Adams v. Commissioner of Correction

****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************  SEAN ADAMS v. COMMISSIONER OF CORRECTION (SC 18810) Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh and Harper, Js.* Argued November 2, 2012—officially released July 23, 2013 Robert J. Scheinblum, senior assistant state’s attor- ney, with whom were Kevin T. Kane, chief state’s attor- ney, and, on the brief, Michael Dearington, state’s attorney, Linda N. Howe, former senior assistant state’s attorney, and David Clifton, assistant state’s attorney, for the appellant (respondent). Damon A. R. Kirschbaum, for the appellee (peti- tioner).  Opinion PALMER, J. This petition for habeas corpus arises from the state’s failure to correct the false and mis- leading testimony of one of its key witnesses in the trial of the petitioner, Sean Adams, who, following that trial, was convicted of murder and other offenses, and sentenced to 100 years in prison. The respondent, the commissioner of correction, appeals from the judgment of the Appellate Court, which reversed the judgment of the habeas court denying the petitioner’s amended petition for a writ of habeas corpus. See Adams v. Commissioner of Correction, 128 Conn. App. 389, 399, 17 A.3d 479 (2011). We granted the respondent’s petition for certification, limited to the following issue: ‘‘Did the Appellate Court properly conclude that the state deprived the petitioner of a fair trial by failing to dis- close [a key witness’] plea agreement or to correct misleading testimony [by that witness]?’’ Adams v. Commissioner of Correction, 301 Conn. 930, 930–31, 23 A.3d 725 (2011). Because the respondent has con- ceded that the state was required but failed to correct false and misleading testimony, the only remaining question concerns materiality: Is there any reasonable likelihood that the testimony could have affected the judgment of the jury? We agree with the Appellate Court that the testimony was material and, consequently, that the petitioner is entitled to a new trial. The following facts and procedural history are not in dispute. The petitioner, Darcus Henry, Johnny Johnson and Carlos Ashe, all identified as members of a street gang known as the Island Brothers, were arrested and charged in connection with a shooting that occurred on December 14, 1996, at approximately 2 a.m., in a courtyard at the Farnam Courts housing project in the city of New Haven. The three victims of the attack were Jason Smith, Andre Clark (Andre) and Marvin Ogman, all members of a rival street gang known as the Ghetto Boys. Each of the three victims was shot multiple times and suffered serious wounds, and Smith, who was Andre’s cousin, died from those wounds. Andre and Ogman were the state’s primary witnesses at the ensu- ing jury trial of the petitioner and his three codefen- dants, Henry, Johnson and Ashe. At the conclusion of that trial, the petitioner was found guilty of all charges, that is, murder, conspiracy to commit murder and two counts of assault in the first degree.1 At trial, Andre testified falsely that he had not been promised any consideration on his then pending charges in two unrelated criminal cases in exchange for his testimony against the petitioner and the petitioner’s codefendants.2 Andre also testified that he faced a possi- ble maximum sentence of thirty-eight years imprison- ment for those pending charges, even though the judge who accepted his pleas, Fasano, J., had placed a four year limitation on Andre’s sentence, with the possibility of a more lenient sentence, conditioned on Andre’s cooperation with the state.3 Assistant State’s Attorney James G. Clark (prosecutor),4 who tried the petitioner’s case for the state, did not correct Andre’s false testi- mony, apparently because he was unaware of Andre’s plea agreement as Andre’s cases were being handled by another prosecutor, namely, Assistant State’s Attorney Roger Dobris. Following his conviction, the petitioner appealed to the Appellate Court, which affirmed the judgment of the trial court.5 State v. Adams, 72 Conn. App. 734, 736, 806 A.2d 111, cert. denied, 262 Conn. 916, 811 A.2d 1292 (2002). The petitioner subsequently filed this petition for a writ of habeas corpus, claiming, inter alia, that the state had deprived him of a fair trial by failing to correct Andre’s false testimony.6 At the habeas trial, the prose- cutor testified that he was aware that Andre had pend- ing charges at the time of the petitioner’s trial and that he also knew that Dobris was handling Andre’s cases. The prosecutor and Dobris had agreed not to share any details with each other about