barbara stated Udvardy and Harkness.80

told her had returned home that she then recalled that son at out, Belle it was still light night from Haven while Bryant Barbara also investigators. as she had told no sure if she or someone longer indicated that she was the New York Times apartment brought in her had else attention; simply she remembered article to her son’s shortly it in the house after the that was discussed said to her girl visiting and that a who had murder had you you your black butt home son, glad “aren’t you certainly would have been accused this.” because telling also not recall her son that Hasbrouck She did Tinsley and he distance and were should dangerous it them, she conceded that was although himself from that she had had such conversation with “possible” Bryant that she had no inde- her son. Barbara stressed Tinsley of whether Hasbrouck and pendent knowledge victim, killed the and that she remembered them well young Finally, men.81 Barbara mannered and attractive deposition, Bryant Udvardy Barbara stated that and Harkness At her initially her, had the hell out of and that she “accosted” [her]” “[s]cared they [prescription] drugs” when was “full of conducted their unannounced however, they Udvardy testified, and Harkness introduced interview. Bryant proceeding her to before and informed that it themselves Barbara away voluntary any she walk time. was a interview and that could One Bryant investigators, Udvardy, that, opinion, testified in his Barbara deposition during appeared vague” “more and “out of it” the video-recorded Moreover, Bryant Barbara than when encountered her on street. Udvardy deposition that, Harkness, she at her when met with and conceded voluntarily telephone given number in event that had them her she questions her. to ask had additional attempts majority significance Barbara The minimize Harkness, Udvardy emphasizing deposition, and in her statements gave night an of her on the of the murder she account son’s whereabouts surrounding that was different from the one that she and of other events majority opinion. Udvardy given and Harkness. See footnote 35 the deposition majority Barbara in her The also underscores that claimed heavily Udvardy approached when have been medicated Harkness Bryant consistently remains, however, that Barbara has her. Id. fact Udvardy Harkness, subsequently acknowledged, her first to day deposition testimony, Bryant was in Haven Belle on the murder; changed simply she time that she claims that he returned home. story regard only noteworthy changed her in this after It is that she Bryant noted publicity that the surrounding her son’s disclosures had made her “ill” and that she was taking several medications.

Dick, Bryant whom lived while he was attending Brunswick School, also Bryant’s corroborated claim of having been in Belle Haven on the night of the murder. Dick testified at the on the hearing petition new trial that, 1970s, her husband was chairman of the department languages at Brunswick School. Through her work as the executive director of the Educational Film Library Association, Dick had met Barbara Bryant, producer films; part children’s see III A of this opinion; and the two women became In good friends. 1972, Dick and her husband Bryant invited to live with them in Greenwich so that he could attend Brunswick School. Dick Bryant testified that lived with them for years, three until the summer of 1975, at which time he left to reside with his mother Manhattan. According Dick, shortly after the murder, Bryant visited her home and disclosed to her that he had been in Belle Haven night on the the murder. Dick also Bryant testified that veiy was upset after trial and told her that the had been “wrongly convicted,” although explain did not why he believed that to be the Thus, case. this testimony, like the evi- dence that Bryant Barbara provided, seriously under- any mines Biyant’s contention that story merely recent fabrication. It also belies the majority’s specula- tive suggestion Bryant may have been prompted to tell his story because of a desire to collaborate with Mills on Mills’ screenplay. Indeed, the testimony of Bar- Bryant bara testimony that the trial court Dick— privilege against had asserted his self-incrimination at his own deposition. light of all the including relevant facts and Barbara circumstances, Bryant’s own statements and deposition it is clear both testimony, that she disap- willingness of her son’s proved to come forward with information about the victim’s murder and that she wished to downplay involve- any possible ment that he have had with may to it. respect possibility negates expressly credited — motive he about his whereabouts reason or murder because it defies night on the of the victim’s credulity fourteen, age to think story for a not to be revealed the seeds false planting quarter century of a later. until more than one court concluded that evi- Finally, the trial also concerning statements support dence did not of attack that Hasbrouck Tin- style” the “caveman contemplated because was no sley allegedly “[t]here by the hair.” The being dragged evidence of the victim why posits second reason Hasbrouck’s and majority unsupported by is Tinsley’s planned “caveman” assault evidence, namely, the sexual nature alleged of semen by corroborated existence assault not provides these body. on Neither of reasons the victim’s Bryant’s statements rejecting reasonable basis credibility. the victim was lacking First, dragged as least feet— seventy-eight a considerable distance —at body simply part not clear what of her her and it is move that distance. or used to her assailant assailants by was not her dragged if it that she Even assumed Tinsley however, it is clear that Hasbrouck hair, style” to generally the term “caveman describe used do, is, abduct, to to subdue they what intended that sexually. presumably to their victim and then assault likely when Moreover, struggled because victim presume by it is reasonable to assailants, confronted her accomplish their Tinsley sought that Hasbrouck and way detection, they whatever avoiding goal, including likely under the circum- was most to succeed thought involved stances, irrespective approach of whether by part or other the victim her hair some dragging body. of her respect majority’s

With to the contention vic- support not the conclusion evidence does attempted of a assault or an subject tim was the sexual assault, majority simply sexual mistaken. The pants pulled victim was found with her and underwear her Furthermore, down below knees. the state elicited testimony Lee, criminal trial from criminalist, former chief state that semen could have wiped away been from the as body, victim’s well testimony Wayne II, from Harold Carver the state’s chief examiner, parts medical body certain of the victim’s presence were not tested for the light semen. In of the efforts of the victim’s assailant or assailants pants remove her it underwear, appears highly likely purpose that the against assault the victim nature; indeed, was sexual in it is difficult to discern any other reason or motive for the shocking brutal and very popular attack year fifteen old victim.82 Thus, the record of the proceedings respect petition for a new trial does support the trial court’s failure to consider statements —state- ments that properly the court found were admissible because were accompanied by cir- corroborating clearly cumstances their indicating trustworthiness —in the context of the evidence adduced and arguments the petitioner’s raised at the criminal Indeed, trial. to the extent rejected Bryant’s that the trial court statements credibility in lacking because only were mini- mally corroborated, directly that conclusion contra- the dicts court’s threshold the finding that statements 82 discrediting Bryant, further As reason for the trial court also notes that Bryant’s “[mjissing anything concerning from breaking statement is the of [golf] stabbing contrary, the club the or of the victim.” On the it is clear Bryant’s from statements he that knew that the victim had been beaten and by golf clubs; fact, stabbed to death one or more in the trial court observed Bryant’s explanation possession golf that that he had been in of clubs belonging family night to the Skakel on the of the murder a “indicate[s] guilt” Bryant’s explain away consciousness of that reflects the “[e]fforts possibility fingerprints might weapon that his be the found on murder or golf nearby.” another club corroborated, fully sup- finding a that strongly

were pre- Under the circumstances by the evidence. ported reliability indicia of therefore, significant the sented, sufficient, as a matter Bryant’s statements are that mark credibility threshold the minimum law, of to surmount that Shabazz, consideration of that, triggers under the newly original the context of discovered evidence turn to an examination of evidence.831 therefore trial trial evidence.84 original the expressly Although that it had identified the trial court Bryant’s petitioner’s considering rejecting claim without on in relied evidence, majority original trial identifies in the context of the statements which, majority asserts, reason on court certain other evidence support ably that conclusion. None of that additional could have relied to Bryant’s materially however, evidence, less rehable or statements renders rely, and, trustworthy on which the trial court did more than the evidence majority simply over, has no to which the refers some of the evidence majority Bryant’s credibility. example, bearing makes much of For on he, day murder, Bryant’s of the victim’s Hasbrouck on the statement Tinsley up” golf (Internal “picked had clubs at the Skakels’ residence. Bry majority that, according quotation omitted.) then asserts marks yard, though ant, golf the Skakels’ even he obtained clubs from those yard testimony lying golf clubs were seen around indicates that no other golf frequently day. undisputed Although clubs were left outside it is Bryant’s home, he review of statement indicates that the Skakels’ careful property, perhaps golf on the clubs from somewhere Skakels’ obtained they generally event, porch, were where located. from inside back contrary assertion, nothing portion majority’s there is in that of to the portion Bryant’s speaks golf in which about the clubs—a statement supported expressly trial court concluded was statement any way contradicts the statements of evidence—that corroborative property lying golf were to be around the Skakels’ others that no dubs known testimony fact, Bryant’s day is consistent with the of the murder. In family police findings investigators owned numerous sets that the Skakel golf in different locations their house. clubs that were stored strength previously noted, evaluation of the As I a trial court’s original deference at the trial is entitled to evidence adduced original present case, preside when, the trial court did not over that as in the circumstances, perform because, trial, is no able to this court less such original function, the record of the trial. which entails review of novo, strength we case is de are the state’s Because our review the petitioner’s by hampered claim the fact that the in resolution of the not our Indeed, to that the review. the extent court failed to undertake that trial areview, conclusory engage I that its character in believe trial court did such by “strong” supported original is not ization of the state’s case Furthermore, although parties opinion. 60 this See footnote record.

IV STATE’S CASE AGAINST THE PETITIONER petitioner sufficiency Because the not did raise the evidence claim in his appeal direct to this court following conviction, his criminal this is the first time that this court has had occasion to strength consider the of the state’s case.85See v. generally Skakel, supra, State my 276 Conn. 639-40. theOn basis of review of the evidence, I state’s conclude that it was strong not required the draw jury every possible inference favor of theory the state’s of the case.86 Although least four placed petitioner twenty witnesses away minutes from the scene the murder when it occurred, argued the state every that each and one of those witnesses was lying. support The evidence to this argument, was however, best, especially weak at when light testimony viewed that was used to convict petitioner, which entirely consisted almost of equiv- by ocal admissions and one dubious con- fession that he allegedly had made while was a School, student at Elan an alcohol and drug rehabilita- testimony relating concerning adduced certain to the claim newly Bryant evidence, testimony unchallenged and, discovered there- fore, give any credibility by findings did rise to the trial court. See opinion. Consequently, impediment footnote of this there is no to resolv- ing prong pro- stage this second and final of the Shabazz test at this ceedings. 85 addition, rejected original appeal, hi petition in that this court all of the impropriety which, meritorious, required er’s claims of if would us have engage analysis. course, analysis, necessary, error harmless Of if required strength would have us to consider the of the state’s evidence against petitioner. by twenty years The evidence also was tainted more than of sensational coverage, istic books, media which included two true crime a novel petitioner’s family television utterly mini-series which the was vilified as lacking family cover-up pounded in moral conscience. The theme of a prosecution supported only by very questionable at trial but testimony Littleton, long-standing of Kenneth whose mental illness and delu thought patterns sional family caused him to believe that the Skakel tried to him Kennedy family. kill and that he himself awas member 658 Poland, facility located

tion for troubled adolescents physical no evidence con- Moreover, there was Maine. eyewitnesses. no to the crime and petitioner the necting by relatively adduced weak evidence light newly comparative strength of the state and the I evidence, am con- party culpability third discovered minimum, evidence, at an absolute that that new vinced whether doubt about gives rise to reasonable per- I therefore am petitioner had murdered the victim. Bryant evi- jury if had considered the suaded it trial evidence that original with the together dence very likely it the verdict would consider, did different. have been

