Mitchell v. State

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 JAMES A. MITCHELL v. STATE
OF CONNECTICUT ET AL.
(SC 20287)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*

Syllabus

Pursuant to statute (§ 54-95 (a)), ‘‘[n]o appeal may be taken from a judgment
denying a petition for a new trial unless, within ten days after the
judgment is rendered, the judge who heard the case . . . certifies that
a question is involved in the decision which ought to be reviewed by
the Supreme Court or by the Appellate Court.’’
The petitioner, who had been convicted of numerous crimes, including
attempt to commit murder, conspiracy to commit murder, kidnapping
in the first degree, sexual assault in the first degree, and assault in the
first degree in connection with an incident in which the petitioner and
a coconspirator sexually assaulted the victim at gunpoint and then shot
her several times, filed a petition for a new trial based on a claim of
newly discovered evidence. Specifically, the petitioner claimed that there
was newly discovered evidence in the form of technologically enhanced
security camera footage that had been shown to the jury, which made
it clear that it was the coconspirator and not the petitioner who had
exited the petitioner’s car and approached the victim’s body after she
had been shot, as well as certain impeachment evidence relating to the
posttrial arrest and conviction of H, the lead detective in the petitioner’s
criminal case, in connection with H’s involvement in a forgery scheme.
The petitioner also claimed that the prosecutor improperly withheld
certain exculpatory evidence and introduced false testimony from the
victim. The trial court denied the petition for a new trial, concluding,
inter alia, that the evidence against the petitioner was overwhelming
and that it was not probable that the new evidence regarding the security
camera footage or H’s conviction would produce a different result at a
new trial. The petitioner then appealed to the Appellate Court but did
so without first seeking certification to appeal pursuant to § 54-95 (a).
After the appeal was pending for almost one year, the Appellate Court
notified the petitioner that the requisite certification to appeal was
lacking. Accordingly, the petitioner filed in the trial court a request for
leave to file a late petition for certification to appeal, in which he
explained that he had not been provided notice of the appeal procedures
and the certification requirement specific to a petition for a new trial,
as is the custom in habeas corpus cases. Before argument proceeded
in the trial court on the request for leave, the Appellate Court dismissed
the petitioner’s appeal for his noncompliance with § 54-95a (a). In deny-
ing the petitioner’s request for leave, the trial court summarized the
reasons why it had rejected the petitioner’s enhanced security camera
footage claim, indicated that the claim regarding H’s posttrial arrest
would not have affected the result of the petitioner’s criminal trial, and
concluded that the petitioner’s claims were ‘‘meritless and too late.’’
The petitioner again appealed to the Appellate Court, claiming that the
trial court had abused its discretion in denying his request for leave to
file a petition for certification to appeal because the trial court did
not consider the reason for the delay or any other factors relevant to
permitting a late filing and, instead, denied his request on the basis of
the merits of his appeal. The Appellate Court dismissed the appeal,
concluding that, although the trial court had referenced the merits of
the petitioner’s claims, it also had considered, and largely based its
decision on, the length of the petitioner’s delay in requesting leave to
file a late petition for certification to appeal. On the granting of certifica-
tion, the petitioner appealed to this court. Held:
1. The Appellate Court incorrectly concluded that the trial court had not
abused its discretion in denying the petitioner’s request for leave to file
a late petition for certification to appeal because, in deciding whether
to excuse the untimely request, the trial court failed to give due consider-
ation to the petitioner’s reason for his late filing: although the trial court
 considered the length of the petitioner’s delay by acknowledging the
ten day limit in § 54-95 (a) and stating that the petitioner’s claims were
‘‘too late,’’ the reason for the delay is a distinct, nontemporal factor that
the court must consider separately in deciding whether to excuse an
untimely filing, and nothing in the record indicated that the trial court
considered the reason advanced by the petitioner, namely, that the
custom of providing notice of the certification requirement in habeas
cases shows that it is an important procedural hurdle that could be
overlooked in the absence of special mention and that he was lulled
into error by his prior experience in his habeas case; moreover, this
court was not convinced that, if the trial court had considered that
reason, it would have denied the petitioner’s request, as the petitioner’s
attorney otherwise diligently pursued the appeal of the denial of his
petition for a new trial and complied with the certification requirement
in the petitioner’s habeas case when he received noticed to do so,
the trial court, the Appellate Court and the state all overlooked the
petitioner’s noncompliance with § 54-95 (a) during the year the appeal
was pending, neither the state nor the trial court suggested that the delay
resulted in any prejudice, and the petitioner would have no meaningful
remedy for his attorney’s failure to comply with § 54-95 (a), there being
no right to the effective assistance of counsel in connection with a
petition for a new trial.
2. The judgment of the Appellate Court was affirmed on the alternative
ground that the trial court acted within its discretion in denying the
petitioner’s request for leave to file a late petition for certification to
appeal on the ground that the petition for a new trial did not raise any
issue warranting appellate review:
a. With respect to the technologically enhanced security camera footage,
the petitioner had raised a similar claim in his habeas petition, and the
Appellate Court upheld the habeas court’s conclusion that the petitioner
was not prejudiced by his counsel’s alleged failure to adequately investi-
gate the security camera footage to prove that he did not exit the vehicle;
moreover, the enhanced footage was not meaningfully exculpatory, as
it showed the petitioner wilfully and actively participating in criminal
activity, and it would not have had a significant impeachment effect at
trial because, although the enhanced footage contradicted the testimony
of the victim and another witness that it was the petitioner who exited
the vehicle, it was improbable that the jury would have doubted the
other aspects of their testimony merely because they confused the peti-
tioner’s and his coconspirator’s identities, given that the victim was
suffering from life-threatening gunshot wounds and the witness was
viewing the incident from a distance.
b. Evidence that, after the petitioner’s criminal trial, H was arrested and
convicted of forgery in the second degree would not have led to a
different result at a new trial, as all of the material activities performed
by H in connection with the petitioner’s criminal case occurred in the
presence of others, and the petitioner’s coconspirator was convicted at
a trial that occurred after H’s crimes were made known and through the
testimony of a different detective; moreover, evidence that H had been
charged with, but not convicted of, fabricating evidence in other criminal
cases, which the petitioner contended would support his theory that H
had switched the victim’s blood sample to produce a negative toxicology
test and, thus, avoid revealing that the victim’s perception of the events
was impaired by drugs, would not probably yield a different result at a
new trial in light of the other evidence establishing that the victim was
alert and oriented and that she provided accurate information immedi-
ately after the incident and after her subsequent surgery.
c. The trial court did not abuse its discretion in concluding that none
of the evidence or newly discovered evidence on which the petitioner
relied to demonstrate prosecutorial improprieties would be material at
a new trial, and nothing in the record suggested that that conclusion
was debatable among jurists of reason, that a court could have resolved
the claim in a different manner, or that there were any questions that
deserve further proceedings.
Argued May 6, 2020—officially released February 26, 2021**

Procedural History

Amended petition for a new trial following the peti-
tioner’s conviction of the crimes of attempt to commit
murder, conspiracy to commit murder, kidnapping in
the first degree, conspiracy to commit kidnapping in
the first degree, sexual assault in the first degree, con-
spiracy to commit sexual assault in the first degree,
assault in the first degree, conspiracy to commit assault
in the first degree, and criminal possession of a firearm,
brought to the Superior Court in the judicial district
of Hartford and tried to the court, Hon. Edward J.
Mullarkey, judge trial referee, who, exercising the pow-
ers of the Superior Court, rendered judgment denying
the petition, from which the petitioner appealed to the
Appellate Court, which dismissed the appeal; there-
after, the court, Hon. Edward J. Mullarkey, judge trial
referee, denied the petitioner’s request for leave to file
a late petition for certification to appeal, and the peti-
tioner appealed to the Appellate Court, Keller, Moll and
Bishop, Js., which dismissed the appeal; subsequently,
the petitioner, on the granting of certification, appealed
to this court. Affirmed.
Dante R. Gallucci, assigned counsel, for the appel-
lant (petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Donna Mambrino, senior
assistant state’s attorney, and Gail P. Hardy, former
state’s attorney, for the appellee (state).