Andre’s pending cases and the petitioner’s trial, effectively setting up a ‘‘firewall’’ between them.7 The evidence also established that, on December 16, 1998, Andre entered Alford8 pleas in two separate cases on one count of carrying a pistol without a permit and two counts of possession of narcotics with intent to sell. Andre accepted the court’s plea offer of a sentence of no more than four years imprisonment, with the right to argue for less, conditioned on his cooperation with the state.9 Although the court origi- nally set sentencing for February 19, 1999, Andre was not sentenced until September 14, 2001, after he had testified in all three trials stemming from the December 14, 1996 shooting, including the petitioner’s trial.10 At Andre’s sentencing hearing, Dobris recommended that the court vacate Andre’s pleas on two of the charges and impose an unconditional discharge on the third charge. In support of this request, Dobris observed that Andre ‘‘ha[d] testified [in] three trials that I know of in which he was a gunshot victim and also an eyewitness. He’s being shown consideration for his truthful cooper- ation and testimony. . . . He’s been enormously coop- erative.’’11 The court, Fasano, J., followed Dobris’ recommendations, and Dobris dropped the two charges to which Andre had entered the subsequently vacated pleas. The habeas court assumed without deciding that Andre’s testimony at the petitioner’s trial was false and misleading but concluded that, notwithstanding the state’s failure to correct that testimony, the petitioner had not demonstrated materiality. The court reasoned that, even if the jury had been informed of any consider- ation that Andre may have expected to receive in exchange for his testimony, there was only a slight probability that such information would have affected the outcome of the petitioner’s trial. The habeas court also observed that the court, Fasano, J., rather than the state, had offered to limit Andre’s sentence to four years imprisonment in return for his trial testimony, thereby ‘‘further weakening [the] probability’’ of a dif- ferent outcome and ‘‘further abating the petitioner’s theory of the case.’’12 The petitioner appealed, on the granting of certifica- tion, to the Appellate Court, which reversed the judg- ment of the habeas court. Adams v. Commissioner of Correction, supra, 128 Conn. App. 399. The Appellate Court observed the respondent’s concession on appeal that the state improperly had failed to correct Andre’s false testimony. Id., 396. The court explained that, because Andre’s false testimony related directly to his credibility on the issue of his motivation for cooperating with the state, there was a reasonable likelihood that the testimony could have affected the jury’s judgment; id., 399; thereby entitling the petitioner to a new trial. This certified appeal followed. On appeal, the respondent concedes, as he did in the Appellate Court, that the state had a constitutional duty to correct Andre’s false and misleading testimony with respect to the terms on which Andre’s plea agreement were predicated.13 The respondent maintains, however, that, contrary to the conclusion of the Appellate Court, the state’s failure to correct Andre’s false testimony was not material because (1) the jury knew about Andre’s pending charges and his interest in demonstrating to the state that, in light of his cooperation with the state, he was deserving of its assistance in obtaining a favor- able disposition of those charges, (2) Andre had a strong incentive to testify truthfully, both as a victim of the shooting and as a witness to his cousin’s murder, (3) Andre was cross-examined extensively and thoroughly impeached by defense counsel at the criminal trial of the petitioner and his codefendants, and (4) there was strong, independent evidence corroborating the peti- tioner’s guilt, in particular, the testimony of Ogman and Charles Clark. The petitioner responds that, in light of the dearth of physical evidence tying him to the shoot- ing, the fact that Ogman, one of the state’s key wit- nesses, lacked credibility, and the effectiveness with which Andre thwarted every effort by defense counsel to suggest that he was motivated by the prospect of leniency rather than the desire for justice, the state’s failure to correct Andre’s false testimony was material. We agree with the petitioner.14 The rules governing our evaluation of a prosecutor’s failure to correct false or misleading testimony are derived from those first set forth by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 86– 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and we begin our consideration of the respondent’s claim with a brief review of those principles. In Brady, the court held that ‘‘the suppression by the prosecution of evidence favorable to an accused upon request violates due pro- cess [when] the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [prosecutor].’’15 Id., 87; accord State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). The United States Supreme Court also has recognized that ‘‘[t]he jury’s estimate of the truthfulness and relia- bility of a . . . witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.’’ Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). Accordingly, the Brady rule applies not just to exculpatory evidence, but also to impeach- ment evidence; e.g., United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154–55, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); which, broadly defined, is evidence ‘‘having the potential to alter the jury’s assessment of the credibility of a significant prosecution witness.’’ (Internal quotation marks omitted.) United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004). Because a plea agreement is likely to bear on the motivation of a wit- ness who has agreed to testify for the state, such agreements are potential impeachment evidence that the state must disclose. See, e.g., State v. McIntyre, 242 Conn. 318, 323, 699 A.2d 911 (1997). Not every failure by the state to disclose favorable evidence rises to the level of a Brady violation. Indeed, a prosecutor’s failure to disclose favorable evidence will constitute a violation of Brady only if the evidence is found to be material. ‘‘The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscar- riage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial . . . .’’ United States v. Bagley, supra, 473 U.S. 675. In a classic Brady case, involving the state’s inadvertent failure to disclose favorable evidence, the evidence will be deemed material only if there would be a reasonable probability of a different result if the evidence had been disclosed. ‘‘Bagley’s touchstone of materiality is a ‘reasonable probability’ of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, under- stood as a trial resulting in a verdict worthy of confi- dence. A ‘reasonable probability’ of a different result is accordingly shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ’’ Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). When, however, a prosecutor obtains a conviction with evidence that he or she knows or should know to be false, the materiality standard is significantly more favorable to the defendant. ‘‘[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’’16 United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); accord State v. Ouellette, 295 Conn. 173, 186, 989 A.2d 1048 (2010). This standard, which the state acknowl- edges is the proper test for purposes of the present case,17 applies whether the state solicited the false testi- mony or allowed it to go uncorrected; e.g., Napue v. Illinois, supra, 360 U.S. 269; and is not substantively different from the test that permits the state to avoid having a conviction set aside, notwithstanding a viola- tion of constitutional magnitude, upon a showing that the violation was harmless beyond a reasonable doubt. See United States v. Bagley, supra, 473 U.S. 679–80 n.9 (equating Napue materiality standard and harmless error standard of Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967]); see also Guzman v. Secretary, Dept. of Corrections, 663 F.3d 1336, 1348 (11th Cir. 2011); Elmore v. Ozmint, 661 F.3d 783, 829–30 (4th Cir. 2011). This ‘‘strict standard of materiality’’ is appropriate in such cases ‘‘not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process.’’ United States v. Agurs, supra, 104; see also Shih Wei Su v. Filion, 335 F.3d 119, 126 (2d Cir. 2003) (noting ‘‘funda- mental nature of the injury to the justice system caused by the knowing use of perjured testimony by the state’’). In light of this corrupting effect, and because the state’s use of false testimony is fundamentally unfair, prejudice sufficient to satisfy the materiality standard is ‘‘readily shown’’; Shih Wei Su v. Filion, supra, 127; such that ‘‘reversal is virtually automatic’’; (internal quotation marks omitted) Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005); accord United States v. Stewart, 433 F.3d 273, 297 (2d Cir. 2006); unless the state’s case is ‘‘so overwhelming that there is no reasonable likelihood that the false testimony could have affected the judg- ment of the jury.’’ (Internal quotation marks omitted.) Shih Wei Su v. Filion, supra, 129. In accordance with these principles, our determina- tion of whether Andre’s false testimony was material under Brady and its progeny requires a careful review of that testimony and its probable effect on the jury, weighed against the strength of the state’s case and the extent to which the petitioner and his codefendants were otherwise able to impeach Andre. We therefore begin with a review of the state’s evidence, which may be summarized as follows. According to testimony of Richard Pelletier, a New Haven police detective with expertise about local gangs, Andre, Smith and Ogman were members of the Ghetto Boys. The petitioner, Henry, Johnson and Ashe were all members of a rival gang, the Island Brothers. During the relevant time period, relations between the Island Brothers and the Ghetto Boys were ‘‘[e]xtremely hostile,’’ and the gangs ‘‘were shooting at each other on a regular basis.’’ One such incident, in August, 1996, resulted in the death of Tyrese Jenkins, a member of the Island Brothers. Subsequently, two members of the Ghetto Boys, Charles Green and Dwayne Clark,18 were arrested and charged with his murder. The Island Brothers had resolved to avenge Jenkins’ murder. At approximately 10 p.m. on December 13, 1996, the petitioner and two of his codefendants met at the Mele- bus Club in New Haven, a nightclub that is only a short walk from Farnam Courts. The men left the nightclub around 2 a.m. and arrived in the courtyard located in Farnam Courts between Franklin Street and Hamilton Street. Shortly after 2 a.m., Andre, Ogman, Smith and Terence Davis,19 who were gathered in the courtyard, were fired on by men wielding semi-automatic weap- ons. Ogman testified that he saw the petitioner and his codefendants firing guns. Andre identified the peti- tioner, Henry and Ashe as being present at the shooting and carrying guns, but he could not be certain whether the fourth shooter was Johnson or Johnson’s brother, Gaylord Salters. Andre further testified that the peti- tioner was wearing a bright yellow jacket. Andre’s brother, Charles Clark, who was fifteen years old at the time of the shooting, testified that he arrived at the scene after the initial volley of gunfire and saw a person standing over another person whom he later learned was Smith. Although he could not identify the person standing over Smith, he heard him say, ‘‘[D]o you want to die? I’m from the Island.’’ The person then fired his weapon down toward Smith. Charles Clark also saw someone wearing a yellow jacket with the letter ‘‘P’’ on the back running toward a tunnel that served as an exit from the courtyard. The next day, the petitioner, who was wearing a yellow jacket and a bulletproof vest, was arrested in the company of Johnson and Ashe. No weapons ever were recovered. The only physical evidence that connected the petitioner and his codefen- dants to the scene was the yellow jacket that the peti- tioner was wearing when he was arrested, the sig- nificance of which depended on the credibility of Andre and Charles Clark, both of whom testified that the peti- tioner had been wearing a yellow jacket at the time of the shooting. A fair assessment of the state’s case, therefore, is that it depended largely on the credibility of two eyewitnesses, namely, Andre and Ogman.20 Ogman, arguably the state’s main witness, was mostly consistent in identifying the petitioner as one of the shooters. The only exception was when he initially was brought into the emergency department at Yale-New Haven Hospital (hospital) following the shooting. Offi- cer John Velleca of the New Haven Police Department accompanied Ogman in the ambulance on the way to the hospital. At the hospital, Velleca asked Ogman whether there was anyone with whom ‘‘he had problems recently,’’ and Ogman responded that he was having problems with the Island Brothers. A note in Ogman’s medical records reflects that, when he arrived at the hospital, he told a surgical resident that he was unable to recall the events of the shooting. While hospital staff were treating Ogman, however, he told Velleca that the shooters were Salters, Johnson, Ashe and Henry. Ogman indicated that he would give additional details to John Dalton, a New Haven police officer who knew the Ogman family. Dalton was summoned immediately and found Ogman awaiting surgery, at which time Ogman told him that the shooters were the petitioner, Henry and Johnson. Ogman also indicated that, although he had not seen Salters, Ogman knew that he was there as well. Shortly afterward, upon being questioned by Detective Edwin Rodriguez of the New Haven Police Department, Ogman for the first time