A Up Leading Events to Murder many of which are set forth following facts, opinion direct rejecting this court’s id., 639-53; are relevant to the appeal; generally see a new evidence warrants of whether issue 1975, the victim evening 30, of October trial. On of Greenwich home in the Belle Haven section left her p.m. neighbor- to “hack around” the sometime around Shortly p.m., lx. after 7 friend, with her Helen hood if house to see and lx went the Skakels’ victim brother, Thomas Skakel (Tommy and his children, how- home. All of the Skakel were Skakel), Jr., 19, Skakel, age 18, Julie ever, Skakel, age Rushton 16, the Skakel, 17, Skakel, age peti- John Tommy age Skakel, 12, Stephen 15, Skakel, age David tioner, age Littleton, age Kenneth 9, tutor, with their age together cousin, age 17, and Julie Ska- 23, Temen,87 their James having were Shakespeare, friend, age kel’s Andrea Skakel, Rushton nearby Belle Haven Club. dinner at James At the time of Terrien now uses the name Dowdle. James murder, him as Terrien last name Terrien. I refer to victim’s used the opinion. throughout this Sr., children, away the father of the Skakel on a trip and would not return until the following evening.88 All of teenagers drinking night, quite the were some heavily. There was indicating also that some marijuana. them had been The evidence smoking virtually further established that was parental there no supervision at the Skakel household and that Rushton Sr., Skakel, was an The managed alcoholic. house was by an of personnel, cook, assortment a a including housekeeper, tutor, a and the children’s gardener Lit- tleton.89

At 9 approximately p.m., the and guests Skakels their Shortly thereafter, returned home from dinner. at approximately lx p.m., Geoffrey 9:10 the victim, Byrne arrived at the residence and were let inside petitioner. the four immediately The of them went out- side to to in family parked listen music car that was driveway. in the The victim sat in Byrne the front seat while lx sat the backseat. approximately At p.m., Tommy joined 9:15 them, Skakel into front climbing seat with the victim and the petitioner.90 minutes, After a few Skakel, Rushton Jr., John Skakel and Temen came out and told them that they needed to use the car to take Temen back home, approximately which was twenty away minutes planned and where all “Monty Python’s watch Flying Circus,” a show, p.m. television 10 peti- tioner asked the if victim she wanted to go them, Reynolds Skakel, Skakel, Anne Sr., the wife of Rushton and mother of children, passed away the Skakel had in 1973. evening This was the first spending night that Littleton be would residence, only recently accepted position at the Skakel as he tutor. diary she, petitioner, 90 The Tommy victim’s entries revealed that teenagers Skakel and several neighborhood other from Belle Haven enjoyed friendship, socializing together a close often at each other’s homes usually parked and in a driveway. motor home that was in the Skakels’ Tommy There developed also was evidence victim and Skakel had body a crush on discovered, each other. When the victim’s was the shoe wearing she was had the name “Tom” it. written on According home. go had to

but said that she she police in the immediate Ix gave statements that Tommy Skakel, Byrne murder, she, aftermath of the Skakel, car and Rushton got victim out and the the car with got and Terrien into Jr., Skakel, John got when she out police told the petitioner. Ix p.m. meet her 9:30 curfew went home to car, she wheel” to the felt like “third but also because she ain behaving who were Tommy Skakel, victim and she was Ix told the victim that manner. When flirtatious responded going that she also the victim leaving, left by Byrne, Ix, accompanied in a minutes. home few the car and walked Tommy and the victim at Skakel in the direction the rear of the Skakels’ house toward property the Skakels’ Ix’ residence abutted of Ix’ house. the directly across the street from Lane, but Walsh faced driveway standing victim was the victim’s house. The her the last time Ix saw Tommy Skakel alone p.m. in at 9:30 approximately Ix arrived home alive. with her curfew. accordance murder, police interviewed after the Two weeks exactly and what she again Ix her to recall and asked resi- after Skakels’ arriving the victim had done victim, Byrne that, initially, she, the responded Ix dence. to music outside to listen petitioner gone and the had Tommy by joined were time, in a After a short car. Jr., Skakel, Skakel, Rushton by and then John Skakel “everybody Ix police When the asked if and Terrien. Skakel, Jr., Rushton said . . the car” when . out of got “ ot home, responded, take Terrien she he needed it to [n] vic- [Skakel], and and Tom[my] me, everyone. Just [the responded, anyone out, else Ix got When asked if tim].” trial, criminal Ix testi- At the [Byrne].” “and Skakel, Jr., John car Rushton carrying fied that was pulling Terrien out Skakel, petitioner Byrne started to leave. driveway as she body The victim’s at approximately discovered p.m. 31, 12:30 on under a on October tree her family’s property. discovery the hours following police the body, Greenwich canvassed the Belle anyone looking Haven for who neighborhood might approximately have been the night p.m., out before. At Lunney Detective James went Skakels’ home all except and interviewed of the Skakel children Skakel, Rushton Jr., their activities the regarding night before and was informed at that time that Rushton Skakel, Jr., John Skakel all had gone to Terrien’s home and Tommy Skakel was the last person family in the see the victim before she left to return home.

Julie Skakel was police interviewed again approximately two weeks after the murder. At that time, she stated at approximately p.m. 9:30 eve- ning of murder, after her brothers had left for Ter- rien’s residence, she Shakespeare left take home. Both Shakespeare and Julie peti- Skakel testified at the tioner’s criminal trial that the car going Terrien’s home already departed by the time that she and Shakespeare left because Julie Skakel’s car was the only car in driveway.91 the When got outside, Julie Skakel realized that she had forgotten keys her car and Shakespeare asked to run back inside to them. The get front door was so locked, Shakespeare the door- rang bell. Tommy Skakel, just who had entered the house through the side door where he had been to talking the victim, Shakespeare met gave the front door and her keys. that, the Julie Skakel testified as she sat the car waiting Shakespeare, for she saw the victim standing driveway in the Tommy and Skakel at the front door 91Shakespeare, respect petition a crucial for the witness state to the defense, only testify person alibi er’s was the to that the did not go pressed explain with his to brothers Terrien’s house. When to the basis testimony, however, Shakespeare simply for her stated that it was her “impression.” and Shake- Shakespeare. Both Julie Skakel

speaking to police the speare reported that, leaving to the before person house, they had seen an unidentified Skakels’ told the Julie Skakel also past run the kitchen window. Shakespeare to waiting in the car for police while person of a keys, the she saw silhouette return with her She stated the figure in front of house. running driveway position ran in a crouched across adjacent driveway. into woods disappeared was, see who it she later was too dark to Although it assumed, without real basis police that she told brothers, proceeded it one of her so, that was doing . . . .” “Michael, Although back here yell, come she told person, see the second Shakespeare did not driveway footsteps on the she had heard police keys. get back to house walking she was Shake- dropping home from Skakel returned Julie p.m. Upon approximately exiting 9:50 speare off at past carrying what ran Julie Skakel car, person another in his She could not object be an hands. appeared to darkness. identify however, because person, of likeli- to a high degree The evidence established was killed between 9:35 and that the victim hood mother, painting the victim’s was p.m. Dorothy Moxley, when, bedroom of her home sometime the master “commo- p.m., and 10 she heard loud between 9:30 house, where the yard, tion” in the side Dorothy Moxley later discovered. body victim’s was of “excited that the commotion consisted police told was thought and what she voices,” barking incessant so strange commotion was her scream. The daughter’s went doing she was stopped that she what dark, how- to look Because it so window outside. and turned on an anything to see ever, she was unable seconds, however, few she porch light. After a outside she was afraid that whoever turned the off because light the porch the victim’s bike on might was there see

663 Dorothy away Moxley put steal it. then her paint, showered and went downstairs to watch television.

John Moxley, year the victim’s seventeen old brother, arrived approximately p.m. home at and informed mother, Dorothy Moxley, that the victim had not come home that she was “a little worried Moxley about her.” John told his mother that it was mischief the victim night, probably was out having fun and that she would be home After soon. watching upstairs John evening news, Moxley went to bed, Dorothy Moxley while fell asleep on the sofa front approximately television. At a.m., Dorothy 1:30 Moxley up woke and realized victim that the still was point, home. At that she son woke her and asked him to look go out and for her. She also began calling victim’s friends see if might someone know where she was. approximately At 3:45 she a.m., called the police Greenwich to report the victim missing. police According records, Dorothy Moxley stated that her had been daughter p.m.” due home “at 9:30 and “had never been late like this before.”

The strongest evidence of the time of death was offered the victim’s Ix. through friend, She testified that, after at arriving p.m., home 9:30 telephoned couple she of friends. one of the During calls, approximately 9:45 p.m., Shepherd her Australian to bark inces- began santly.92 barking became so loud and annoying that put she telephone down the receiver and went outside to bring the in. When dog there, she she got could see the dog at the of her end “frozen” driveway, by the edge of the road, barking of the Moxleys’ direction driveway. Ix testified that she seen never had her dog in such an state and agitated that he was “scared” and barking “violently.” Ix further testified although days murder, police dog began Three after Ix told that the to bark approximately p.m. between 10:15 him, she always came to her when called dog

the up while, gave she occasion, this he refused. After lx, dog back inside. the barked According and went minutes, until the continuously twenty-five for about the housekeeper dog went out and forced family’s come inside. mother, the addition to victim’s neighbors,

Other p.m. David Skakel reported lx’ at around hearing dog pro- was so “distressed and barking testified that the opened a out of bed and window longed” got that he on. His overlooked going to see what was bedroom property and with views of both lx’ family’s backyard darkness, he Moxleys’ property. the Because the tell from the direc- dog, not see the but could could the standing the was near barking dog tion of the At A. driveway. trial, Joseph road the of lx’ at end the Jachimc2yk, forensic who assisted pathologist the placed the early investigation, on in the time police p.m. approximately 10 on the basis of death at stomach, rigor victim’s the fact that contents of the body was had set in the time her discovered mortis edge of lx’ at the barking dog and the frantic crime scene. days following murder, and weeks children, as well as their

police interviewed Skakel sister, Georgeann Ter- cousins, Terrien Terrien’s rien, Skakel, Jr., Rushton John on several occasions. police they and and James Terrien all told Skakel approxi- house at petitioner had left the Skakels’ watch mately p.m. go 9:30 to the Terrien residence to reported All of them “Monty Python’s Circus.” Flying house, they saw the victim leaving were Tommy Skakel. After the driveway in the standing Skakel, Jr., and John p.m., show at 10:30 Rushton ended twenty stayed for about Skakel at Terrien residence arriv- Haven, and then returned home to Belle minutes Terrien told p.m. Georgeann 11:15 ing approximately police Skakel, when Rushton that she home Jr., Skakel, John and James Terrien arrived there watch At television. Skakel,

criminal trial, Jr., Skakel, Rushton John James Georgeann gave Terrien and Terrien the same account night on their activities the murder that police Specifically, given had in 1975. Rushton Ska- Jr., John kel, Skakel and James Terrien all testified that they, petitioner, along gone with the Terrien p.m. residence at around 9:30 to watch television and Skakel, Jr., that Rushton John Skakel and the approximately p.m. had returned home at 11:15