 Opinion

ECKER, J. The petitioner, James A. Mitchell, appealed
from the trial court’s denial of his request for leave to
file a late petition for certification to appeal from the
court’s judgment denying his petition for a new criminal
trial on the ground that the petitioner’s claims were
‘‘meritless and too late.’’ The Appellate Court rejected
the petitioner’s claim that the trial court improperly
considered the merits of the petition, rather than the
reasons for the delay or any other factors relevant to
permitting a late filing, and dismissed the appeal. See
Mitchell v. State, 188 Conn. App. 245, 247, 204 A.3d
807 (2019). We conclude that the trial court abused its
discretion by failing to engage in the proper analysis
to determine whether to excuse the late petition for
certification. We further conclude, however, that the
trial court acted within its discretion when it deter-
mined that the petition did not raise issues warranting
certification and, therefore, affirm the Appellate Court’s
judgment dismissing the petitioner’s appeal on this
alternative basis.
I
The record reveals the following procedural history
culminating in the present appeal. Following a jury trial,
the petitioner was convicted of attempt to commit mur-
der in violation of General Statutes §§ 53a-8, 53a-49 (a)
and 53a-54a (a), conspiracy to commit murder in viola-
tion of General Statutes §§ 53a-48 (a) and 53a-54a (a),
kidnapping in the first degree in violation of General
Statutes §§ 53a-8 and 53a-92 (a) (2) (A), conspiracy to
commit kidnapping in the first degree in violation of
§§ 53a-48 and 53a-92 (a) (2) (A), sexual assault in the
first degree in violation of General Statutes §§ 53a-8
and 53a-70 (a) (1), conspiracy to commit sexual assault
in the first degree in violation of §§ 53a-48 and 53a-70
(a) (1), assault in the first degree in violation of General
Statutes §§ 53a-8 and 53a-59 (a) (5), conspiracy to com-
mit assault in the first degree in violation of §§ 53a-48
(a) and 53a-59 (a) (5), and criminal possession of a
firearm in violation of General Statutes (Rev. to 2003)
§ 53a-217 (a) (1).1 See State v. Mitchell, 110 Conn. App.
305, 307–308, 955 A.2d 84, cert. denied, 289 Conn. 946,
959 A.2d 1012 (2008). The trial court, Mullarkey, J.,
imposed a total effective sentence of fifty-seven years
imprisonment. Id., 310. The Appellate Court affirmed
the petitioner’s conviction on direct appeal. Id., 308, 329.
The petitioner subsequently sought postconviction
relief by way of a petition for a new trial and a petition
for a writ of habeas corpus. The petitioner was repre-
sented by the same attorney in both proceedings. Trial
proceeded first on the later filed habeas petition. The
habeas court, Cobb, J., denied the petition and there-
after granted the petitioner’s petition for certification
to appeal pursuant to General Statutes § 52-470 (g). The
Appellate Court affirmed the habeas court’s judgment.
Mitchell v. Commissioner of Correction, 156 Conn.
App. 402, 404, 421, 114 A.3d 168, cert. denied, 317 Conn.
904, 114 A.3d 1220 (2015).
Trial then commenced on the petition for a new trial,
before the same judge who had presided over the peti-
tioner’s criminal trial.2 On August 22, 2016, the trial
court, Hon. Edward J. Mullarkey, judge trial referee,
rendered judgment denying the petition. On September
12, 2016, the petitioner filed a request for an extension
of time to file his appeal, which the trial court granted
on September 13. The petitioner then filed his appeal
within the extended deadline.
When the petitioner filed the appeal from the trial
court’s denial of his petition for a new trial, he did so
without first obtaining certification to do so in accor-
dance with General Statutes § 54-95 (a),3 which provides
that certification to appeal shall be obtained ‘‘within
ten days after the judgment is rendered . . . .’’ See
Santiago v. State, 261 Conn. 533, 543–44, 804 A.2d 801
(2002). That appeal had been pending for almost one
year when, on September 5, 2017, the Appellate Court
notified the petitioner that the requisite certification to
appeal was lacking. On September 8, 2017, prior to the
hearing in the Appellate Court to show cause why his
appeal should not be dismissed, the petitioner filed in
the trial court a request for leave to file a petition for
certification to appeal, to which the petition for certifi-
cation was appended. To explain his failure to seek
certification within the statutory time limitation, the
petitioner alleged in that request that, ‘‘[a]lthough analo-
gous to a petition for certification to appeal in a habeas
corpus case, the petitioner was not provided with a
written notice of appeal procedures via [Judicial
Branch] form JD-CR-84, as is the custom in habeas
corpus cases . . . .’’ The respondent, the state of Con-
necticut,4 filed an opposition to the request. Its opposi-
tion cited the one year delay in seeking certification
and the frivolousness of the grounds raised in the peti-
tion for a new trial. Before argument was heard on the
request, the Appellate Court dismissed the petitioner’s
appeal for failure to obtain certification in compliance
with § 54-95 (a).
Argument proceeded in the trial court on the petition-
er’s request for leave to file the petition for certification
to appeal. The court orally denied the request at the
conclusion of the hearing and subsequently issued a
written decision. The decision noted the ten day statu-
tory time limit prescribed for seeking certification to
appeal but did not address any particular facts regarding
the petitioner’s excuse for failing to meet that require-
ment or the significance of the procedural nonconfor-
mity. Instead, it summarized reasons why the court
previously had determined that the principal evidence
on which the new trial petition relied would not have
changed the outcome had such evidence been available
at the criminal trial. It then concluded that the petition-
er’s claims were ‘‘meritless and too late.’’
The petitioner appealed to the Appellate Court, claim-
ing ‘‘that the [trial] court abused its discretion in denying
his request because the court, in considering the length
of the delay in filing the request, did not consider the
reasons for the delay or any other factors relevant to
permitting a late filing but, rather, addressed the merits
of the petitioner’s appeal.’’ Mitchell v. State, supra, 188
Conn. App. 247. The Appellate Court dismissed the
appeal. Id. It reasoned that, ‘‘although the petitioner is
correct that [the trial court] referenced the merits of
the petitioner’s claims on appeal, it also made clear that
its decision was based in large part on the petitioner’s
delay . . . .’’ Id., 250. The Appellate Court acknowl-
edged that the petitioner’s request for leave had attrib-
uted the delay to not having been provided with a
written notice of appeal procedures but concluded that
this fact could not excuse the delay because no such
notice was required and, even if it were, the failure to
afford that notice would not operate as a waiver of the
certification requirement. Id. The Appellate Court also
acknowledged that the trial court never expressly
addressed the notice issue but opined that, ‘‘by consid-
ering the length of the petitioner’s delay, the court
afforded due regard to the reasons for the delay, and,
thus, the court’s denial of the petitioner’s request for
leave to file a late petition for certification to appeal
was not an abuse of discretion.’’ Id.
We granted the petitioner’s petition for certification
to appeal to this court to decide whether the Appellate
Court correctly concluded that the trial court did not
abuse its discretion in denying the petitioner’s late peti-
tion for certification to appeal. See Mitchell v. State, 331
Conn. 920, 205 A.3d 567 (2019). The threshold question
raised by the certified issue is whether the trial court
improperly ignored considerations relevant to assessing
whether to excuse a late request for certification to
appeal. Because we answer that question in the affirma-
tive, we also consider whether the trial court’s decision
could be sustained on the basis of its determination that
the petition for a new trial raised no claims warranting
appellate review. We conclude that this latter determi-
nation was not an abuse of discretion.
II
The petitioner contends that the trial court abused
its discretion when it denied his request for leave to
file the petition for certification because that decision
was not made in accordance with this court’s direction
in Santiago v. State, supra, 261 Conn. 543. He argues
that, in assessing the length of the delay, the trial court
improperly failed to discount the period during which
he was pursuing the appeal from the denial of his peti-
tion. This argument was raised at the hearing before
the trial court and in the petitioner’s Appellate Court
brief, but it was not addressed by the Appellate Court.
The petitioner also renews the argument that was
rejected by the Appellate Court, namely, that the trial
court improperly considered the merits of the petition
for certification rather than the reasons for delay and
other factors relevant to the timeliness of his request
for certification. We agree, in part, with the petitioner’s
second argument.
A petition for a new trial, like a petition for a writ
of habeas corpus, provides a ‘‘critical procedural mech-
anism for remedying an injustice.’’ Seebeck v. State, 246
Conn. 514, 531, 717 A.2d 1161 (1998). If a new trial
petition is denied, there is a statutory right to appeal,
subject to this condition: ‘‘No appeal may be taken from
a judgment denying a petition for a new trial unless,
within ten days after the judgment is rendered, the judge
who heard the case or a judge of the Supreme Court
or the Appellate Court, as the case may be, certifies
that a question is involved in the decision which ought
to be reviewed by the Supreme Court or by the Appellate
Court.’’ General Statutes § 54-95 (a).
The legislature adopted certification requirements to
eliminate frivolous postconviction appeals. Seebeck v.