named the petitioner and all three of the petitioner’s codefendants as the shooters, and he did not thereafter waver in his identifications. On almost every other issue, however, Ogman’s testi- mony was so inconsistent, both with respect to his own prior statements and testimony, and with respect to the testimony of other witnesses, that his overall veracity was, at best, highly suspect. The tenor of his testimony is best captured by an exchange between him and the petitioner’s counsel21 following one of the many occa- sions on which Ogman was confronted with his own prior, contradictory testimony. The petitioner’s counsel asked Ogman: ‘‘Is it true that your concept, your under- standing of the concept of truth, is that it’s fluid, that is to say, that it changes with the situation that you are in or the audience that you have?’’ Ogman answered simply: ‘‘Yes.’’ A few examples illustrate the point. Ogman repeat- edly denied that he was a member of the Ghetto Boys and also denied that Andre, Smith, Green and Dwayne Clark were members of that gang. At one point, how- ever, seemingly unaware that he already had testified to the contrary, Ogman openly acknowledged that both Andre and Dwayne Clark, as well as Smith and Green, were members of the Ghetto Boys. Regarding the nature and extent of his own ‘‘association’’ with the Ghetto Boys, at one time he claimed that he found out only after the shooting that persons with whom he associ- ated were members of the gang, but, at another point, he claimed that he had worn a bulletproof vest on the night of the shooting because he knew that his close association with the Ghetto Boys might lead others to mistake him for a member of the gang. Ogman never admitted that he was a member of the Ghetto Boys. His denials directly contradicted the testimony of Pel- letier, the state’s expert witness on gang activity who was assigned to the state police gang task force from 1995 to 1999. Not only did Pelletier have extensive train- ing in the area of gang activity, he also was personally familiar with the Ghetto Boys, and he testified unequivo- cally that Andre, Green, Dwayne Clark, Smith and Ogman were all members of the Ghetto Boys. Ogman also gave varied accounts of his drug use, both on the night of the shooting and in general. Peter Angood, an associate professor of surgery and the direc- tor of the surgical intensive care unit at the hospital, was supervising the trauma service at the hospital on December 14, 1996. He testified that, on that date, Ogman tested positive for both phencyclidine, also known as PCP, and marijuana. Because the active chem- ical component of both of those drugs remains in a person’s circulatory system for a period of time, the tests established only that Ogman had used PCP up to a few days prior to the shooting and that he had used marijuana up to one week before the shooting. A preop- erative note in Ogman’s medical record reflects that, when questioned, Ogman admitted using marijuana, although it was unclear from the note whether he had admitted using it generally or on that night in particular. Another portion of the medical record reflects that, at some point during his hospital stay, he indicated to a social worker that he did not use any illicit substances, although it was unclear whether that interview took place before or after surgery. Ogman testified that he had not used any drugs on the night of the shooting, but he acknowledged that he had been informed of the results and significance of the drug test and admitted that he had used drugs at some point during the week before the shooting. He also admitted that, in 1996, he was using a drug called ‘‘wet,’’ or ‘‘illy,’’ which consists of smoking material dipped in PCP and formaldehyde. When he was reminded that he was on parole for much of 1996, and that using ‘‘illy’’ would have violated the conditions of his parole, he qualified his admission, stating that he only had begun using ‘‘illy’’ after October 30, 1996, when his period of parole had ended. Ogman appeared much more reluctant, at least at times, to acknowledge his marijuana use. At first, very shortly after he acknowl- edged that he was aware that he had tested positive for marijuana on the night of the shooting, he categorically denied any use of marijuana in December, 1996. Subse- quently, when he again was asked whether he smoked marijuana, he replied that he did, but not on the night of the shooting. On a third occasion, he admitted that he smoked a marijuana blunt22 to ingest ‘‘illy’’ but refused to concede that he therefore also ingested marijuana. The next day, while still refusing to