B Relationship Between the Crime Scene

Evidence and the Evidence Photographs property of the Skakels’ and the Mox- leys’ densely property landscape, reveal a wooded hedges running along diagonal trees, tall and bushes path that the victim would have to walk taken home leaving physical after the Skakels’ residence. The evi- dence at the crime scene indicated that the victim ini- tially top driveway, just was assaulted near the of her Moxleys’ driveway she after crossed Walsh Lane. The shaped, was horseshoe with two entrances, one to the oppo- east and one to the west. The west entrance was property. site the southeast comer ofthe Skakels’ Inside driveway large the horseshoe awas lawn that extended from the street toward the comer northwest of the Moxleys’ house. house was not centered on the driveway but, rather, was situated to the southeast driveway, it, or to the left of the horseshoe if one were standing facing According in the street the house.93 layout driveway house, Given the of the in relation to if the victim walking straight backyard had been in a line from Skakels’ to her front door, it would have been more convenient direct walk across leg driveway. lawn rather than to down walk the western of the Blood and pieces golf bloodstained aof broken were club found the lawn within driveway. aspect the horseshoe The state maintained at trial that no of the west entrance

police reports, at the intersection driveway Lane, “approximately Walsh to the [four] compressed a area roadway, grass feet south presence body.”94 of a On existed, prior indicating driveway, in the of the horseshoe the lawn middle found; Toney golf Penna six iron club was bloodstained to the belonged later was determined to have the club petitioner’s mother.95 Three feet west of the club golf inches patch of blood that measured twelve G. the Greenwich Keegan, circumference. Thomas originally investigation, charge detective was killed knocked victim either or believed Joseph A. In a letter to unconscious this location. police Jachimczyk, a forensic who aided the pathologist investigation, “Approxi- in initial wrote: Keegan the an mately point eight west of the of attack eight feet shaft golf section of stainless steel tubular club inch piece metal, as well as broken found, was and this the Keegan, against the in this area. Thomas G. the assault victim occurred concluded, however, charge original investigation, that in of the detective area, dragged began in and that the victim was then or the assault this driveway, approximately more west carried 100feet to a secluded area of the opposite house, from where she was to death. direction the beaten the dragged seventy-eight large apparently to a was another feet The victim then body Keegan’s pine tree, ultimately was under which her found. reconstruc- significant posits dragged it the is insofar as that the victim was tion of crime and, explain larger hereinafter, or a area as I raises the carried over much posed petitioner’s question, party criminal which neither or addressed at the petitioner’s slight trial, of the stature would have as whether someone carrying Keegan capable dragging or victim the been the distance doubt, however, be believed that she had been moved. There can no Tinsley easily teenagers size could have done so. two the of Hasbrouck just along large compression photograph off road A of the rather the Moxleys’driveway was admitted into evidence at the criminal appears petition grass hearing a new trial. The and at the for by persons body perhaps by kneeling a or two to have been flattened either perfectly standing by appearance, or On the basis of its it side side. persons by person lying plausible compression was or that the made way made her across street from the Skakels’ wait for victim she by ground yard, if she had been forced or even the victim herself by her or assailants. that location assailant routinely police golf clubs were left about The determined scattered property. Skakels’ head, end of the club were both indicated back intentionally broken, apparently bending apparently forth. The victim was then or semi- carried dragged fifty-eight for distance of feet to the west of driveway.” crime scene According Keegan’s notes, path the leaves from the lawn inside through driveway horseshoe west side of drive- way “was . ...” A blood was obvious small amount of driveway path. found on the surface of the along apparently “The victim was then dragged carried or feet” fifty point patches another to a where “two [more] approximately] [eighteen] blood inches circum- ference” were found. “the victim Keegan concluded that repeatedly was assaulted at this location” and sustained “at least stab four wounds from the broken end of the [golf] multiple club and blows to the head.” eight patches

“About feet from two [the blood] another seven inch section tubular stainless steel golf club shaft was found, apparently intentionally again broken. victim The dragged then for a distance of approximately feet and seventy-eight placed under [a] pine . tree . . [leaving] a clear and visible drag-pattern measuring five-[eighths] thirteen and wide. inches victim suffered one blow there where is a [nonfatal] clear impression of the club golf head on her left arm and shoulder. All other blows fatal. A... black [were] abrasion the on of her right side nose indicates that her nose came into contact with the driveway.” Finally, point attack, some the during pants the victim’s and pulled underwear were down below her knees. According Lee, to a forensic scientist who recon structed crime the for the years state sixteen after the murder,96 splatter blood inside the victim’s underwear pants and pants indicated that her and underwear were photographs Lee that his testified was reconstruction based on scene, police reports, report autopsy any crime the evidence that was collected at the crime scene. when or all of the blows were inflicted.

down some the however, Lee’s reconstruction of respects, certain from that of Lee Keegan’s.97 crime significantly differed area had occurred the theorized that the assault found, blood were on larger patches the two where the driveway, that, during side of the the west club from the force one assault, golf the broke piece of the shaft blows, sending the the head and they the air where approximately through 100 feet to in middle of the horse- were discovered on the lawn driveway. was Lee, blood that According shoe patch inch driveway found and the twelve of the horseshoe drive- blood on the lawn the middle from the way deposited golf in those locations were theorized, by.98 flew Lee also club head shaft closing during argument, and the state maintained ran the wooded assault, after initial the victim into Specifically, state’s attor- driveway. area west of the first ney jury that to the argued “[the victim] driveway .... She by somewhere assaulted we there because learned wasn’t knocked unconscious . . here to . that she was somehow able travel from and there is no trail major scene, drag blood points.” previously mentioned, As I between those two path from an “obvious” however, Keegan observed major driveway inside the lawn horseshoe on the driveway blood west of the afternoon area defense counsel did body was discovered. Because conclusions, about of his not cross-examine Lee lay Keegan for the various was called the state foundation evidence, photographs was not admitted into but he crime scene were regarding questioned by party had drawn either about the conclusions committed, which had been in which the murder had been the manner collection of evidence from the crime based on his own observations and scene itself. alternative, posited, however, on the 98 Lee in the blood also deposited by driveway there the victim if the assault could have been at that location. been initiated explained comported he never how his reconstruction with crime scene notes. Keegan’s

In light teenagers, statements that two golf clubs, responsible both of whom were are wielding the murder, Keegan’s description victim’s theory crime on the scene the manner in which victim’s murder occurred would merit serious consider ation at a trial.99As I previously, new discussed Keegan believed the victim was first assaulted on the lawn driveway, the middle the horseshoe where a golf intentionally club broke or was broken. The victim then or partially dragged was carried to the more secluded driveway, wooded area west the where attack resumed. Keegan correct, If and a or golf club broke intentionally was broken on the lawn in the middle driveway, horseshoe there would have to have been more golf than one club in the because, involved attack according to Lee’s reconstruction and crime Keegan’s scene notes, multiple victim sustained blunt force injuries in the area west of the driveway, where large patches two of blood were found. Furthermore, on the basis the nature of the drag marks, John Solomon, the state’s chief investigator the 1980s and early 1990s, concluded that the perpetrator was disori ented, if unfamiliar, not location of the neigh borhood houses in relation to each another. autopsy report

The is in way no inconsistent with two theory and, assailant in some respects, appears to petitioner presumably challenge The did not the state’s reconstruction possibility suggest or otherwise that the murder had been committed by people by two rather than a lone assailant because his alibi defense dependent theory. Indeed, petitioner on either even if the had asserted people murder, that the evidence indicated that two were involved likely claim, the state notwithstanding would have maintained such pointed people. the evidence still as one of those Bryant evidence, however, places testimony important Keegan’s in an new light supports party culpability predicated defense, because it third newly Bryant evidence, discovered victim was murdered Tinsley. Hasbrouck and Wayne II, Carver chief it. Harold state’s

support crimi- who testified at medical examiner findings original autopsy nal regarding sustained at least eight that the victim had report, stated injuries All injuries to her head. of those blunt force the head by been caused having consistent with were injuries were inflicted to the Three such of a club. golf to the three were inflicted head, of the victim’s front to the left side head and two were inflicted back of her Carver, blows, according to of her head. Each of the likely have fatal, and the victim would could have been relatively quickly. The victim also lost consciousness to her blunt force trauma nose,100 sustained a broken the neck four stab wounds to left shoulder and at least by caused head, having with been consistent asked Carver of a club. When state golf broken shaft injuries inflicted, were explain the order which was on the predicated that his answer emphasized only club had been used “assumption” golf one only “[provided] one explained that, He murder. injuries all of the blunt force involved,” club golf [was] been before would have to have inflicted to the head as away from the club’s shaft. Just the head broke did cross-examine Lee, however, the defense with queried he was not Carver, and, consequently, front, fatal blows to the many potentially so whether head were consistent and back the victim’s side whether theory of a lone assailant or state’s by likely been inflicted two as or more to have were different directions. assailants, clubs from wielding golf conclusion that the Furthermore, despite Keegan’s found, the club head attack was initiated where peti- nor was asked whether neither Lee Carver bigger was no than the all indications tioner, who, Lee to con face led both Carver and embedded in victim’s Gravel point, had come into contact with the victim’s nose clude some driveway roadway. surface of or victim; see opinion; footnote 45 of this would have been physically capable of carrying or the victim’s dragging body from the driveway lawn inside the horseshoe the second assault area approximately away. 100 feet Tinsley, Hasbrouck and however, each of whom described as weighing pounds at least 200 and standing approximately six feet, two inches in height, clearly would have capable been of doing so.

Indeed, my view, the most troubling aspect of the theory state’s of the crime stems from the fact that it predicated is assumption that the victim fled to the more secluded area west of the driveway, where major assault Thus, occurred. the state maintained during closing argument that, after assault, the initial the victim “somehow” away was able to get from her killer and run to that location. It is counterintuitive, however, that victim, seizing opportunity on the flee, opted would have to run in a direction that would leave her more vulnerable and isolated than already she was. As between the two possible escape routes, one being wooded area driveway west of the and the other being safety of her house to the southeast, common sense strongly suggests that she would have tried to run house, toward her which would have taken her across the lawn in between the horseshoe driveway, directly over the area where Keegan theorized that the assault had begun. If that case, were the and the victim had been subdued or knocked unconscious at that loca- tion, as Keegan believed that been, she had then some- one would have had to have carried or dragged body her more than 100 feet to the other side of the driveway. It is hard to imagine, and the experts state’s were not asked to explain, how the could have man- aged such a feat in the dark, carrying only the victim but also a golf pieces club or thereof in his hands.