State, supra, 246 Conn. 531. Certification requirements
were concurrently adopted for appeals from the denial
of a habeas petition and appeals from the denial of a
new trial petition. Id., 530; see also 7 S. Proc., Pt. 5,
1957 Sess., pp. 2936–40, remarks of Senator Elmer S.
Watson. Both schemes prescribe a ten day period after
judgment is rendered for filing the petition for certifica-
tion. See General Statutes §§ 52-470 (g) and 54-95 (a).
To determine the contours of the requirements set
forth in § 54-95, this court has looked to the more devel-
oped body of habeas case law considering the certifica-
tion requirement in § 52-470. See, e.g., Santiago v. State,
supra, 261 Conn. 537–40; Seebeck v. State, supra, 246
Conn. 529–33. We held in Seebeck that the legislature
did not intend for the certification requirement to limit
the jurisdiction of the appellate tribunal but only to
define the scope of appellate review. See Seebeck v.
State, supra, 533. We also concluded that the same
standard of review applied under both statutes, namely,
whether the trial court clearly abused its discretion
in denying the request for certification to appeal. Id.,
533–34. In Santiago, we concluded that, although the
certification requirement is not jurisdictional in nature,
it is nonetheless a mandatory prerequisite to appeal
from the denial of a new trial petition because of the
essential purpose that certification serves. See Santiago
v. State, supra, 539–40. We further held that, because
this requirement serves important public and institu-
tional policy objectives independent of, and paramount
to, the state’s particularized interest in any specific
case—namely, the conservation of judicial resources—
it is not subject to waiver due to the state’s failure to
move to dismiss the appeal within the time limit pre-
scribed for the dismissal of nonjurisdictional defects
under our rules of practice. See id., 543–44, citing Prac-
tice Book § 66-8.
Although Santiago refused to countenance abject
noncompliance with the certification requirement, this
court recognized in that case that noncompliance was
a defect that could be cured even after the statutorily
prescribed time limit. We observed: ‘‘In the event that
the petitioner does seek certification to appeal from
the judgment of the trial court denying his petition for
a new trial, that court will be required to decide whether
to excuse the petitioner’s delay in filing his petition for
certification to appeal . . . with due regard to the
length of the delay, the reasons for the delay, and any
other relevant factors. In considering the length of the
delay, the trial court should be mindful of the fact that
most of that delay is attributable to the petitioner’s
efforts to seek direct appellate review from the judg-
ment denying his petition for a new trial. Because the
procedural avenue followed by the petitioner in [Santi-
ago] appears to have raised an issue of first impression
in this state, we do not believe that the delay resulting
from the appellate litigation of that issue should be
weighed heavily, if at all, against the petitioner.’’5 (Cita-
tion omitted; emphasis added.) Id., 545 n.18. We noted
that the decision whether to entertain an untimely
request for certification to appeal would be a matter
left to the trial court’s discretion but again underscored
that, ‘‘[i]n exercising that discretion, the court should
consider the reasons for the delay.’’ Id., 544–45 n.17.
The present case provides our first opportunity since
Santiago to consider a trial court’s exercise of discre-
tion to deny leave to file a late petition for certification
under § 54-95.6 Our consideration of this issue is subject
to the general principle that ‘‘every reasonable presump-
tion should be given in favor of the correctness of the
court’s ruling.’’ (Emphasis added; internal quotation
marks omitted.) Alliance Partners, Inc. v. Voltarc Tech-
nologies, Inc., 263 Conn. 204, 210, 820 A.2d 224 (2003).
A presumption of correctness will not carry the day
when there is evidence that the trial court failed to
follow the applicable law. See, e.g., Rosenblit v.
Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1988); Disci-
plinary Counsel v. Parnoff, 158 Conn. App. 454, 470,
119 A.3d 621 (2015), aff’d, 324 Conn. 505, 152 A.3d 1222
(2016). In particular, it is an abuse of discretion to rely
on ‘‘improper or irrelevant factors’’; (internal quotation
marks omitted) Georges v. OB-GYN Services, P.C., 335
Conn. 669, 687, 240 A.3d 249 (2020); accord State v.
Holley, 327 Conn. 576, 628, 175 A.3d 514 (2018); or to
fail to consider the reason for an untimely filing, if one
is advanced by the petitioner. See Roberto v. Honeywell,
Inc., 33 Conn. App. 619, 625–26, 637 A.2d 405, cert.
denied, 229 Conn. 909, 642 A.2d 1205 (1994); Segretario
v. Stewart-Warner Corp., 9 Conn. App. 355, 362, 519
A.2d 76 (1986); see also Alvarado v. Commissioner of
Correction, 75 Conn. App. 894, 895–96, 818 A.2d 797
(rejecting argument that trial court had affirmative duty,
sua sponte, to inquire into reasons for untimely petition
for certification to appeal), cert. denied, 264 Conn. 903,
823 A.2d 1220 (2003).
In addition to these general principles, one further
consideration specific to petitions for a new trial bears
on the trial court’s treatment of an untimely request for
certification under § 54-95. In the intervening period
since Santiago, this court has made clear that, because
there is no constitutional or statutory right to counsel
in connection with a petition for a new trial, there is
no right to effective assistance of counsel in such a
proceeding. See Breton v. Commissioner of Correction,
325 Conn. 640, 701–702, 159 A.3d 1112 (2017). What this
means for present purposes is that, if a request for
certification to appeal is untimely filed due to counsel’s
negligence, and the delay is not excused, the petitioner
has no recourse in any forum. His appellate rights are
forfeited, and we are unaware of any means under cur-
rent law by which he can seek relief for counsel’s inef-
fective assistance in the loss of a potentially meritorious
appeal.7 The irremediable and absolute character of
the forfeiture in new trial proceedings resulting from
a lawyer’s failure to comply with a nonjurisdictional
time limitation does not compel excusal of every
untimely request for certification to appeal. But it does
elevate the importance of the trial court’s obligation to
give ‘‘due regard to the length of the delay, the reasons
for the delay, and any other relevant factors’’; (emphasis
added) Santiago v. State, supra, 261 Conn. 545 n.18;
and call for a reviewing court to ensure that the record
fairly reflects that this obligation has been met. Cf.
Alliance Partners, Inc. v. Voltarc Technologies, Inc.,
supra, 263 Conn. 211 (discretion vested in trial court
‘‘imports something more than leeway in decision mak-
ing and . . . should not impede or defeat the ends of
substantial justice’’ (internal quotation marks omit-
ted)).
With this observation and Santiago’s directive in
mind, we review the trial court’s memorandum of deci-
sion in the present case denying the petitioner’s request
for leave to file the late petition for certification. The
trial court’s decision began by reciting the mechanisms
through which the petitioner unsuccessfully had sought
a new trial: a direct appeal, a habeas petition, and a
petition for a new trial. The trial court noted the sub-
stantial overlap in the issues raised in the habeas and
new trial petitions, ‘‘with the addition of an unsubstanti-
ated claim of newly discovered evidence.’’ It then briefly
summarized the reasons why it had rejected the princi-
pal claim in the petition for a new trial regarding secu-
rity camera still frames and videotape capturing certain
parts of the incident giving rise to the criminal charges.
 The trial court then turned to the requirement to obtain
certification to appeal, stating: ‘‘[Section] 54-95 (a)
required the petitioner to file within ten days after the
judgment is rendered. [The] court, in good conscience,
cannot find that the issue(s) raised ought to be reviewed
by a higher court. Santiago v. State, [supra, 261 Conn.
533].’’ This conclusion was followed by an explanation
that apparently referred back to the court’s earlier dis-
cussion regarding the lack of merit to the security cam-
era issue: ‘‘Similarly, claims concerning former [Hart-
ford Police Detective] Alfred Henderson’s posttrial
arrest would not have had any effect on the petitioner’s
jury trial. The petitioner’s coconspirator [Travis Hamp-
ton] was tried by the same court four months after
the petitioner. Unlike the petitioner, Hampton did not
testify and admit [to] being at the scenes of the crimes.
He was convicted of nine felonies in a case in which a
different detective testified. State v. Hampton, 293
Conn. 435 [988 A.2d 167] (2009). The petitioner’s claims
are meritless and too late. Iovieno v. Commissioner of
Correction, 242 Conn. 689 [699 A.2d 1003] (1997).
‘‘Request denied.’’ (Emphasis added.)
We conclude that the trial court’s ruling, although ade-
quate in certain respects, fails to fully comport with our
direction in Santiago.