concede that he used marijuana when he smoked ‘‘illy,’’ he acknowledged that he previously testified that he had used marijuana. At one point, Ogman even stated that he falsely had denied to hospital personnel immediately prior to sur- gery that he had used illicit substances, despite his awareness of the importance of informing them of any drugs that might be in his system prior to undergoing surgery. When the prosecutor, in an attempt to rehabili- tate Ogman, reminded him on redirect examination that he had admitted to the anesthesiologist who inter- viewed him prior to surgery that he had used marijuana, Ogman initially denied making that statement and only conceded that he had done so after being shown his medical record. Ogman also gave contradictory statements as to whether he had ever been shot at prior to December 14, 1996, or had ever heard the sound of gunshots before that incident. He initially denied that he had ever been shot at before that night and denied that he had told hospital personnel that he had been shot at on prior occasions. In his statement to police, he even claimed that, when he first heard the gunshots on the night of the shooting, he did not realize that it was gunfire because he had never before heard that sound. Ogman’s subsequent testimony, however, was irreconcilable with both statements. Specifically, he thereafter admit- ted that he had told a social worker at the hospital that he had been shot at on two prior occasions and that those incidents occurred during his childhood. When he subsequently was confronted with his inconsistent answers, Ogman explained that he did not understand the relevant time frame when he initially denied that he had been shot at previously. The testimony was then read back to Ogman: Defense counsel asked Ogman: ‘‘[W]as this the first occasion in which you were shot, December 14, 1996?’’ Ogman responded: ‘‘What [do] you mean?’’ Defense counsel then asked: ‘‘Had you ever been shot at prior to that?’’ Ogman responded: ‘‘No.’’ Defense counsel asked: ‘‘Never?’’ Ogman responded: ‘‘Never.’’ As to his claim that he had never heard the sound of gunfire before the night of December 14, 1996, that statement directly conflicted with his testimony regard- ing the childhood incidents and his admission that he had been present at shootings on at least two prior occasions. Even his account of those events was not consistent. Regarding the two prior shootings, he later stated that when he alluded to the two prior shootings, he intended to include the December 14, 1996 shooting as one of the shootings. At other points, he equivocated, suggesting that he was not present at any prior shoot- ings and was merely ‘‘aware’’ of the ongoing conflict between the Island Brothers and the Ghetto Boys because he had read ‘‘literature’’ about it and because others had told him about the shootouts between the gangs. Finally, when Ogman was confronted with his conflicting testimony, he testified that, when he had told the police that he had never heard gunshots, he meant that he had never heard them fired at him, and that gunfire aimed toward oneself sounds quite different from gunfire aimed at others. He was not asked how that distinction accounted for the two occasions on which he was fired at. Some of Ogman’s falsehoods defy explanation. For example, early in his testimony, he denied without quali- fication knowing a person by the name of Terence Blow or Terence ‘‘Bones,’’ whose real name is Terence Davis. See footnote 19 of this opinion and accompanying text. Yet, when he was asked the following day if he knew someone by the name of ‘‘Bones,’’ he replied, ‘‘[y]es’’ and that he is also known as ‘‘Terence.’’ He also admit- ted that he had seen Davis on the day of the shooting but denied that Davis was present immediately prior to the shooting. By contrast, Andre testified that Davis was with Andre, Ogman and Smith when the shooting began but escaped unscathed. Ogman testified inconsistently that he was lying either facedown or faceup after he was shot. This fact is particularly significant because Ogman stated that he recognized the faces of the shooters only after he fell. He initially told Detective Thomas Trocchio of the New Haven Police Department, who took Ogman’s statement following surgery, that he was lying face- down after he was shot. On direct examination, Ogman claimed that he just remembered that he was lying on his back and then agreed when the prosecutor sug- gested that he might have been facedown and then rolled over. Shortly thereafter, while still on direct examination, he again claimed that he had been lying facedown. The