Finally, as I indicated previously, two hairs that were recovered from the sheet that was wrap used to provide addi- where it discovered body

victim’s was of the statements. One tional corroboration lab as was the FBI forensic crime hairs identified subsequent characteristics,” Negroid “possessing possessed hair that it Asian on the other revealed testing Bryant are of African- Hasbrouck and characteristics. is Tinsley, according Bryant, American descent possibly Asian of mixed descent. origin, race

C History of Investigation history investigation this a short of the point, At necessary understanding original a fuller my conclusion that evidence and to trustworthy particularly strong. nor particularly neither numerous leads in the police The Greenwich followed In years and the murder. weeks, following months Tommy police charging an arrest warrant prepared the based, part, misleading murder on Skakel with the police day the on the given that he to statements person and he was the last murder, after the because warrant, The to the victim alive. arrest known have seen police then focused however, was executed. never night tutor whose first suspicions Littleton, their on the the house was night in residence at the Skakels’ bizarre erratic behavior in the murder. Littleton’s and murder, alleg- certain years following months and that he had made to his edly incriminating statements con- multiple law, wife and and run-ins others, investigator through Solomon, vinced state’s chief early that Littleton was the killer. Solomon 1990s, alcoholic, responsi- was Littleton, also an believed blud- unsolved murders involving ble for series of places in and young women around geoning deaths vic- or before and after the Littleton had lived visited Skakel, however, Littleton Tommy tim’s murder. Like never was charged, and the case went for many cold years. early 1990s, several events caused the revival investigation eventually led to the

arrest and conviction. In 1991, a rumor circulated that Kennedy William Smith, who then facing was sexual assault charges Florida, was in Belle Haven on the night of the murder. Like the Skakels, Smith was related family Kennedy Robert F. and Ethel Skakel Kennedy. Although there was no truth rumor, to the it public renewed interest the case put pressure police to solve In 1993, it. “A Season Purga- tory,” which was authored Dunne, Dominick published. The book was a best-selling fictionalized account of the victim’s murder in which Dunne effec- tively Tommy accused Skakel of the murder and the family entire Skakel conspiring up. cover it Because of the renewed scrutiny on his family, Rushton Skakel, Sr., private hired a investigation firm, Sutton Associates (Sutton), investigate murder with the hope of exonerating family. According to Leonard Levitt, another author who wrote about the victim’s murder, before Sutton agreed case, take the Rushton Skakel, Sr., assured Sutton pursue could investigation wherever it led, if it turned out that a member of his family had committed the crime, the family would publicly it. acknowledge part

As of its investigation, Sutton interviewed Tommy Skakel and petitioner. the Both Tommy Skakel petitioner the they disclosed that had not been truthful with police the in 1975. Tommy Skakel told Sutton that, after Julie Skakel had left to take Shake- speare home, he went back spent outside and another twenty minutes with the victim in his backyard, where they in engaged heavy petting and mutual masturbation. petitioner The told investigators that, after he returned home from the Terrien residence, he, too, went back in the window a

out, midnight, peep to around way home, Lane. On the who lived on Walsh woman a house, victim’s climbed into tree stopped he at the The petitioner and masturbated. to look in her window a story Hoffman, ghost Richard later told the same briefly collaborated in petitioner writer whom the with life. Hoffman petitioner’s on about a book petitioner’s regarding criminal trial testified at tape petitioner, which he had with the conversations him Hoffman, petitioner told According recorded. boys in neighborhood, ... all the other that, “like also had a crush on he victim].” [had] [the by thirteen, developed he had age disclosed problem. serious alcohol employee

In an of Sutton stole the firm’s files 1994, profiles, and case, including suspect detailed on 26,1995, and Dunne. On November them to Levitt gave part first of a four published part Levitt series peti- in which he disclosed that the newspaper articles had their stories Tommy changed tioner and Skakel of the mur- respect night to their activities that Sutton had der. Dunne later information gave Fuhrman, formerly Mark a detective obtained to Angeles police department who employed Los Simpson 1998, O.J. murder trial. Fuhr- testified at the peti- published a book which he accused the man Fuhrman’s of the victim’s murder. conclusion tioner part statements was based on the back out on the of the gone night Sutton that had mastur- murder, neighbor’s in a window and peeped yard.101 Moxleys’ a tree in the bated Levitt publication article Following Mysteries” “Unsolved the television show dedicated program aired, After the to the victim’s murder. segment key witnesses, Coleman, including Gregory Eliza Several of the state’s Shakespeare, read book testified that Fuhrman’s beth Arnold and prior testifying. or seen television shows about book police country. from tips received numerous around the who resi- people Some of them were from were fellow petitioner School alcohol dents of the at Elan (Elan), facility had petitioner rehabilitation that the drug a attended as A number of them recalled that teenager. petitioner, 1980, who Elan from 1978 to attended appeared have knowl- to had some involvement or of the victim’s edge murder.

D The Petitioner’s Statements at Elan Most if not all of the that was convict used to the petitioner consisted of allegedly statements had made at Elan and Hoffman. to According to petitioner’s trial, evidence adduced at the criminal Elan an employed extremely controversial behavior modifi- cation on program confrontation, was based humil- public iation and Of all the Elan beatings. former students who testified against petitioner, however, only one, Gregory claimed to Coleman, actually have petitioner heard the to confess the victim’s murder. Coleman contacted a television station in after tabloid watching a news show about Fuhrman’s book and after a sizeable reward in the case had been adver- People tised in Magazine. Coleman, a twenty-five bag day addict, heroin testified before the grand juiy that had investigated the murder petition- victim’s and at the probable er’s cause that he met hearing petitioner for the first time when assigned he was him “guard” Elan, following attempt escape from the school. Coleman, the first According thing that the petitioner ever said to him “I was, going am get away I .” murder; Kennedy am . . . Cole- man also stated that had told him that he had beaten a in with a girl’s golf and, head club two days later, gone body back to the and “masturbated Coleman died of a heroin overdose before [it].”

676 hear- trial, probable but his cause petitioner’s criminal read to was into evidence and testimony admitted ing money of the reward that jury that trial.102Part the at ultimately Cole- was awarded to sought Coleman had estate. man’s however, testified, Elan who

Other former students very petitioner, insisting about story different the told mur- the petitioner the never confessed to victim’s Ricci, they recalled, Joseph the executive Rather, der. as the petitioner the about Elan, often taunted director him either of commit- murder, accusing having victim’s point, did. At knowing crime or of who one ted the school, a away run from the petitioner after the had petitioner which the was convened at general meeting103 102 present Coleman, likely According Elan residents were to three former petitioner allegedly incriminating Coleman. made his statements to when the hearing petition at on the former residents testified Each those petitioner trial, however, confess never had heard the a new witness, Grubin, fact, recalled that Coleman murder. In one such Clifford witness, very good bragged being liar.” Another John about “a once question Simpson, Coleman and recalled that remembered incident guarding petitioner and while he Coleman were had turned him Simpson “just girl.” petitioner this that he killed that the admitted said confession, and, petitioner such make testified that he had heard the immediately petitioner therefore, whether he had confessed to he asked the Simpson, having petitioner, according done so. denied Coleman. The said, petitioner] just Simpson said that then to Coleman “[the turned say replied, “[w]ell, girl,” to Coleman he killed which he didn’t [the] yes no, shit-eating grin[s].” gave . . . or he one of those he didn’t answer but reaction, stated, “[w]ell, Simpson, According it was Coleman also say present no.” trial court case concluded fact that didn’t newly testimony Elan residents was not discovered of the three former because, diligence, the could have located the exercise of due defense prior petitioner’s agree with criminal trial. I the conclusion witnesses to the testimony regard, of those in this but I underscore that the trial court important petitioner extremely if the were to receive would be witnesses a new trial. 103 general meeting Elan nature of a One witness described the “ you probably meeting general the scariest word that follows: ‘[A] typical you general meeting, A which was hear were at Elan.’ would when staff, or more focused on one two attended 100 or Elan residents [peti singled violating Elan rules. . . . were out for [T]he residents who attempt subject general meeting of a as a result of his failed was the tioner] facility.” Skakel, supra, away n.12. v. State Conn. to run from was brutalized for several hours in a boxing ring All of gave front of the entire school. the witnesses similar Alice Dunn, accounts the incident. a former student, testified at the criminal trial days for three before the general meeting, had been forced to stand in the comer of the school sleep. dining any day, room without On the third he placed against wall, was the and at least 150 students him by confronted After yelling spitting his face. petitioner while, placed ring the was boxing questioned by variety Ricci about a of matters, including the According Dunn, victim’s murder. to was the this anyone first time that at Elan ever had heard the about victim’s minder. Ricci, appeared reading who to be from petitioner’s file, petitioner the the confess, tried to to get petitioner but the insisted over over that he “didn’t petitioner do it.” time Each the denied involvement the crime, put Ricci him in boxing and students ring, “pummel” would him he “physically until was . . . . . . wiped out .” The objective the general meeting petitioner was to make the family feel abandoned his so that would he think that he had no alternative but to to submit the Elan program.

According Petersen, Sarah another former Elan petitioner student, the cried “uncontrollably” during the beatings. She said that often pull Ricci “liked to [the out petitioner] the crowd at general meetings [of and] emotionally pound like, on him,” saying “we things you know did this . . . .” When Ricci get did not response that he was he seeking, put peti- would tioner in boxing spank paddle. or him ring with a Petersen testified that petitioner always any denied in the murder, but, involvement after hours of “long torture,” say he would he did just not remember him for a little while.”104Another lay them to off “get gen- student, Michael remembered Wiggins,

former pure “mayhem,” hitting as with students meetings eral they as hard could while others petitioner as . . . hard, him .” him, “hit hit him hit harder screamed always petitioner denied recalled that Wiggins victim’s murder until was beaten involvement extremely point at which he would fatigued, down and stop . . .” The would beatings “I remember . say, don’t petitioner expressed some doubt. Wig- soon as the as severely that, twenty- was so at Elan beaten gins himself body those years later, he had scars from five still beatings stop would beatings. According Wiggins, everyone as told Ricci what Ricci soon Arnold, if it not true. Elizabeth hear, wanted to even days student, Elan testified two another former boxing incident, first Ricci ring after the therapy at a group ses- tried reassure really petitioner not think that the sion that Ricci did only petitioner knew who victim, had that killed up Tommy probably covering and he was did that responded “he know” petitioner The that didn’t Skakel. anything night “didn’t remember” about and victim’s murder.105 104 by Maryland at she was enrolled Elan order of the Petersen stated that away had from home times. Even

Juvenile Court because she run several years repeatedly virgin, her, though she was fifteen old and a Ricci accused “slut,” school, general meetings being front of the entire a and at According whore.” not until she confessed that she was “a to would relent Petersen, true, though she tell Ricci that she was a even it was would stop. just he “slut” so that would [petitioner] Seigen, Elan was enrolled at with the from “Charles who petitioner’s criminal he recalled 1978 to testified that trial] [at therapy sessions, by attending group supervised or three a staff member two typically residents, during [petitioner] eight which the was attended Seigen, [petitioner] According murder. to confronted about victim’s occasions, responded annoyance. probing On to such with other sometimes however, very upset, [petitioner] he became cried and stated that did group [petitioner] stated in these not know if he had done it. also night murder, of the victim’s he was ‘blind drunk’ and sessions ” supra, ‘stumbling.’ Skakel, v. Conn. 647. State By petitioner’s all involvement accounts, the rumored identity For the victim’s murder became his Elan. end, weeks on he forced to around his sign wear brat, please that stated, spoiled neck “I am confront my . .” friend, Moxley me on the murder of Martha . . approached petitioner Dunn testified that she after the first him vic- general meeting asked about the him, tim’s murder. if it thought that, She she talked to “jar” might memory, and that she be the one might who would be him make “some get able sort just confession . . . responded .’’He that “he didn’t that know,” he had been “drinking” night and he was not in his normal state of mind. Nine months later, petitioner after the had graduated from Elan and both he and Dunn became staff members there, had dinner at a local she him restaurant, and asked if he again “really memory hap- no of what ha[d] [had] pened . . . .” When the trial presiding court over the exactly criminal asked Dunn to recall put question how she had him, responded: she “To the best of my you I it to him recollection, put like, you know, know, what about that whole thing your family and, you know, with the murder of that girl and, you Greenwich know, you, you you do know, know, you think, you what do I know, mean, do what you think happened, really, According back there.” Dunn, answered in the same way always answered, is, “I don’t know what happened, you I know. don’t it know if was Ime. don’t if know it my brother, you was I know. know don’t I because don’t I just remember anything. don’t know.” John Higgins testified on one occasion, when petitioner he the and were duty on owl” “night Elan, at which consisted of guarding dormitory door to ensure none of escaped, the students petitioner talked with him for hours. According to Higgins, petitioner told him a “about murder that he was some- in” that “he that there

how involved and remembered ... He also remem- party a on at his house.” going was golf “running some clubs” “going through bered According Higgins, peti- some woods.” through just “releasing emo- sobbing crying,” tioner “was a progression out.” “bleeding “[Tjhrough tions” he said that he didn’t know whether he did statements, may he done he didn’t know what it, it, have [that] eventually, point he came to the happened, [and that] did do he must have done it, that he [thought [that] he] it . . . .” import testimony is Higgins’ questionable, because, cross-examination, he acknowl-