With respect to Santiago’s first requirement, which
instructs the trial court to give due consideration to the
length of the delay, the only reference to this factor in
the trial court’s decision is its acknowledgement of the
statutorily prescribed time limit and its conclusion that
the petitioner’s claims are ‘‘meritless and too late.’’8
(Emphasis added.) Both parties agree that there is no
indication that the trial court gave any consideration
to the existence or circumstances of the appellate litiga-
tion when assessing the length of the delay, an issue
raised by the petitioner at the hearing before the trial
court. The petitioner argues that Santiago directed the
trial court to take the appellate litigation into account,
whereas the state argues that, under the present circum-
stances, the appellate litigation was not relevant to the
delay in seeking certification.
We do not entirely agree with either party’s position.
The state is correct that the appellate litigation in Santi-
ago, unlike in the present case, was in pursuit of an
issue of first impression that, if successful, could have
excused the failure to seek certification. See footnote
5 of this opinion. But this reasoning does not make the
course and duration of the appellate litigation per se
irrelevant in cases arising after Santiago. Other facts
relating to the appellate litigation were pertinent to
assessing the length of the delay in the present case.
Specifically, the petitioner’s counsel, evidently unaware
of the certification requirement in § 54-95 (a), filed what
otherwise would have been a timely appeal from the
denial of the new trial petition, having obtained an
extension of time to file that appeal.9 The trial court
granted that extension, notwithstanding the procedural
irregularity that ultimately returned the petitioner to
the trial court, and did so without alerting the petitioner
to the fact that his appeal could not proceed without
certification. The Appellate Court similarly granted the
petitioner an extension of time to file his appellate brief,
which he then filed in due course; the extension was
granted without any notification to the petitioner that
the appeal could not proceed without the missing certi-
fication. The Appellate Court thereafter granted the
state two extensions of time to file its brief but, again,
did not notify the petitioner until months later that
his appeal could not proceed without certification. No
doubt it was the petitioner’s responsibility to ensure
that he complied with the statutory requirements. None-
theless, the repeated failure of two different courts to
bring this defect to the petitioner’s attention, while at
the same time approving extension requests, as well as
the state’s decision to seek extensions of time for filing
its appellate brief rather than moving to dismiss the
appeal, could well have affected a trial court’s assess-
ment of the fairness of holding the petitioner strictly
accountable for the entire year’s delay in seeking certifi-
cation.10
Notwithstanding our concerns, we cannot say that
the trial court failed to give due regard to the length
of the delay under the circumstances presented. The
petitioner did not draw this particular aspect of the
appellate litigation to the trial court’s attention; instead,
he incorrectly assumed that Santiago suggested that
the trial court always should discount the period of
appellate litigation in assessing the length of the delay.
In the absence of any focused argument by the peti-
tioner, it was sufficient for the trial court to acknowl-
edge the statutory time limit and to state a conclusion
that the claims were ‘‘too late.’’
We reach a different conclusion with respect to the
question whether the trial court gave due regard to the
reason for the delay. As the Appellate Court recognized,
the petitioner did clearly assert a reason for the delay
in his request, namely, the lack of notice to the peti-
tioner of appellate procedures like the notice provided
in habeas appeals. The trial court is not entitled to a
presumption that it gave due consideration to this claim
under the circumstances presented. There is not a single
phrase or statement in the record, either during the
hearing on the petitioner’s request or in the trial court’s
decision, from which we reasonably could infer that
the trial court considered the proffered reason for the
delay. The Appellate Court’s conclusion to the contrary
rested on an untenable assumption—that the trial court
considered the reason for the delay when it considered
the length of the delay. This conclusion ignores that
the reason for the delay is a distinct, nontemporal factor
that must be considered under Santiago. It may be that
the longer the delay, the more compelling the reason
must be to excuse that delay. But, even under such a
rationale, consideration of the latter is not subsumed
by an assessment of the former in the absence of an
indication of any kind that the petitioner’s proffered
excuse was duly considered.
The record does not even reflect any indication that
the trial court understood that it was obligated, as
directed by Santiago, to give due regard to the reason
for the delay. The factors identified in Santiago were
never mentioned in the court’s decision or in its com-
ments at the hearing.11 Although the trial court was not
required to credit the reason offered by the petitioner,
it was required, at a minimum, to give some indication
that it had at least considered whether the proffered
reason excused the delay under the circumstances. See
Carter v. State, 194 Conn. App. 208, 215, 220 A.3d 886
(2019) (trial court’s order sufficiently demonstrated that
it had considered petitioner’s stated reason for delay
in filing petition, as required by Santiago, by stating
that ‘‘the petitioner has failed to establish good cause
for a delay of over four months after the expiration of
the appeal period’’ (internal quotation marks omitted));
cf. Worden v. Francis, 170 Conn. 186, 188, 365 A.2d
1205 (1976) (‘‘[w]ithout repeating all the considerations
mentioned by the trial court, it suffices to note that the
court fully realized the discretionary power it was called
upon to exercise and concluded that ‘[w]hile the court is
empowered to grant the motion [for a late substitution]
upon a finding of good cause, good cause has not been
shown by the plaintiff’ ’’); Kendzierski v. Goodson, 21
Conn. App. 424, 427, 574 A.2d 249 (1990) (trial court
did not ignore good cause requirement for termination
because, ‘‘[a]lthough the court did not explicitly use
the term ‘good cause,’ it is clear, from the context of
the court’s ruling and from its specific finding that the
plaintiff proved a desire for a higher rent, that its deci-
sion was based on the good cause requirement’’). It
is especially important to do so when, as here, the
consequences of an adverse determination involve the
permanent and irrevocable loss of the petitioner’s abil-
ity to seek relief.
It may well be appropriate for us to overlook the trial
court’s failure to consider the reason offered by the
petitioner for the delay if that reason could not have
provided a basis to excuse the untimely request for
certification, had it been considered. However, we are
not persuaded that the trial court, giving due consider-
ation to the reason proffered by counsel, would have
been compelled to deny the request under these circum-
stances.
The petitioner’s request alleged that, ‘‘[a]lthough anal-
ogous to a petition for certification to appeal in a habeas
corpus case, the petitioner was not provided with a
written notice of appeal procedures via [Judicial
Branch] form JD-CR-84, as is the custom in habeas
corpus cases . . . .’’12 The record indicates that, in his
earlier habeas proceedings in which he presumably was
afforded such notice, the petitioner filed a timely
request for certification to appeal. The petitioner did
not argue that there is legal authority requiring similar
notice in new trial petition proceedings; nor did he
argue that the statutory certification requirement was
ambiguous. He thus was effectively making an equitable
argument, i.e., that the custom of providing notice of
the certification requirement in habeas proceedings
demonstrates an awareness that it is an important pro-
cedural hurdle that could be overlooked in the absence
of special mention and that he was lulled into error by
his prior experience in his habeas case, in which he did
comply with the certification requirement after having
received notice.13
We have not previously considered what constitutes
an adequate reason to excuse delay in this context. The
petitioner’s attorney conceded at oral argument before
this court that, regardless of his lack of actual knowl-
edge of the statutory certification requirement, he had
a duty to ascertain the pertinent appeal requirements.
Attorney negligence generally has not been deemed to
constitute good cause for an untimely action in other
contexts. See, e.g., Georges v. OB-GYN Services, P.C.,
supra, 335 Conn. 691 (late appeal under Practice Book
§ 63-1); Alliance Partners, Inc. v. Voltarc Technologies,
Inc., supra, 263 Conn. 207–209 (same); Jaquith v.
Revson, 159 Conn. 427, 431–32, 270 A.2d 559 (1970)
(motion to open judgment of nonsuit rendered for lack
of timely compliance with court order); see also Percy
v. Lamar Central Outdoor, LLC, 147 Conn. App. 815,
819–20, 83 A.3d 1212 (motion to set aside default on
basis of attorney negligence), cert. denied, 311 Conn.
932, 87 A.3d 580 (2014). In the context of a late filed
petition for certification to appeal under § 54-95 (a),
however, we discern important distinguishing charac-
teristics that could persuade a trial court, in its discre-
tion, to consider an attorney’s negligence as a valid
excuse under the present circumstances. In particular,
the litigant lacks any meaningful remedy for his attor-
ney’s negligence if the delay is not excused, the attorney
otherwise diligently pursued the appellate litigation, the
courts and the state also apparently overlooked the
certification requirement when sanctioning extensions
of time to pursue the appeal in the absence of a request
for or grant of certification, neither the state nor the
trial court suggested that the delay resulted in any preju-
dice to the state or the court system,14 and a lengthy
term of imprisonment is at stake.