next time he was asked, he stated that he had been lying faceup, but when he was reminded that he had told Trocchio that he had been lying face- down, he did not dispute the truth of his statement. When he testified yet again that he had been lying faceup, and was reminded, once again, of his statement to the police, he claimed that the statement he had given to the police was incorrect. Charles Clark’s testimony adds only two significant pieces of evidence to the state’s case. Charles Clark was at his girlfriend’s apartment on Franklin Street in New Haven in the early morning hours of December 14, 1996. Hearing gunfire, he left the apartment to look for Andre, his brother. When he arrived at the courtyard at Farnam Courts, he saw three persons, two on the ground and one standing over one of the persons on the ground. The person standing over the other person on the ground said, ‘‘[D]o you want to die? I’m from the Island,’’ and then started firing down at him. Charles Clark fell and stayed down for about forty-five seconds to one minute. When he stood up, he saw a person running toward the tunnel. The person, whom Charles Clark could see only from behind, was wearing a yellow jacket with the letter ‘‘P’’ on the back.23 Viewed in the context of the testimony of the other state’s witnesses, Andre’s testimony was significant and, therefore, so was any evidence that could cast doubt on his credibility. Andre is the only witness other than Ogman who identified the petitioner as one of the shooters. He also is the only witness other than Charles Clark who testified that the petitioner was wearing a yellow jacket on the night of the shooting. Police ques- tioned Andre immediately following the shooting, while he was being treated at the hospital, but he told them that he did not know who had shot him, stating only that he knew that the assailants were members of the Island Brothers because of a ‘‘beef’’ between the two gangs. In fact, he did not provide a statement to police until more than two years later, on March 3, 1999. His testimony at trial, which was largely consistent with his police statement, was that, shortly before 2 a.m. on December 14, 1996, he was smoking marijuana with Davis by the tunnel in the courtyard at Farnam Courts. At some point, Ogman and Smith joined them. Andre then walked to a friend’s nearby apartment on Franklin Street to make a telephone call, accompanied by Davis, with Ogman and Smith walking a short distance behind them. After he completed his telephone call, the four men walked back to the courtyard, heading toward the tunnel. As they approached the tunnel, gunmen came running out of the tunnel, firing at them. Andre turned immediately and ran toward Franklin Street. As he was running, he was struck by multiple bullets. He fell to the ground and pushed himself behind a utility box, where he hid. As the gunfire stopped momentarily, he managed to push himself back toward a corner in the apartment building, under a stairway. He then pro- ceeded to bang on apartment doors for help, when he heard the gunfire resume and become louder. He thereafter observed four individuals run past him. As they did, he looked in their direction and observed their faces, and also saw that all four were carrying guns. In addition, Andre noticed that the petitioner was wearing a bright yellow jacket, which he identified at trial. He also heard someone say, ‘‘come on, ‘Leet,’ ’’ which Andre understood to be a reference to Ashe.24 At that point, Andre, who had suffered nine gunshot wounds,25 slipped in and out of consciousness. Cross-examination of Andre was extensive and focused on the limited nature of the view he had of the shooters, his criminal record and his delay in coming forward to authorities. He also was questioned about the relation between his eventual decision to testify and his pending criminal charges. Although the cross- examination was aggressive, Andre effectively rebuffed efforts by defense counsel to demonstrate that he was motivated to testify against the petitioner and his code- fendants by any promise or expectation of leniency.  