however, had state’s investigator that he failed to tell the edged in the first admissions petitioner’s alleged about had had with the investi- Higgins few conversations that twenty- approximately also claimed that gator. Higgins were him and thirty people petitioner five to admissions, petitioner made his but none when at witnesses testified trial. alleged Higgins these peti- with the claimed, moreover, that his conversation had heard only tioner was the first and time that ever murder, and that he later read about about victim’s People Every it in the 1990s. other Elan Magazine witness, however, regu- that the murder was testified which topic general meetings, lar of conversation at Indeed, mandatory for all the students attend. were at crimi- Petersen, petitioner’s testified witness, one petitioner’s “personal had been the Higgins nal trial that petitioner six weeks after the overseer” for least away.106Finally, admitted that attempted Higgins to run Higgins’ capacity that, in as the “over Petersen testified and, petitioner opinion, seer,” Higgins regularly tormented the Petersen’s petitioner person in world in whom the would have the last would been “protocol” predicated explained have that Elan’s confided. Petersen also system privileges that students were rewarded on a of rewards and such offenses, making turning as not one in for the smallest such for another infractions, having properly, as more such as sexual as well serious bed Petersen, actually According Higgins if heard relations. admission, he have told Ricci it because it sort of would about make money he was aware of the reward when he came forward and that Higgins Garr advised that the $100,000.107 reward had been increased to These statements Elan the strong- constitute state’s est petitioner’s evidence of the A guilt. careful review statements, however, they reveals although may they have been sufficient to sustain a conviction, reasonably cannot be particularly pow- characterized as erful or because the convincing exclusive source of unequivocal single, admission peti- attributed probable tioner was the testimony cause hearing Coleman, who, for reasons I previously have explained, among least credible the wit- produced. Indeed, nesses that the state it is not unfair say that it would be difficult to find a witness more lacking credibility.108The other statements that petitioner made to Elan students —none of whom came many forward until years after the alleged statements were made —all equivocal very were well could product have been the of an emotionally troubled ado- lescent who had been hounded about the matter during his entire tenure at Elan.

During closing argument, attorney state’s argued forcefully petitioner’s that the statements at Elan consti- tuted powerful consciousness of guilt. The state’s attorney maintained, moreover, only way that Ricci would have known about the victim’s is if murder family had told him about improved tremendously yielded would have significant his status him, rewards for as it would have for Elan resident. student, Dorothy 107 I Rogers, note that another Elan former testified petitioner family had told her that his had sent him to Elan because might afraid were that he have killed the victim. noted, credibility As have I Coleman’s would be further undermined at a petitioner new because of three witnesses identified following testimony directly his conviction whose contradicts Coleman’s assertion that the had confessed to him. See footnote 102 of opinion. this 682 attorney

it him at Elan. The state’s they when enrolled only for the explanation also that the argued family his must have sent presence at Elan was that they he was thought guilty him there because the and, further, sending peti- the victim’s murder the the cover-up peti- would assist in tioner Elan attorney state’s asserted: Specifically, tioner’s the guilt. who was there thing every during client of Elan “One vividly . . . particular referring era recalls is Ricci he telling [petitioner] getting to file the that wasn’t a he explained why he killed boxing] ring out of until [the sign to wear a being and then forced victim], [that [the my neighbor.’ murder of says]: ‘Confront me on the he Clearly, “Where that information? get did Ricci police.109Why did Ricci have that get didn’t it from the Why [petitioner] the did Ricci confront information? only the answer, one that with that information? why [petitioner] was there lies in sense, makes why family put felt need lies in his a place, first they place. Why? Because that’s what him in that awful living to do with the killer under decided that attorney maintained: “One roof.”110The state’s also their helps together, particularly I tie all this that submit thing very [petitioner’s] ... is the subject on of Elan idea place. The defense scoffs presence at that Why cover-up. a . . such clear evidence of despite . really This not matter at Elan? [petitioner] was the trees. It is trans- genuinely forest from the seeing parent. major problem. had a [petitioner]

“Clearly, alcoholic, a substance abuser. Already was an he family. He the control Already beyond was 109 did, indeed, get from the information indicate that Ricci Police records opinion. police. 111 of this See footnote Greenwich part fact, petitioner had been sent to Elan as not true. The this was driving arising agreement drunken plea York out of serious in New of a opinion. footnote 111 this incident there. See family I doubt his was even becoming suicidal. through. aware of the turmoil he was Elan going sexual why exactly was a last drastic a resort.” resort but so attorney’s was suffi- Although argument the state’s ciently prose- rooted in evidence to a claim of defeat Skakel, supra, impropriety; cutorial see State v. theory centerpiece Conn. of the state’s 755-59; —a speculative. case against verged — Because it an so called for inference that was attenuated namely, from the father petitioner’s that the had facts — petitioner sent him to Elan he the thought because theory had killed the well victim —the falls short of Indeed, my convincing. view, the relative weakness of the very state’s case is reflected in argument by this the state’s attorney, requires which the fact finder to reject plausible other equally scenarios without to do convincing reason so.111 111Although, my it does not factor into that a conclusion new trial is required, presented hearing petition I note that evidence at on the the for contrary attorney’s that, argument a new trial reveals to the state’s at the petitioner’s police criminal that the Greenwich did not tell Ricci about murder, police were, fact, during the the Greenwich in contact Elan petitioner’s stay Moreover, police peti there. were aware that the part plea agreement arising tioner had been sent to Elan as of a out of an Windham, York, petitioner incident in New in which had been arrested operating suspect profile for his vehicle under the while influence. A petitioner Garr, investigator, prepared 1990s, state’s lead in the Scarey, police Windham, indicates that James the chief of contacted the police April, 1978, petitioner Greenwich that the informed them had pleaded guilty charges stemming March, to a number of his from arrest in According suspect profile, petitioner 1978. high to the had driven at speeds, attempted police telephone to evade and crashed his into a vehicle pole. Scarey police petitioner pleaded guilty told the Greenwich that the had charges except charge to all of driving of while under the influence plea hearing, airplane airport, after the “an at arrived the local occupied by doctor, two . . . . . . attendants and a at which time [the petitioner] hospital was handcuffed and taken to a in . . . Maine. . . . Scarey reported very family that he was familiar with the Skakel and that recently problems petitioner] causing had been numerous for his [the fam ily.” May, 1978, police petitioner the Greenwich learned that the residing According suspect profile, “[djuring phase at Elan. to the this investigation petitioner’s attorney] [the Thomas Sheridan became aware inquiries police Elan, the Greenwich made at and . . . [that subse- had] defense, evidently unimpressed with strength real case, the state’s offered no rebuttal to the state’s attorney’s only had com- argument someone who say some of the that the things mitted murder would petitioner Elan, had said at or must family been sent to Elan because believed that have the victim’s murder. The defense responsible he was per- no as to how an innocent explanation also offered emotionally particularly one as troubled son, may could convince himself that he have petitioner, stupor but had no recollec- killed someone in a drunken Indeed, during closing argument, so. doing tion jury that, counsel boasted to the because of defense case, it the weakness of the state’s not deemed expert provide call a witness an necessary single explanation for the alternative statements. have the high “The nature our defense —we didn’t fancy delivery. big jury You see the tech ... don’t key. table. low It is expert sitting our It’s somewhat you see. . . . We didn’t kids, bring me and three can memory expert. is no There is no expert. in one There no We didn’t expert, expert, nothing. this there is dog fancy you you any give theories. We didn’t a twinkie give department.” quently . . . . . . . the . . Sheridan informed contact[ed] petitioner making progress police time the was some at the at that that Elan, going months, that that was to be there for ten and Sheridan feared he petitioner relapse he that suffer a if was interviewed at time. that the would 15, 1978, that, November information Police records further indicate “[o]n escaped by petitioner] Elan. had that had from He left was received [the adjusting facility.” 16,1978, himself, On and had not been to the November petitioner petitioner’s police had been father informed the that Skakel, brother, and to Elan his older Rushton Jr. In located returned notwithstanding contrary, appears short, argument to the it that the state’s updates police given regular were about the the Greenwich Elan, they fully placement progress were of the reason and that informed attempted arrange why an he had been sent there that had Thus, very was a at Elan. there was interview with him while he resident argument attorney that or no factual basis for the the state’s Ricci little police, not learned the murder from the Greenwich or could have about petitioner’s presence explanation for the at Elan that there was no other family except that had victim. that his must have believed he killed the noted, however, defense.” Defense counsel petitioner only suspect was not the the case who incriminating years had made statements over the Littleton, petitioner, expressed like the had doubt he, on several as to too, occasions whether could have committed the Indeed, crime. it is remarkable that at people have, least three degrees, made self- varying incriminatory with respect statements to the victim’s murder, namely, Littleton, Bryant petitioner. Significantly, three, only Bryant has no known history of emotional disturbance, acting addiction or fact, out. In it precisely because is so much practically every more credible than other witness the case that I am if persuaded jury that, were consider statements together with evi- original it dence, likely would find petitioner guilty the victim’s murder.

E Theory The State’s Concerning Petitioner’s Story Masturbation During closing argument, the state’s attorney also argued that the reason the told people that he gone back outside on night of the murder and masturbated in a tree next to the victim’s house feared “his semen might day one be lab, identified a crime or even one day, someone surface might actually who had seen him the victim’s [in yard].” attorney state’s further that, by asserted early 1990s, “every criminal investigator planet totally attuned this to new miraculous tech- [DNA] nology, and, course, that would include [private the investigators] the Skakel family had hired to assist defense, them in the [namely] Sutton Associates.” According to the attorney, state’s “the word ‘masturba- tion’ . . . up come until or [did thereabouts not] . . . . You didn’t have to be flya the wall when in 1992 to understand picture came into the

[Sutton] his tale why serving up soon was bizarre the defendant friend, Pugh, in a to tree masturbation [Andrew] . Hoffman.”112 to . . later attorney about As of the state’s arguments with the was not all consis- Elan, adduced at trial the evidence attorney the of the state’s about tent with the arguments directly story, and some of the evidence masturbation Meredith, another example, it. For Michael contradicted that, in the summer of student, Elan testified former while working at the Skakels’ house he resided action petitioner against on a class lawsuit the for murder Elan. Meredith learned about the victim’s with the time summer a conversation the first the “insti- Meredith, petitioner petitioner. According to presume you “I conversation, the gated” stating and her murder. And I want know about [the victim] I am innocent of that. you know, unequivocally, that to you I to you details, want tell If are curious about me.” In the happened you what so know from course told Meredith conversation, petitioner ensuing murder, he had climbed a tree that, on the night masturbated. Meredith outside the victim’s house and first was that this was not the testified that his sense such a petitioner thing. time that the done theory jury attorney as the state’s The state’s further articulated driveway. “Looking evidence, beating again in at the started follows: certainly point pants her at that because weren’t below knees [The victim’s] fifty feet, feet, get gotten near over have five let alone a she couldn’t major And, course, only bloody scene. it took one toward that assault bloody permanently major good swing her over at assault scene render beyond help. absolutely you evidence, “This, weird masturba- review the where say story acquires significance. this is not a forensic tion It’s incorrect case, produced the forensic evidence that was case. It is a forensic produced but, rather, . .” The that wasn’t . . for the forensic evidence attorney pulled suggested have must state’s also ejaculated pants her down after killed and masturbated victim’s on her. light testimony, Meredith’s which never the state discredited, theory why state’s respect the with the petitioner claimed to have masturbated outside the vic- tim’s home on the night persuasive of murder lacked force. petitioner Because the story had recounted his years Meredith several the petitioner’s family before Sutton, many hired years before the advent DNA technology criminal investigations popularly became known, the claim petitioner state’s that the had invented the story little, any, has if weight. Thus, theory, this no less attorney’s than the state’s personnel argument by Elan had informed family been the Skakel the petitioner was involved in the victim’s murder, reflects the relative weakness of the state’s case against the petitioner.