Other factors that have been considered in weighing
whether to excuse untimely actions in other contexts
have taken into account whether the delay was inten-
tional or for strategic advantage; see, e.g., State v.
L’Heureux, 166 Conn. 312, 319–20, 348 A.2d 578 (1974);
Meribear Products, Inc. v. Frank, 193 Conn. App. 598,
606, 219 A.3d 973 (2019); whether the delay could be
personally attributed to the client; see, e.g., Janulawicz
v. Commissioner of Correction, 310 Conn. 265, 274
n.11, 77 A.3d 113 (2013); Ramos v. Commissioner of
Correction, 248 Conn. 52, 61–62, 727 A.2d 213 (1999);
Langston v. Commissioner of Correction, 185 Conn.
App. 528, 532–33, 197 A.3d 1034 (2018), appeal dis-
missed, 335 Conn. 1, 225 A.3d 282 (2020); and whether
the delay caused prejudice to the opposing party. See,
e.g., Janulawicz v. Commissioner of Correction, supra,
274–75; Horton v. Meskill, 187 Conn. 187, 194, 445 A.2d
579 (1982); Meribear Products, Inc. v. Frank, supra,
606; Warner v. Lancia, 46 Conn. App. 150, 157, 698 A.2d
938 (1997). None of those concerns is implicated in the
present case.
We therefore conclude that the trial court abused its
discretion when it failed to accord due and proper con-
sideration to the reason for the delay in deciding whether
to excuse the untimely request for certification.15
III
Our decision to venture beyond the trial court’s pro-
cedural holding and to review the merits of the appeal
is made easier because there is no dispute that the trial
court itself reached a conclusion on the merits of the
petition for certification. This fact is clear not merely
from the court’s final pronouncement that the petition-
er’s claims are ‘‘meritless and too late’’ but by its state-
ment that, ‘‘in good conscience, [it] cannot find that the
issue(s) raised ought to be reviewed by a higher court,’’
which mirrors the statutory standard for certification.
See General Statutes § 54-95 (a) (‘‘the judge who heard
the case . . . certifies that a question is involved in
the decision which ought to be reviewed by the Supreme
Court or by the Appellate Court’’ (emphasis added)).
The trial court’s decision sets forth reasons to explain
this conclusion as to the principal grounds raised in
the petition.
Although the petitioner contends that the trial court
improperly considered the merits of his petition as a
basis to deny leave to file the petition for certification,
we ascribe a different intention to the court in making
that determination. We construe the court’s decision to
conclude, in effect, that (1) the request for certification
to appeal was untimely, and, therefore, it would not
grant leave to seek certification, and (2) alternatively,
even if it were to excuse the untimely request, it would
not grant certification to appeal. In light of our conclu-
sion in part II of this opinion, the first ground cannot
sustain the court’s decision. We therefore consider this
alternative ground.16 We conclude that the trial court
did not abuse its discretion in finding no merit to the
claims and affirm the judgment of the Appellate Court
on that basis.
 The petitioner sought a new trial on the basis of
newly discovered evidence, as well as ‘‘for other reason-
able cause . . . .’’ General Statutes § 52-270 (a). To
assess whether the trial court correctly concluded that
the petitioner raised no claims in his petition for a new
trial that warranted appellate review, we begin with the
evidence presented at his criminal trial to provide the
necessary context. See Shabazz v. State, 259 Conn. 811,
827, 792 A.2d 797 (2002) (when ruling on petition for
new trial, ‘‘[t]he trial court must always consider the
newly discovered evidence in the context of the evi-
dence presented in the original trial’’).
A
In the petitioner’s direct appeal from his conviction,
the Appellate Court set forth the following facts that
the jury reasonably could have found, which we have
supplemented with additional facts relevant to the pres-
ent appeal. ‘‘On August 23, 2003, following an evening
at a nightclub, the victim17 was dropped off at a friend’s
house in East Hartford. Wanting to return home, and
with her residence too distant to walk, the victim called
the [petitioner] for a ride [after she was unsuccessful
in getting a ride from several other friends]. The victim
chose to call the [petitioner] because she knew that
Denasha Sanders, the mother of one of the [petitioner’s]
children, had lived in the same building as the victim and
that the [petitioner] was frequently in the vicinity. . . .
‘‘The [petitioner] arrived driving a gold Nissan Altima
accompanied by another man, unknown to the victim
at the time, but later identified as . . . Hampton. The
victim agreed to go with the [petitioner] and Hampton
to downtown Hartford to get something to eat. [When
they arrived at the restaurant, the petitioner remained
in the car, speaking to Sanders on his cell phone, while
the victim and Hampton went into the restaurant. After
they returned to the car], the [petitioner] became violent
with the victim, striking her with his cell phone and
demanding to know the location of the victim’s brother
[who had been dating Sanders]. Out of fear that the
[petitioner] would harm her [brother], the victim lied
to the [petitioner] and told him that her brother was at
her grandfather’s house. The victim attempted to leave
the car, but the [petitioner] pulled her by the hair and
locked the doors. During this time, Hampton remained
in the backseat of the vehicle.
‘‘The [petitioner] subsequently determined that the
victim’s brother was not at her grandfather’s house. He
drove the victim and Hampton to his mother’s house
in Hartford and ordered the victim out of the car. The
victim briefly complied and then returned to the vehicle
while the [petitioner] and Hampton entered the house.
When the [petitioner] and Hampton returned, the three
proceeded to leave the area by car. The [petitioner]
apologized to the victim for hitting her and offered her
marijuana, which she accepted. Instead of driving the
victim [south on Market Street toward her home, how-
ever, the petitioner turned north on Market Street and
parked behind a building on Market and Pequot Streets,
on the opposite corner from a Citgo gas station]. The
[petitioner] told the victim he wanted to have sex with
her and proposed that they go to a hotel . . . .
‘‘The victim refused and got out of the car, intending
to walk home. The [petitioner] produced a shotgun,
which he gave to Hampton, who pointed the weapon
at the victim’s face. The [petitioner] and Hampton told
the victim to remove her pants. The victim [complied,
and] the [petitioner then] raped her vaginally from
behind [while Hampton pointed the shotgun at her
face]. When the [petitioner] was finished, he [regained
possession of the shotgun and demanded that] the vic-
tim . . . perform fellatio on Hampton. The victim com-
plied briefly, [but when she refused to continue]
Hampton [penetrated her vaginally for a moment], while
the [petitioner] . . . held the shotgun. [When Hampton
stopped, the] victim grabbed her pants . . . yelled at
the [petitioner] to let her leave [and promised that she
would not tell anyone what had happened]. The [peti-
tioner] told the victim she could [either] get into a
nearby dumpster or run. As the victim attempted to
run, the [petitioner] shot her in the side of the stomach.
The victim [ran across Pequot Street toward the Citgo
station but was] followed by Hampton, who now had
the shotgun. The [petitioner] pursued the victim in the
car and blocked her path. [The victim ran from the
Citgo station across Market Street and attempted to
hide behind a tree on Market Street, but Hampton found
her and shot her several times. At one point, she heard
the petitioner say to Hampton ‘[m]ake sure that bitch
is dead.’ The victim held her breath and attempted to
play dead. The petitioner and Hampton] then left the
scene [in the vehicle]. Shortly thereafter, [they] returned
briefly [stopped the vehicle close to the victim’s location
to see if she was dead] and then left the area again.
The victim [grabbed her left arm, which was almost
severed by a gunshot blast to her elbow, and] dragged
herself to the street, where she was found by a passing
driver. The police and paramedics were summoned,
and the victim was taken to Hartford Hospital for treat-
ment.’’18 (Footnote in original.) State v. Mitchell, supra,
110 Conn. App. 308–10.
The victim identified the petitioner as the perpetrator
shortly after her breathing tube was removed following
surgery. He was arrested and charged with attempt to
commit murder, conspiracy to commit murder, kidnap-
ping in the first degree, conspiracy to commit kidnap-
ping in the first degree, sexual assault in the first degree,
conspiracy to commit sexual assault in the first degree,
assault in the first degree, conspiracy to commit assault
in the first degree, and criminal possession of a firearm.
 At the petitioner’s criminal trial, the state offered
corroborating forensic and testimonial evidence to
establish the version of events described in the preced-
ing paragraphs, although no forensic evidence directly
implicated the petitioner. Among other things, the state
offered the testimony of two eyewitnesses, who heard
gunshots, saw a gold colored vehicle in pursuit of some-
one on foot, saw someone get out of the vehicle, and
watched the vehicle circle back to the victim before
leaving. The state also offered a videotape and still
photographs from security cameras positioned around
Travelers Tower near Market Street. These exhibits pro-
vided grainy images of a portion of the incident. The
state used this photographic evidence to prove, among
other things, that the petitioner’s vehicle stopped near
the victim’s final location and that someone emerged
from the vehicle to check to see whether the victim
was dead.