Perhaps the most effective cross-examination was the line of inquiry that focused on Andre’s limited ability to view and accurately identify the shooters. Andre testified that he smoked approximately one blunt of marijuana on the night of the shooting. He turned and ran immediately when the shooting started, so, initially, he could not see the shooters, who were behind him. After he hid behind the utility box and pushed himself back into the corner of the apartment building, the only view he had of the shooters as they ran past his hiding place was from the side, not the front. Additionally, all four of the shooters were wearing hats that Andre called ‘‘skullies,’’26 and he was able to view the shooters only through a gap between the stairway under which he was lying and a brick column. The width of that gap, together with the speed with which the shooters were moving, called into question how long and how well Andre had been able to observe them. Moreover, as the shooters ran by Andre, they were ‘‘[i]n a bunch,’’ casting further doubt on whether Andre could see their faces clearly enough to identify them.27 Defense counsel also highlighted Andre’s weakened condition, establishing that, at some point before medical personnel arrived, he fell in and out of consciousness. Finally, defense counsel elicited an admission from Andre that, shortly after the shooting, while he was visiting Ogman at Gay- lord Hospital, Ogman told him who the shooters were. Cross-examination also underscored Andre’s exten- sive criminal record, including convictions in 1991 for possession of narcotics, in 1992 for larceny in the sec- ond degree, criminal impersonation, failure to appear, and sale of narcotics, in 1996 for possession of narcot- ics, and in 1998 for interfering with an officer by resisting arrest.28 Andre also acknowledged that he was incarcerated at the time of trial. Further cross-examina- tion explored the length of his career as a drug dealer and the type of drugs that he sold, including testimony that Andre, who was twenty-five years old at the time of trial, began selling drugs when he was thirteen years old. Defense counsel also highlighted Andre’s lack of moral values, focusing on his belief that selling drugs was not wrong. One of the more heated exchanges focused on Andre’s prior conviction for criminal imper- sonation, which resulted from his giving a false name to the police following his arrest on larceny charges, a ruse that resulted in his release on bond until the police learned of his true identity. During the exchange, defense counsel emphasized Andre’s willingness to lie to the authorities to avoid prison time. Defense counsel also attempted to impeach Andre’s credibility by suggesting that he gave his March 3, 1999 statement in an effort to gain a favorable disposition of his pending criminal charges. On cross-examination, defense counsel elicited the following information. On January 5, 1998, Andre was arrested and charged with illegal possession of a firearm and carrying a pistol without a permit. Shortly thereafter, on March 10, 1998, Andre was arrested on various drug charges. After post- ing bond for both the drug charges and the firearms charges, Andre was arrested on February 23, 1999, on an extradition warrant charging him with being a fugi- tive from New York authorities. At that time, and at the time of trial, both the firearms and drug charges remained pending. While Andre was still incarcerated on the extradition warrant, his attorney arranged for him to give a statement to police regarding the Decem- ber 14, 1996 shooting, and he did so on March 3, 1999. Andre denied, however, that his attorney had told him that he would receive consideration on his pending firearms and drug charges if he provided the police with a statement about the December 14, 1996 shooting. Andre also emphatically and repeatedly denied that he had been offered or promised any consideration in exchange for his cooperation. He stated that he only sought justice and denied that he expected any leniency in return for his testimony. When Andre was asked whether he anticipated facing the full thirty-eight years that the charges carried, he replied that it was possible and stated: ‘‘[Y]ou do the crime, you got to do the time, if they give me [thirty-eight years], they give me [thirty- eight], that’s what I say.’’ On redirect examination, the prosecutor reinforced Andre’s false testimony by point- edly asking him whether he was aware of the maximum sentence that he could face on his pending charges, as well as the minimum, which was one year. Andre also was asked on redirect examination why he had waited so long to give a statement to police. Andre responded that he was afraid for his mother’s safety because the shooters knew where she lived, and that he was con- cerned that, if he came forward, he would be labeled a ‘‘snitch.’’ Finally, Andre claimed that he initially remained silent because he wanted the opportunity to take revenge personally against the shooters. He stated that he ultimately came forward because he decided that he did not want to create further hardship for his family by risking