F The Petitioner’s Alibi Defense I persuaded am that the likely would in an acquittal result at a new only trial not because by evidence adduced against state at his criminal trial not strong, also but because petitioner’s strength alibi. As I previously indicated, several witnesses, the victim’s including friend, close lx, testified that petitioner, along others, several left Belle Haven in a car at 9:30 around p.m. to togo petitioner’s the home of the Ter- cousin, rien, twenty away. minutes Because the time of death firmly was so established, the success of the state’s case rested on the ability state’s to convince jury that all of the alibi witnesses were To lying. end, this attorney state’s argued jury to the petition- that the er’s alibi was construct, invented father, practiced by its proponents main trip on a that they family had taken vacation house in Windham, York, shortly New after the victim’s murder. attorney state’s argued also family likely the “dispose to trip opportunity the an

used evidence.” stay attorney jury: to the “Let’s argued state’s

The produced. suspect. it How was it Why alibi. is so the family put ... to this together. did the Skakel do What place police decided, all over the seeing Someone the The players to the out the area. get had the sense Skakel, already gone had brother oldest [Rushton Jr.] so the first the next [Washington] D.C., thing off to players, four was ordered to take the morning, Littleton [Tommy petitioner], [Skakel], John Skakel] [the way awhile, trip the for for a short Temen, . . . out of sudden, brief, night one importance .... The of that until trip begin shape that the alibi didn’t to take return from Windham.” some time after the attorney conspir- state’s further asserted that acy just the alibi witnesses but also was not limited Thus, family. Skakel virtually included entire for that “Julie asserted, argument, example, in closing family example support group of a Skakel is the best day keep do whatever it takes to continuing to this respect With to David wraps petitioner].” on [the attorney “In with the state’s stated: tune Skakel, was brother David younger alibi witnesses [Skakel]. really any him, information came from but Not useful family. he felt a need to do his bit for the So guess I yards that, from a distance of 100 to 150 he testified beyond . . away . over a hill and night on cold way dog’s] could tell which snout trees, [lx’ [he] . . . .” barking as he was pointing itself, however, Apart trip to Windham from principal alibi witnesses petitioner’s the fact that him, presented no credible were all related to the state cover-up. pre- of a As I support theory its evidence to petitioner’s adduced at the viously indicated, evidence that all of the Skakel children criminal trial established by police who went Windham were interviewed departed police for Windham, had and the before gone were told at that time that the had Terrien, cousin, night the house Tommy murder. Indeed, interrogated Skakel was police headquarters immediately hours at following discovery body, day of the victim’s before he went appeal to Windham. In the direct to this conviction, court from his criminal he claimed that the attorney improperly argued state’s that the Skakel family gone the purpose to Windham for manu- an v. facturing Skakel, supra, alibi.113State 276 Conn. 752. We rejected claim, that “the stating evidence day adduced at trial indicated that, the the body victim’s was discovered, per- several unidentified sons, ‘suits,’ whom Littleton as described came to the Skakel residence help to take control of the situation. While were there, it was decided that Littleton [petitioner], would take the [Tommy] his brothers Ska- kel and John Skakel their . . . cousin Terrien to [and] family’s the hunting Windham. The lodge defendant’s father also testified that Littleton would not have had authority to anywhere take his children without his permission. we Accordingly, that the state’s conclude[d] [attorney’s] argument that Littleton was to directed take 113Specifically, petitioner appeal maintained on direct from his criminal support it, conviction a “without shred of evidence to the state fabri story family ‘conspiracy’ falsify cated an elaborate a about Skakel to supply petitioner]. devastating ‘cover-up’ would an alibi for This [the only conveyed guilt, gutted theme a familial verdict of it also the credibil ity argumentative thrust, appealed of all alibi witnesses in one to the jury’s wealthy outrage family thought sense of was to it able trick the police by concocting grossly egregious a false alibi. The state’s conduct was petitioner because it was deliberate and false.” The further contended that story family conspiracy evidentiary fact, support; of a ‘alibi’ no “[t]his has contrary.” support contention, the evidence was all to the of this testimony referred to Julie Skakel’s that her were brothers inter by police trip Windham, testimony viewed before the of the police family fully cooperative Greenwich officers that the Skakel investigation police from the moment the arrived at the scene on October 1975. of‘[sjomeone to Windham on the basis boys

the four out place’ improper all was not police over the seeing on reasonable inferences drawn it was founded because testimony [petitioner’s] and the from the of Littleton family only members to Moreover, because the father. [peti- proponents of the to Windham were chief go were left [petitioner’s] siblings other alibi —the tioner’s] attorney to for the state’s proper behind —it also was purpose for the trip arranged that the had been argue temporarily witnesses out these crucial placing them time to give authorities in order reach events that occurred account of the prepare unified Id., murder.” 754-55. on the night [victim’s] attorney’s argument concerning the state’s Although completely was not so alibi allegedly concocted it is evidentiary support improper, be lacking in explanation concerning abundantly clear that family allegedly manufac- manner in which the Skakel extremely weak. The alibi was petitioner’s tured criminal at the following evidence adduced attenuated the state’s factually how trial demonstrates that, attorney’s actually was. Littleton testified claim discovered, left body was he day on the victim’s to Brunswick morning go in the the Skakels’ house and a coach. he worked as a teacher School, where afternoon, he in the late Upon to the house returning “may- to be a scene of what he described encountered police were all over Littleton, cars According hem.” parked unidentified cars were street, and several driveway. that, stated when he Littleton the Skakels’ house, he was confronted ten went inside the room, Who directed living in “suits” in the fifteen men next children to Windham the him to take the Skakel stated cross-examination, Littleton further morning. On attorneys he to be whom believed suits, that the men Car- company, Great Lakes Skakel, Sr.’s, from Rushton hubbub, a great talking “were in Coiporation, bon amongst acknowledged that, themselves.” Littleton on previous occasions, that, he investigators had told when at house, “swept arrived the Skakels’ he was into a twenty attorneys vortex” of who were there to orches- “cover-up.” trate a When defense counsel Little- asked ton whose idea it was to take the Skakel children to Windham, replied: Littleton “When I into walked . living twenty up room to the . . we suits, ended a discussion. And in that we discussion, discussed the ways best to handle the situation.” The testimony of the other witnesses who were at the Skakels’ on in question house the afternoon indi- cates that Littleton’s of being swept recollection into a attorneys vortex of bordered delusional.114Lunney, the officer children, who interviewed the Skakel testi- fied that attorneys there were no at the Skakels’ house while he was there that afternoon or following day. Julie Skakel testified that, body after the victim’s was discovered, a woman in her neighborhood, who knew that her father, Rushton Skakel, Sr., away was police observed the in and going out the Skakels’ house, advised her to call her office father’s to inform them of what was on. James going McKenzie, presi- dent of Great Lakes Carbon Corporation, testified at the petitioner’s criminal he was an attorney associate at the company’s New City York office. On the afternoon of October 31,1975, approxi- mately p.m., he was called into the office of the general counsel and told that “there had been murder of a neighbor . . next to . the Skakels family basically unsupervised as the father was out of town.” McKenzie if up was asked go would “[he] previously, As I noted Littleton known was to have suffered from such Indeed, thinking. cross-examination, delusional acknowledged Littleton police, Florida, he “Kenny once told the after an arrest in that he was Kennedy, sheep Kennedy family,” a previously black of the he Kennedy told a friend that trying the Skakel and were to families “blow dosage heart out with an intravenous [his] cocaine.” family until the father arrived.” McKenzie

stay and arrived at the house took a train to Greenwich McKenzie stated that the scene p.m. approximately when he arrived “was chaotic.” he encountered a report- there were number of McKenzie, to According neighbors ers, neighbors, “some [children of] [and] . . . .” police kids in and out of the house running “I responded: he McKenzie first, When asked what did to leave, one, to number and tried press asked the kids be family, a to the asked the to bring little order keep situation, just things and I tried respectful of control.” a little more under attempt testimony, an to bolster Littleton’s attorney whether there were asked McKenzie state’s or of that nature” at the any neighbors anything “male responded he there. McKenzie got house when mostly and one woman from the there were children to maintain control trying who “was neighborhood as well.” When asked whether of the the situation “I “wearing suits,” responded, McKenzie people were certainly couple press members of the were and guess attorney it.” The but about state’s police, [that was] he and Littleton had “dis- then asked McKenzie whether safety children, anything cuss about [ed] [the] . .” . . McKenzie go where the children should conversation, although had no such responded that he he meeting Littleton, who told him that did recall day job. was his on the was the tutor and that it first cross-examination, defense counsel asked On Skakels’ whether he had been sent McKenzie family. advice to McKenzie give legal house attorney was and that responded that he criminal only purpose to the Skakels’ residence going . and wait for the “try to . . maintain a little order that, by stated father to return.” McKenzie further arrived, police already had interviewed the time he “by McKenzie, counsel asked Skakel children. Defense way, you train didn’t take the with nineteen other lawyers, you?” Great Lakes Carbon did McKenzie responded only not, attorney that he had that he was the at the house and that not given legal he had advice anyone the entire he was time there. According McKenzie, Sr., at Skakel, approxi- Rushton returned mately 9 p.m. time, At that evening. McKenzie explained Skakel, Sr., Rushton what he knew about the situation and then went home.

It is clear at point Skakel, some after Rushton Sr., home, boys returned he decided that older go the house would to Windham the day, next Satur- day, that Littleton accompany would them there. Apart from Littleton’s highly testimony, dubious how- ever, there is no evidence how or why as to decision was made. Julie Skakel testified that, during period, her brothers every went to Windham almost weekend in the fall and winter or Indeed, to hunt ski. Littleton himself testified that he had nothing observed unusual trip on the by anyone he never was asked family the Skakel participate cover-up. Certain Greenwich police officers testified that were given unfettered children, access to the Skakel as well as their home and in the property, hours following the murder, and for several thereafter, months and that the family was fully cooperative. may

It be, as the state argued trial, Rushton Skakel, Sr., sent his sons to Windham to them get away police. may from It also be that he sent them there simply to get them out of the house, for, as McKenzie stated, the murder had quite uproar caused an in the neighborhood, and some of the children, including the petitioner, extremely were fully shaken. I am per- suaded, however, that the evidence of a cover-up was sufficiently weak, and strength sufficiently alibi jury if a strong, that, were to reconsider the alibi the context of credible evidence means, the motive persons or more other had

that one murder, jury likely that to commit the opportunity and petitioner of the guilty victim’s would find the murder. required, was

Indeed, emphasis bears that the state it disprove trial, to his alibi petitioner’s at criminal the State v. See, e.g, doubt. beyond defense reasonable Butler, 619, 631, (1988) (“[a] 543 A.2d Conn. it as a relying an alibi and asserting defendant [on] jury that the charged is entitled to have the defense is subject him on to be consid- by offered that evidence with all the rest of the by jury] connection ered [the whether was ascertaining [the defendant] point if doubt on that present, and that a reasonable duty acquit At jury’s him”). peti- is the exists, it the prove trial, criminal the state undertook tioner’s was con- beyond a doubt that alibi reasonable by orchestrated trip on a to Windham and structed witnesses father, young the that the several petitioner’s immediately of the alibi support statements gave who body all discovery of the victim’s lied to following petitioner’s true whereabouts police about murder, that those witnesses continued of the night many years thereafter, to lie about that fact they as adults when perjured then themselves petitioner’s criminal trial. Evidence testified essentially nonexis- scenario, however, is support this despite notoriety Indeed, striking that, it tent. youth alibi and the relative case murder, all of those wit- the time of the witnesses at testimony, their unwavering nesses have been ever has come forward informa- single person not a has been one of them ever tion to suggest untruthful.