The petitioner testified at trial and admitted that he
was present at the scene. He asserted, however, that
he had no knowledge that Hampton was in possession
of a gun until Hampton started shooting, that Hampton
was the only shooter, and that the victim’s perception
of the events was impaired by drugs. The petitioner’s
testimony described a version of events casting Hamp-
ton as the lone criminal actor. According to the peti-
tioner, the victim produced and lit up some ‘‘dust’’
(marijuana laced with embalming fluid), which she and
Hampton shared in the car. After a stop at the petition-
er’s mother’s house, where the petitioner and the victim
had consensual, protected sex19 on the porch, the two
males and the victim left in the car. Hampton then
directed the petitioner to take them somewhere so he
and the victim could have sex. The victim just sat there
‘‘in a daze.’’ Hampton directed the petitioner to stop
the car on Market Street, where he and the victim exited
the car and went behind a building. When they emerged,
the victim, who was holding her pants in hand,
attempted to leave on foot rather than get back into the
car. Hampton then pursued the victim. The petitioner
moved the car near the Citgo station and then dozed
off until he was awakened by a loud noise, which he
later realized was a gunshot. When he saw that Hampton
was firing a gun at the victim, the petitioner attempted
to hit Hampton with the car but could not because he
encountered a curb. After Hampton got into the car,
the petitioner panicked and drove off.
In its closing argument, the state argued that the
eyewitness accounts and the photographic evidence
proved that the passenger got out of the car and shot
the victim and that the driver—the petitioner—got out
of the vehicle, looked at the victim lying on the ground,
and got back into the car.
The court instructed the jury that, for all of the sub-
stantive charges except unlawful possession of a fire-
arm, it could find that the petitioner had committed the
crimes as a principal or an accessory, or could find him
guilty on the basis of vicarious liability as Hampton’s
coconspirator under the Pinkerton doctrine.20 The jury
found the petitioner guilty of all of the crimes charged.
It found him guilty of the kidnapping charge as a princi-
pal or accessory and guilty of the assault and sexual
assault charges as a coconspirator under Pinkerton.21
B
‘‘[T]o obtain a new trial on the basis of newly discov-
ered evidence, the petitioner must establish that the
newly proffered evidence (1) is actually newly discov-
ered, (2) would be material in a new trial, (3) is not
merely cumulative, and (4) would probably produce a
different result in a new trial.’’ Jones v. State, 328 Conn.
84, 92, 177 A.3d 534 (2018), citing Asherman v. State,
202 Conn. 429, 434, 521 A.2d 578 (1987). ‘‘This strict
standard is meant to effectuate the underlying equitable
principle that once a judgment is rendered it is to be
considered final, and should not be disturbed by post-
trial motions except for a compelling reason.’’ (Internal
quotation marks omitted.) Skakel v. State, 295 Conn.
447, 467, 991 A.2d 414 (2010).
In his petition for a new trial, the petitioner alleged
that there was newly discovered evidence in the form of
(1) technological improvements to the security camera
videotape that had been shown to the jury, which made
clear that, contrary to the state’s claim at trial, it was
the vehicle’s passenger (Hampton), not the driver (the
petitioner), who exited the vehicle to approach the vic-
tim’s body, and (2) significant impeachment evidence
bearing on the credibility of Henderson, the lead detec-
tive, involving his posttrial arrest for official misconduct
in connection with other cases. The petition also alleged
as other reasonable cause for a new trial that the prose-
cutor had engaged in misconduct by not disclosing
exculpatory evidence relating to the videotape, criminal
charges brought against Henderson, and other matters,
and by adducing false testimony from the victim.
In its decision denying the petition for a new trial,
the court characterized the evidence against the peti-
tioner as ‘‘overwhelming.’’ It also pointed out that the
petitioner’s efforts to cast Hampton as the sole wrong-
doer ignored the obvious and immovable impediment
to the petitioner’s exculpation under this theory,
namely, the fact that the petitioner could have been
convicted on the basis of accessorial or Pinkerton liabil-
ity even if he, himself, had not assaulted or shot the
victim. The trial court determined that both the video-
tape and the evidence related to Henderson failed to
satisfy the Asherman test in multiple respects, and the
court emphasized in particular that neither claim met
the fourth prong of Asherman, as neither would proba-
bly produce a different result in a new trial. The court
rejected the claims of prosecutorial misconduct on the
grounds that the claims were undefined, unsupported
by evidence, and/or lacking in merit. It similarly con-
cluded that an issue not raised in the petition for a new
trial but pressed at the related evidentiary hearing—
purportedly suspicious circumstances surrounding the
belated testing of the victim’s blood sample that yielded
negative results for the presence of drugs—would not
affect the verdict.
As a threshold to our review of the merits, the peti-
tioner must establish that the trial court abused its
discretion in denying certification to appeal from the
court’s denial of his new trial petition. ‘‘A petitioner
satisfies that burden by demonstrating: [1] that the
issues are debatable among jurists of reason; [2] that
a court could resolve the issues [in a different manner];
or [3] that the questions are adequate to deserve encour-
agement to proceed further.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Seebeck v. State, supra,
246 Conn. 534; see id. (relying on framework adopted
in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860,
112 L. Ed. 2d 956 (1991), for analyzing certificate of
probable cause to appeal under federal habeas corpus
statute for petitions for certification to appeal under
§ 54-95 (a)).22
The petition for certification to appeal framed the
issue warranting review broadly: ‘‘Whether the trial
court erred in denying the petitioner’s petition for a
new trial.’’23 The petitioner’s original appellate brief, in
which he challenged the trial court’s decision denying
the new trial petition, focused exclusively on whether
each piece of evidence offered in support of his new
trial petition would have affected the verdict. The trial
court’s decision denying the petitioner’s request for
leave to file the petition for certification to appeal reiter-
ated that court’s view that the newly discovered evi-
dence was not sufficiently material to have an effect
on the verdict. We therefore similarly focus our discus-
sion on whether the trial court abused its discretion by
determining, in effect, that no court reasonably could
conclude that the newly produced evidence would prob-
ably produce a different result in a new trial.
‘‘The burden of proving the probability of a different
result is upon the [petitioner], and in determining that
issue the trial court exercises a discretion [that] cannot
be set aside unless its discretionary power has been
abused.’’ Johnson v. State, 172 Conn. 16, 17, 372 A.2d
138 (1976); cf. Jones v. State, supra, 328 Conn. 87 (recog-
nizing exception in which de novo review is appropriate
when petition for new trial is decided by judge who did
not preside over original trial and no fact-finding was
necessary because both parties agreed that new evi-
dence was fully credible). The petitioner must over-
come a high hurdle to establish such an abuse of
discretion. ‘‘To meet the fourth element of Asherman,
[t]he [petitioner] must persuade the court that the new
evidence he submits will probably, not merely possibly,
result in a different verdict at a new trial . . . . It is
not sufficient for him to bring in new evidence from
which a jury could find him not guilty—it must be evi-
dence [that] persuades the judge that a jury would find
him not guilty.’’ (Emphasis in original; internal quota-
tion marks omitted.) Jones v. State, supra, 93; see also
Skakel v. State, supra, 295 Conn. 467–68; cf. Henning
v. Commissioner of Correction, 334 Conn. 1, 24–25,
219 A.3d 334 (2019) (discussing less stringent standard
when newly discovered evidence involves knowing pro-
duction of false testimony).
When examining the trial court’s conclusion that the
new evidence did not meet this standard, it is important
to recognize that the trial judge, who also had presided
over the petitioner’s criminal trial, made an unchal-
lenged determination that the evidence against the peti-
tioner at the criminal trial was overwhelming. The judge
who presided over the petitioner’s habeas petition,
although not having the opportunity to assess the credi-
bility of the criminal trial witnesses, likewise character-
ized the state’s case as a strong one. Those assessments
presumably took into account the evidence previously
recited, as well as evidence that the petitioner knew
where the shotgun was hidden after the incident (a
location to which both the petitioner and Hampton had
access), evidence of sixty phone calls between the peti-
tioner and Hampton on the day of the incident and the
two days thereafter, and significant evidence demon-
strating consciousness of guilt. The trial court’s assess-
ment also finds strong support in its observation that
the petitioner’s claim regarding Hampton’s primary
responsibility fails to exonerate him due to accessorial/
Pinkerton liability.
We have fully reviewed the record. The trial court did
not clearly abuse its discretion in denying certification
to appeal.
1
We begin with the technologically enhanced security
camera videotape, which is indisputably clearer than
the version offered at the criminal trial. That videotape
displays more clearly the direction the vehicle was
heading when it stopped and thereby also makes clearer
that the passenger, and not the driver, emerged from the
vehicle, presumably to approach the critically wounded
victim. This fact is consistent with Henderson’s testi-
mony at the criminal trial about his observations of the
still frames taken from the original videotape shown to
the jury. It is inconsistent, however, with the testimony
of the victim, as well the testimony of a security guard
from a nearby building who had observed the events
from a distance, that the petitioner/driver came out of
the vehicle.
As the trial court noted in its decision denying the new
trial petition, a similar claim regarding this evidence had
previously been adjudicated in the habeas proceedings,
albeit through the lens of the petitioner’s claim of inef-
fective assistance of counsel. The habeas court’s con-
clusion, upheld on appeal, was that no prejudice
resulted from counsel’s alleged failure to adequately
investigate the videotape evidence to prove that the
driver did not exit the vehicle. See Mitchell v. Commis-
sioner of Correction, supra, 156 Conn. App. 414, 420–21.
That conclusion rested on the fact that the videotape
and still frames did not capture the entire incident (no
security cameras covered the area where the victim
claimed that the sexual assaults occurred and the first
shot was fired), the videotape and still frames were
presented to the jury, and Henderson had testified that
the still frames showed the passenger getting out of
the car. Id., 409–19. The habeas court also noted the
strength of the state’s case against the petitioner. Id.,
419–20.
To these observations we add that we would not
characterize as meaningfully exculpatory the part of
the incident that is captured in the enhanced videotape.
The enhanced videotape shows that the petitioner
brought the vehicle to a stop near the victim to allow
Hampton to exit the vehicle, which gave Hampton the
opportunity to inflict a fatal gunshot wound if the victim
was not already dead or mortally wounded. The funda-
mental import of the evidence does not change: the
petitioner wilfully and actively participated in the rele-
vant criminal activity by stopping the vehicle to allow
his passenger to ensure that the victim was dead.
We also are not persuaded that the enhanced video-
tape would have had a significant impeachment effect
at trial. See generally Adams v. State, 259 Conn. 831,
839, 792 A.2d 809 (2002) (‘‘[N]ew trials [typically] are
not granted upon newly discovered evidence which dis-
credits a witness unless the evidence is [both] vital to
the issues and . . . strong and convincing . . . . The
rule restricting the right to a new trial when one is
claimed on the basis of newly discovered evidence
merely affecting the credibility of a witness is necessary
because scarcely has there been an important trial . . .
[after which a] diligent search would not have discov-
ered evidence [to impeach] some witness . . . . With-
out such a rule, there might never be an end to
litigation.’’ (Citation omitted; internal quotation marks
omitted.)). Although the enhanced videotape could be
used to impeach the testimony of the victim and the
security guard that the driver exited the vehicle, it seems
exceedingly unlikely that this discrepancy would have
undermined the general credibility of either witness. At
the time the victim was approached by whoever exited
the vehicle, after all, she not only was suffering from
the physical effects of life-threatening shotgun wounds,
but also was attempting to observe her assailants’
actions without giving away that she was still alive. It
is farfetched to think that the jury would have doubted
other aspects of her testimony merely because she con-
fused the passenger for the driver as the man who
approached her to assess her condition after the shoot-
ing. The security guard’s misperception of the identity
of the person exiting the vehicle, likewise inconsequen-
tial, is most probably explained by the fact that the
vehicle was stopped in the opposite travel lane, so that
the passenger’s side of the vehicle would be on the side
where the driver normally would be.
We are not persuaded that the trial court’s findings
and conclusions as to the videotape evidence are debat-
able among jurists of reason, that a court could have
resolved this claim in a different manner, or that there
are any questions that warrant further proceedings. The
trial court did not abuse its discretion in denying certifi-
cation to appeal with respect to this issue.
2
We next consider the newly discovered evidence of
former Detective Henderson’s posttrial arrest and con-
viction. In support of this claim, the petitioner cited
Thomas v. State, 130 Conn. App. 533, 24 A.3d 12, cert.
denied, 302 Conn. 945, 30 A.3d 2 (2011), in which the
Appellate Court rejected a similar claim that newly dis-
covered evidence of Henderson’s arrest and conviction
required a new trial in that case. According to Thomas,
Henderson was arrested in 2006 and charged in a ten
count information with larceny in the first degree, forg-
ery in the second degree, fabricating physical evidence,
and tampering with a witness.24 Id., 537. He entered a
plea of nolo contendere to one of court of forgery in
the second degree. Id. The charges apparently arose
from criminal activity dating back to 2000 involving a
forgery scheme used by Henderson to obtain money
intended to compensate confidential informants. Id.,
539.
In the present case, the petitioner raised two claims
to explain how he was harmed by the state’s failure to
disclose evidence of Henderson’s illegal conduct. In his
petition, he contended that the evidence should have
been made available to him for impeachment purposes
to attack Henderson’s credibility as a witness. At trial
on the petition, he contended that the evidence sup-
ported his theory that Henderson had obtained a second
blood sample from the victim, which was used to pro-
duce the negative toxicology test.
The trial court agreed that this evidence could have
been used at the petitioner’s criminal trial to impeach
Henderson’s credibility but concluded that it was not
probable that a different result would occur if this evi-
dence was available.25 The court noted that Henderson
had undertaken all but two activities relating to the
petitioner’s case in the presence of others and that
neither of those two activities had proved to play a
material part in the petitioner’s conviction. It further
concluded that, because the petitioner’s coconspirator,
Hampton, was convicted at a trial that occurred after
Henderson’s crimes were made known, through the
testimony of a different detective, it was all but certain
that a similar substitution and result would occur in
the petitioner’s new trial. The trial court’s disposition
of the petitioner’s claim as to the general impeachment
effect of this evidence plainly was not an abuse of dis-
cretion.
The petitioner’s other theory as to the potential effect
of evidence of Henderson’s arrest, relating to the detec-
tive’s role involving the blood samples, requires some
explanation. A blood sample was taken from the victim
in 2003 as part of her rape kit. The kit was sealed and
placed in evidence with the Hartford Police Depart-
ment; no toxicology test was run at that time. In 2005,
after the petitioner’s criminal trial counsel sought a
court order to direct the state forensic laboratory to
perform a toxicology test on the blood sample, the
victim signed a ‘‘Consent for Toxicology Screen.’’ At
the hearing on the request, the state’s attorney acknowl-
edged that the blood sample ‘‘probably ha[d] not been
refrigerated’’ and ‘‘may not [have been] viable for testing
purposes.’’ After the court issued the order, defense
counsel wrote to Henderson asking him to deliver the
blood sample in the rape kit to the laboratory. The
following day, Henderson signed the rape kit out of
evidence. Forms from the forensic laboratory reflect
that the laboratory received two vials of blood. The
toxicology test detected no drugs or metabolites.
From these facts, the petitioner hypothesizes that the
evidence of Henderson’s criminal activity, if made
known to the jury, could have resulted in a different
outcome because it would have supported the petition-
er’s theory that the victim’s perception was impaired
from smoking ‘‘dust.’’ To reach this conclusion, the
petitioner relies on the following suppositions: (1) the
2003 blood sample was not viable for testing due to a
lack of refrigeration, (2) had the sample been viable, it
would have tested positive for the presence of the drugs,
(3) the 2005 consent form was executed to obtain a
second blood sample to ensure that the toxicology test
would not detect drugs in the victim’s blood, and (4)
because Henderson delivered the two vials of blood to
the laboratory and had been charged with (but not
convicted of) fabricating evidence in an unrelated case,
he had switched the 2005 blood sample for the 2003
sample.26 We are not persuaded.