G Summary petitioner state’s sum, against thin case predicated primarily on statements made while a resident at At the Elan. time these state- made, ments were both the those whom impression- he made statements were young, and, cases, able in most if not all emotionally unstable, may explain why which they were enrolled at Elan. The petitioner presented credibility an defense, alibi which was the state on challenged grounds find only support in the record. each marginal Although of persons the who testified in connection with that alibi defense is related to the petitioner, no evidence ever has been adduced to demonstrate that one of them difficult Indeed, was it is to see lying. how those alibi quite who were of witnesses, young the time the murder, victim’s story could have concocted a false murder, petitioner after immediately the the placing twenty away the minutes from crime scene when the victim murdered, was and have stuck to that stoiy, deviation, Furthermore, without the decades. state the of at acknowledged signifi- existence least two other potential cant suspects, Tommy Skakel, including the person last to be seen the with victim and for whom police the had sought an arrest warrant in connection with the victim’s murder, Littleton, a violent and mentally person a unstable whose first night resident of the Skakels’ home was marked the victim’s death. In light relatively of the evidence implicating weak the petitioner the murder, victim’s as well as the long- suspects of standing existence other petitioner’s the defense, alibi it apparent is that the newly discovered that the evidence —evidence trial court itself concluded was trustworthy because it bore significant indicia reliability “sufficiently of than more credi- —is ble,” when viewed in the context of the case, state’s to the give rise to jury likelihood that second would find a reasonable doubt about whether petitioner the a new circumstances, the victim.115 such

murdered required.116 is trial my analysis “unprecedented,” majority I is that advo asserts that majority essentially of de novo review the what the characterizes as cate light findings, and I view the evidence “in the least favorable” trial court’s that majority opinion. sustaining the trial decision. Footnote 25 of the court’s are without merit. These contentions My analysis predicated of not on a de novo review the trial court’s admissibility respect findings. to the of the With threshold issue factual properly Bryant’s statements, trial exercised its I that the court conclude trustworthy concluding those are admissible as discretion in that statements penal respect against failure interest. With to the trial court’s statements evidence, original the in the context of trial consider those statements only doing so, stating for not did elaborate on its rationale court not statements, admissible, For the that I while are not credible. reasons opinion, previously I in this believe that trial court have set forth particular because, required to a review under the circum- conduct such case, Shabazz, properly applied, requires present if stances of the decision, I from the court’s memorandum of review. cannot discern light however, failed statements whether court to consider give original because court did not due consideration trial evidence truly prong test erects minirrial to the fact that the first the Shabazz credibility or, finding instead, court’s fact-based that the hurdle because the credibility met was unreasonable. If had not that low threshold reject petitioner’s proceeding claim without the court’s decision predicated prong misunderstanding on a second of the Shabazz test was Shabazz, prong then minimal burden under first may Indeed, product court’s is the of an error law. well decision majority agree does the case view of the fact that the itself be my prong the first of Shabazz is satisfied unless court conclusion that credibility. reasonably newly If, evidence lacks all finds the discovered however, Bryant’s in not consider statements the the court’s decision to that, original was based the conclusion as context of the trial evidence credibility utterly lacking matter, in so that a factual those statements were review, my unnecessary then, view, engage to in such in the court’s it was a Thus, contrary majority’s finding an to the abuse of discretion. constituted assertion, engage I a de review the trial factual do not in novo court’s findings. majority’s contention, nothing Furthermore, contrary there is in to the light opinion support I view the in the

this to the conclusion that evidence sustaining To extent that the trial court’s decision. the least favorable decision, impropriety particular, in decision to of the trial court’s its the reject prong Shabazz, product petitioner’s the the claim under the first is misunderstanding finding, a of the minimum unreasonable fact rather than of credibility threshold, why conclusion, explained is, I that I have reach that regard unsupported finding facts and in that the because the court’s Moreover, reasonably drawn therefrom. as I also have the inferences explained, cannot stand because of the court’s inconsis- that determination respect findings are the extent to which statements cor- tent with roborated. findings undisputed light and the nature In of the trial court’s factual reliability newly underlying case, this the inherent of the evidence

V RELATIONSHIP GARR AND THE OF LEVITT

AND GARR’S ALLEGED BIAS support petition trial, petitioner In a new the of his Garr, also that Frank the state’s lead investigator, claims Levitt, author, joined an in a “pact” and Leonard secret case, pact to write a book was about that motivated prove by their desire to were correct in identi- petitioner in Garr’s fying and, case, pursuing — —the person petitioner who killed the victim. The claims publication agreement this resulted the 2004 of a book, Solving Moxley entitled “Conviction: Murder,” on which Levitt Garr collaborated, and “particularly unique that reveals Garr’s bias” against petitioner family. and his petitioner further so credibility claims this bias Garr’s “undermine[d] in his . selection, investigation and use of . . witnesses already . . . dilute probative tenuous value [d] ... of the circumstantial evidence” on which peti- was tioner convicted that a new trial is warranted. The trial court concluded that the relating evidence book deal between Levitt and Garr not newly dis- covered and any event, it would have had a bearing on the outcome the petitioner’s criminal trial. I disagree the trial court newly was not As to discovered. whether that evidence would have affected the outcome of the criminal I trial, need not resolve that issue view my determination that the is entitled to it, discovered evidence state’s failure rebut and the weakness original evidence, the state’s I see no reason to remand the case to the words, hearing. particular trial court for another other under the facts presented, my view, only proper circumstances resolution of petitioner’s disagree claim is to direct a new trial. I the therefore with majority appropriate remedy weigh that the for the trial court’s failure to newly against original the discovered evidence the trial evidence is another hearing petitioner’s on the claim new for a trial. See footnote the 25 of majority opinion. Although proper remedy cases, that would be the in some foregoing reasons, proper remedy present for the it is not in the the case. newly discovered new on the basis of the however, the minirnurn, At evidence evidence. a family the and his bolsters petitioner bias toward Garr’s new is entitled to a my petitioner that the conclusion trial. May, 2001, peti- has in majority explained,

As the in discovery inspection tioner filed motion for any alia, inter disclosure of seeking, his criminal case pecuniary “a any agent state had and/or outcome development interest or other any contract, to, not limited case, including, but this which relate negotiations, or agreement, on-going . any court, . . .” The Kava- preparation book request to witnesses J., granted the limited newsky, petitioner’s trial, criminal During called the state. asked Garr on cross-examination defense counsel objected a book deal. When the state whether he had relevancy pursue counsel did defense grounds, concerning a book deal. inquiry hearing on the both testified at Levitt and Garr testimony Their revealed petition for new trial. friendly published after Levitt become had Newsday the victim’s York about an article New conviction, trial and petitioner’s Following murder. According his book about the case. published Levitt consisted own the book Garr, his contribution accuracy. For Garr’s ensure proofreading drafts to book, paid percent Levitt Garr with the assistance “net revenues” from the book. petitioner’s concerning claim on the Focusing Garr, Levitt and of a book deal between existence any claim that such rejected petitioner’s trial court newly essence, discovered. arrangement deal or pursued had not found that the the trial court event, two and, diligence, the issue due to the criminal prior men no book deal

699 expectation any and Garr no financial inter- trial, may that write planned est in book Levitt have to the about the case in future. my view, the court viewed the narrowly by the limiting

claim too its consideration to relationship of the of a issue existence formal business petitioner notes, between Levitt and Garr. As the “pact” book itself to a made “tell refers the men story.” Levitt, Moxley L. Conviction: Solving [their] p. x. (ReganBooks Murder As Levitt he 2004), testified, “pact” shortly and Garr had entered into this after the publication of a book about the victim’s murder by point candidly Mark Fuhrman —a time that Levitt described as Garr’s “lowest ebb” —because highly Fuhrman was investigation critical of the police murder the Greenwich department. There is nothing in petitioner the record to indicate that “pact” could have learned of the between Levitt and anytime publication Garr prior book, of the which, so far as we know, public contained the first revelation of that agreement. Furthermore, there was way no for the petitioner to have known about Garr’s animosity him family toward and his prior publi- book, cation of the directly which contains comments, attributable Garr, that reflect feelings. such The clearly record establishes, therefore, pact between tell Levitt and Garr to their story, and Garr’s bias alleged petitioner toward the as reflected in the book that from resulted that agreement, constitutes newly discovered evidence.117 ground affirming an judgment, As alternative the trial court’s petitioner proceed state contends that the court should have barred the from ing concerning light proce his claim following Levitt Garr. In history, disagree October, 2005, dural I with the state’s contention. In request present case, claiming, state tiled a among to revise in the other things, petitioner required that the should be to delete count nine of his complaint, alia, alleged, which inter was “entitled to a new trial newly evidence, including based [on] discovered but limited to previously alleged eight complaint. information in” the first counts motion, sought The trial court denied the state’s and the state no further this farther contends in a place disturbing

would the state’s case new fact, In book thereby warranting a new trial. the light, revelations about the potentially troubling contains relationship between Levitt and close exceedingly relationship that Levitt himself characterizes as Garr —a passionate commitment about their “unnatural”118 —and for petitioner responsible was establishing that the to example, For in the introduction the victim’s murder. say I’m “People dog writes: like book, to the Levitt story. I’m a my ankle when on with teeth someone’s than required the murder more pursuing But [victim’s] required stealth, and, tenacity courage. guile, even It or patience. importantly], most particular, the state did file a motion to strike relief at that time. broadly containing allegation portion nine the worded that the of count newly petitioner the discovered entitled to a new trial on basis was allegations “including limited to” the contained the but not During hearing complaint. (Emphasis added.) on of the the other counts petitioner trial, petition from a new the moved to bar the the state support motion, concerning proceeding and Garr. In its his claim Levitt on adequate it notice nine did not afford the state maintained that count petitioner late to that count claim and that it was too for the amend the period applicable petitions year for a new limitation to due to three rejected § 52-582. The trial court the state’s trial under General Statutes adequate of the because it had not been afforded notice claim contention that the claim on the basis of certain submissions the state was well aware of discovery phase petitioner pretrial during The trial case. only request sought explained to revise to court also that the state’s sought nine, not it the state never delete count to “flush out.” Because petitioner’s claim, specific and because more statement or articulation of claim, the state’s actual notice of that the trial court denied the state had Although proceeding preclude petitioner to from on claim. motion specificity undoubtedly have entitled more from the state would been nine, respect allegation petitioner with to the broad contained in count found, ample it, and, state had notice the state did not seek court no reason to disturb the court’s decision of the claim. I therefore see deny preclude proceeding from the state’s motion involving his claim Levitt and Garr. children, were, grown two men with wives and Levitt writes: “Here we together. meeting, spending increasing time At each we’d now an amount of talk for hours. together reporter coming unnatural and a detective —seemed so “Our —a us, ‘Jesus, anyone going [Garr], what was on between I said to if noticed ” supra, p. they might Levitt, gay.’ L. we’re 164. think

“I did not solve did murder. What I was [the victim’s] prevent family the Skakel from getting away it. I unexpected was that force that created of a stir enough keep the case alive until than someone smarter me all appeared put it together. person

“No, that was not the notorious former Los Angeles Fuhrman, detective Mark whose claim of solv- ing the trumpeted by murder was the national media. celebrity Dunne, Nor was it the writer Dominick whose claims the media accepted. Rather, person also who solved the murder an unheralded local [victim’s] pursued detective named Frank who Garr, his investiga- years tion for eleven and whose work and life became intertwined with mine. . . .

“Both of us found ourselves underdogs and outcasts naturally and formed a bond. We were an couple, odd a detective and a newspaper reporter. It like lion down lying not with a lamb with but a crocodile. Except grew closer, that we I wasn’t sure which of p. Id., us was which.” xiv.

The book also documents in considerable detail hostility petitioner Garr’s toward the family. and his Levitt writes: also family. knows the Skakel “[Garr] Despite the image of forthrightness generosity they present world, says they to the have no morals [Garr] or conscience. He calls them habitual and says liars loyalty their only each other. has no more regard friends, their neigh-

“[Garr] bors, attorneys family priest.” their Id., p. 4. —even “ quotes

Levitt later Garr as T saying, never hid the fact that these people despicable.’ were . . .

“ Liars They ‘Liars. and drunks. respon- refuse to take sibility They for anything actually do. see them- ” selves Id., p. as victims.’ 163. The factual basis for Garr’s family belief that the members are apparent book however, is no more Levitt’s liars, all by the state at the it was in evidence adduced than trial, during argued which the state petitioner’s criminal family decades-long a engaged Skakel Furthermore, respect petition- cover-up.119 which was conviction, appeal judgment from the er’s published, book was court when Levitt’s in this pending . . it die. “The . never let Levitt writes: Skakels [will] just kept evil . . . They the forces of like [who] [are] by quoting Garr Id., 285. Levitt concludes coming.” p. just They it is don’t Skakels, over. as follows: “For know it. appeal If I am and their wrong

“And remember this. if petitioner] gets and even granted, is somehow [the be you I will still be there. We’ll there to trial, new we are meant stop Sometimes I think that’s what them. quotation marks omit- do in this world.” (Internal Id. ted.) only by was fueled not

Apparently, Garr’s motivation petitioner family, and his deep antipathy toward the that he had been by recognition a desire for but also Levitt writes along. Thus, all about right exceedingly upset Fuhrman’s book that Garr was handling its criticism of Garr’s simply because of also because Fuhrman claimed investigation, but suspect petitioner that the had person to be the first to book, to Levitt’s which According the crime. committed Skakel, Sr., According Levitt, colleagues of to friends and Rushton family cover-up, praised alleged Skakel him an mastermind extremely “unspoken “[m]y person generous whose directive” life your quotation omitted.) Levitt, (Internal L. . . . .” marks house is house Skakel, Sr., p. Levitt, supra, According at a local Rushton volunteered 24. opened family’s swimming pool nursing home, in the summertime to a his person mentally and, according camp disadvantaged children one for loyal person thirty years, closely for he was “the most who worked with him person . . I’d most want to be with on a in the world . stranded [t]he you .’’(Internal advantage . . . because never take desert island” “[h]e’d omitted.) quotation Id. marks proofread accuracy: Garr for upset was so “[Garr] [after Fuhrman’s I reading he called me. drove over to book] his house. While I sat at his table, paced kitchen [Garr] the room. is such a . liar.’ . . ‘[Fuhrman]

“With that he flicked on the television. There on . . . one of the network talk shows was Fuhrman. He was over crowing how he’d solved the murder. [victim’s] I and turned and looked at each other. I didn’t “[Garr]

know laugh opened whether to or scream. his [Garr] mouth but no If words came. ever I saw a man crushed, this was it. with fought superiors nearly his

“[Garr had] decade over suspicions about the petitioner]. He’d [his by been ostracized his colleagues ridiculed yet bosses virtually singled-handedly gotten a grand jury impaneled. And here was Fuhrman, barely connection case, to the taking the credit. . . .

“I wanted to reach over and hug him, or at least touch his arm in commiseration. I didn’t, all though. Instead, I could say think to was . . . very sorry.’ ‘I’m so

“But I promise made a myself, and to him. When over, promised case was I that no matter which way it went, no matter jury how the I grand ruled, would tell the story, his and mine. shook pray his head. T you do,’ he said.

“[Garr] try ‘And I’ll help you. you’re only But jerking yourself ” Nobody off. will Nobody listen. you.’ will believe Id., pp. 213-14.

I agree petitioner with the that evidence contained in the book would be highly relevant to demonstrate Garr’s strong feelings antipathy petitioner toward the family. and his maintains, I agree, “ presented state heavily and relied variety on a [t]he questionable of witnesses who offered circumstantial evidence petitioner’s guilt,” such as Coleman, nünimum, and At a

the convicted felon heroin addict.120 tend of Levitt’s book would to undermine the contents investi- credibility judgment selection, in his Garr’s is particularly such This and use of witnesses. gation testimony in at the on light hearing so of Garr’s to though spoke a new trial even he petition for and Neal Walker “several times” about Crawford Mills he once to inter- never bothered allegations, despite that Garr worked view Hasbrouck the fact if a Finally, which resided. city the same Hasbrouck an presented were with information that jury to be put had been on earth to investigator believed part on the of a criminal defendant thwart effort inclined innocence, might it well be demonstrate investigator view marshaled the evidence skepticism. heavy with dose indicated, my I in view however, As have conclu- to a new on the petitioner sion that the entitled I need alone, not determine basis about extent which the revelations Garr’s involve- about negative ment with and his intense feelings Levitt family would have petitioner say that, jury’s verdict. It suffices to affected the objec- questions because that evidence raises about evi- tivity case, such investigation the state’s an at a new trial even acquittal dence would make likely. more

VI

CONCLUSION new not to be petition granted lightly, A for a trial is public have a interest strong state and provides book also remarkable contends “[Levitt’s] insight regard . . . first into Coleman. Coleman Garr’s conduct spoke 7; after a for the case had advertised to Garr June reward been drug People Magazine. . . . While aware that Coleman was a serious liar, . . . also . . . numerous individuals considered him user and ‘really [thought] that he Garr that he liked’ Coleman [told Levitt] guys’ he talked to.” ‘one of the had ever most believable

705 finality once a criminal defendant has been convicted and that appeal. conviction has been affirmed on There are occasions, however, discovery when the of new following original casts such doubt accuracy on the justice of a conviction that demands present a second trial. The case is such a case. The evidence brought by Bryant forward witness at least —a as credible key as the state’s witnesses, any without apparent motive to lie, and whose account of the facts has been in important respects corroborated suffi —is ciently compelling to rise to a give doubt, reasonable or even a doubt, serious as to whether involvement in the victim’s murder. such circumstances, legitimate finality desire for cannot trump right espe to a new trial. This is cially true in light “reality of the emerging of wrongful convictions”; McKithen v. Brown, 481 F.3d (2d Cir. cert. 2007), denied, 552 U.S. 1179, 128 S. Ct. 1218, 170 L. Ed. 2d 59 (2008); see also v. Marsh, Kansas U.S. 163, 210, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006) (Souter, J., dissenting) (“[m]ost . . . wrongful convic tions . . . eyewitness from misidentification, [result] false confession, and (most frequently) perjury . . . and . . . all among prosecutions homicide cases suffer an unusually high incidence of false conviction . . . probably owing to the combined difficulty of investigat ing help without from the victim, pressure intense to get convictions in cases, homicide and the corresponding incentive for guilty to frame the innocent” [citations omitted]); reality from which this jus state’s criminal system tice immune, as recent events have made all too See, clear. e.g., Miller v. Commissioner Cor rection, 242 Conn. 745, 747-48, 806-807, 700 A.2d 1108 (1997) (habeas properly court granted petition habeas when petitioner, after more than serving years ten thirty-two year sentence following conviction on two counts of first degree assault, established clear and convincing evidence, unavailable at trial, time of that no reason

that he was innocent of those crimes and find guilty offenses); able fact finder would him those Taylor Correction, v. Commissioner of Superior Court, judicial area number Tolland, geographical district of Rockville, at Docket No. TSR-CV05-4000409 nineteen 17, petition S habeas filed (March 2010) (granting M. Taylor, who, along George Gould, Ronald years following more sixteen been incarcerated for than felony murder, crimes, among other their conviction of crimes of upon that both men did commit finding v. Commis Gould convicted); had been which Correction, Superior Court, judicial district sioner of area number nineteen Rock Tolland, geographical (March 2010) Docket No. TSR-CV03-0004219-S ville, Nolan, also C. petition); Gould’s habeas see (granting Laws,” Trib., L. Inmates, Conn. “Freeing Changing inmates 17, 2009, pp. 1, (more than 240 across August evidence, due to DNA country have been exonerated namely, Tillman, James state, three in this including years prison serving after seventeen for released from commit, assault did not robbery sexual Roman, approximately after Miguel serving released years wrongful conviction of following nineteen Ireland, Jr., serving and Kenneth released after murder, for crimes twenty-one years his exoneration following In the present case, of sexual assault and murder). adopted by this court in misapplied trial court test Shabazz required a new trial is determining whether newly Proper application evidence. due to discovered principles of fundamental fairness of that test and the it be awarded that underlie dictate that a new trial. I dissent.

Accordingly, notes trial, Byrne’s hearing petition is no that for a new there indication night murder, parents and there also is no indication home on the were police Byrne’s by regarding whereabouts that were interviewed virtually night. contrast, police all of the other records indicate by vicinity police, parents living of the murder were interviewed along with their children. Tinsley testimony necessarily mini- night, import mizes the of the fact that no witnesses recall seeing Bryant, Tinsley Hasbrouck or there at that time. First, respect with to the provided by information Bryant, Barbara retained private investi- gators Udvardy Michael and Catherine in Sep- Harkness tember, 2006, early locate and interview her. In November, 2006, Udvardy up and Harkness set a surveil- Biyant’s lance outside Barbara apartment building City. New York Bryant When Barbara exited the build- in the late ing Udvardy morning, and Harkness intro- duced themselves and asked her if she would be willing questions. answer a few She to do so and agreed spoke to the investigators approximately for fifteen minutes. According Udvardy, Bryant Barbara “expressed frustration with out coming [her son] story” with the and indicated that “she why didn’t know he was discussing it at all.” When asked whether her son was in Belle Haven day on the of the murder, Bar- Bryant bara responded that he had gone there with Tinsley Hasbrouck and but had returned home “that night." (Emphasis She also added.) stated at that time, her son had told her that Hasbrouck Tinsley spent night Bryant Belle Haven. Barbara spoke also Udvardy about the New York Times article November 1975, that her son had alluded to in his video-recorded interview with Colucci. Barbara specifically recalled the article discussing with her son at the publication. time of its Udvardy’s testimony was confirmed in respects by all Harkness, who also was present for Barbara interview Udvardy. February On 21, 2007, Barbara deposed petitioner. deposition Her was video recorded and later admitted into evidence at the hearing on the petition for a new trial. At her deposition, Bry- Barbara ant changed story her somewhat from what she had

Case Details

Case Name: Skakel v. State

Court Name: Supreme Court of Connecticut

Date Published: Apr 20, 2010

Citation: 991 A.2d 414

Docket Number: SC 18158

Court Abbreviation: Conn.