There are many reasons why the evidence regarding
Henderson’s arrest does not give rise to a reasonable
probability of a different verdict on the basis of this
theory. Two stand out. First, the trial court found that
the record demonstrated that the sample that was tested
was the same one that was part of the rape kit, and the
petitioner has not pointed to anything in the record that
indicates otherwise. Contrary to the petitioner’s view,
the state’s attorney’s casual reference at the court hear-
ing to a singular ‘‘vial’’ of blood is not evidence that
misconduct was afoot when two vials were delivered
to the laboratory. Nor does the mere fact that the ‘‘Con-
sent for Toxicology Screen’’ form executed by the vic-
tim authorized ‘‘the collection . . . of blood samples’’
for the purpose of detecting the presence of drugs; the
form’s plural phrasing does not in any way tend to prove
that the state used that consent to obtain a second
sample. Second, there was compelling evidence from
which the jury probably would have concluded that
the victim’s drug use, even if it had occurred, did not
materially impair her perception. The victim admitted
that she had no idea whether the marijuana given to
her by the petitioner could have contained ‘‘dust’’ but
also testified that she had not noticed any difference
in how she felt after smoking the joint. When police
officers arrived on the scene shortly after the incident,
the victim provided them with the accurate color, make,
and model of the petitioner’s vehicle, accurate informa-
tion that it was a rental car, and accurate information
about the direction in which the vehicle left the scene.
The emergency department physician who treated the
victim upon her admission declined to order a toxicol-
ogy test because the physician saw no clinical evidence
that the victim was under the influence of drugs. The
physician testified that the victim appeared alert and
oriented, and the physician confirmed that impression
through testing.27 The victim told two physicians at the
hospital that she knew the person who had inflicted her
injuries, and she specifically identified the petitioner
as the perpetrator to the police as soon as her breathing
tube was removed following surgery.
Under these circumstances, the trial court did not
abuse its discretion in effectively concluding that no
court would conclude that evidence of Henderson’s
arrest and conviction probably would yield a different
result in a new trial.
3
The petitioner also sought a new trial on the ground
that the state withheld exculpatory evidence (i.e., a
Brady28 violation) and introduced false testimony from
the victim. See State v. McCoy, 331 Conn. 561, 598, 206
A.3d 725 (2019) (‘‘newly discovered Brady claims may
. . . be brought by way of a petition for a new trial’’);
see also In re Jonathan M., 255 Conn. 208, 239, 764
A.2d 739 (2001) (‘‘[t]he causes for which new trials may
be granted . . . are only such as show that the parties
did not have a fair and full hearing at the first trial; and
the words or for other reasonable cause, mean other
causes of the same general character’’ (internal quota-
tion marks omitted)). Specifically, the petitioner con-
tended that the prosecution suppressed (1) selective
portions of videotape and photographic evidence that
would have been inconsistent with the victim’s version
of events, (2) materials produced by Angelsea Critical
Evidence, the company hired by the state to assess the
security camera video and still frames and to produce
viewable copies, (3) Henderson’s malfeasances that
were occurring concurrently with his investigation of
the petitioner, (4) evidence relevant to whether a sec-
ond blood sample was taken, and (5) the dismissal of
charges pending against the victim in consideration for
her testimony. The petitioner also contended that the
prosecution presented false testimony from the victim
regarding the petitioner’s actions on Market Street.
To prevail on a Brady claim, the petitioner must show
that the evidence at issue was material, in the sense
that there is a reasonable probability that the result
would have been different had the evidence been dis-
closed.29 See Demers v. State, 209 Conn. 143, 150, 161,
547 A.2d 28 (1988). ‘‘[A] conviction obtained by the
knowing use of perjured testimony . . . must be set
aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury.’’
(Internal quotation marks omitted.) Henning v. Com-
missioner of Correction, supra, 334 Conn. 25.
In its decision denying the new trial petition, the trial
court concluded that all of the petitioner’s prosecutorial
impropriety claims failed because there was no evi-
dence or no newly discovered evidence that would be
material. With regard to the claims relating to the secu-
rity camera footage, the court found that the prosecu-
tion had provided the defense with a viewable copy of
the videotape, albeit belatedly, and the defense did not
request a continuance to investigate it further. With
regard to Henderson’s misconduct, the court rejected
the admissibility and materiality of evidence proffered
by the petitioner to show that Henderson had been
arrested in Massachusetts on domestic violence charges.
With regard to the dismissal of charges against the
victim, the court found that there was no evidence to
support the petitioner’s contention that the victim had
received inducements to testify. It noted that the state
had entered nolles on a domestic violence charge and
a motor vehicle charge against the victim in November,
2003, before preparations for the petitioner’s criminal
trial began.
We conclude that the trial court did not abuse its
discretion in concluding that none of the petitioner’s
prosecutorial impropriety claims warrants appellate
review. There is nothing in the record to suggest that
the trial court’s findings and conclusions are debatable
among jurists of reason, that a court could have
resolved this claim in a different manner, or that there
are any questions that deserve further proceedings. In
addition to the findings and conclusions of the trial
court, our previous discussion explains why most of
the evidence at issue would not likely result in a verdict
of not guilty. We also add, with respect to the nolles
of charges against the victim, that it is undisputed that
the victim identified the petitioner as one of her assail-
ants shortly after she came out of surgery, well before
there could have been any purported inducement to
testify. See State v. Ouellette, 295 Conn. 173, 186–87,
989 A.2d 1048 (2010) (noting that whether defendant
established necessary factual predicate to his claim that
state’s attorney did, in fact, promise to dismiss charges
against witness as part of plea agreement ‘‘is a fact
based claim to be determined by the trial court, subject
only to review for clear error’’).
The trial court did not abuse its discretion in conclud-
ing that certification to appeal should be denied.
Although we disagree with the Appellate Court’s ratio-
nale for dismissing the petitioner’s appeal, its decision
may be affirmed on this alternative basis.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** February 26, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The facts supporting the verdict are addressed in part III of this opinion.
2
By this time, Judge Mullarkey had reached the mandatory retirement
age of seventy and had become a judge trial referee.
3
General Statutes § 54-95 (a) provides in relevant part: ‘‘Any defendant
in a criminal prosecution, aggrieved by any decision of the Superior Court,
upon the trial thereof, or by any error apparent upon the record of such
prosecution, may be relieved by appeal, petition for a new trial or writ of
error, in the same manner and with the same effect as in civil actions. No
appeal may be taken from a judgment denying a petition for a new trial
unless, within ten days after the judgment is rendered, the judge who heard
the case or a judge of the Supreme Court or the Appellate Court, as the
case may be, certifies that a question is involved in the decision which ought
to be reviewed by the Supreme Court or by the Appellate Court. . . .’’
4
Although the petitioner named Sandra Tullius as an additional respon-
dent, that individual is not a party to this appeal.
5
The petitioner in Santiago had appealed from the denial of the petition
for a new trial without requesting certification to appeal. See Santiago v.
State, supra, 261 Conn. 536. After the appeal had been pending for approxi-
mately ten months, the state moved to dismiss the appeal due to this defect,
and the Appellate Court granted the motion. Id. On appeal to this court, the
petitioner argued that the certification requirement in § 54-95 (a) is not
jurisdictional and, accordingly, that the state had waived this defect by
failing to file its motion to dismiss within the time limit prescribed by
Practice Book § 66-8 for the dismissal of nonjurisdictional defects. Id., 537,
543. Had the petitioner in Santiago prevailed on this issue of first impression,
he would have been entitled to proceed with his appeal despite his failure
to seek certification to appeal.
6
Section 54-95 contains a novel feature that was not considered in Santi-
ago and that has not yet been considered by our appellate courts. Unlike
other statutes with certification requirements, § 54-95 vests authority equally
in the trial judge and appellate judges to certify the appeal. See General
Statutes § 54-95 (a) (vesting authority to certify appeal in ‘‘the judge who
heard the case or a judge of the Supreme Court or the Appellate Court, as
the case may be’’). Appellate certification authority also existed at one time
under our habeas statute, § 52-470, but has since has been eliminated. See
Public Acts 2002, No. 02-132, § 78. Similar authority continues to exist under
current federal habeas law. Under federal law, a circuit judge or a federal
court of appeals has authority to issue the certificate of appealability, both
in the first instance and in the event that a district court denies the certificate.
See 28 U.S.C. § 2253 (c) (2018); Fed. R. App. P. 22 (b).
 In neither Santiago nor the present case did the petitioner request certifi-
cation from the Appellate Court; nor did that court take upon itself the
prerogative to exercise its statutory certification authority. Cf. Mickens-
Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004) (noting that it was
proper for federal court of appeals to treat timely notice of appeal as request
for certificate of appealability and to grant certification on its own). Whether
this appellate certification authority affects the standard of review that we
apply to a trial court’s decision denying leave to file a late petition for
certification or denying certification was not considered in Santiago and
is not an issue that either party has asked us to consider in the present case.
7
Even in the habeas context—in which relief is available to remedy harm
caused by an attorney’s negligence—the gravity of the loss of discretionary
appellate review due to counsel’s failure to timely file a petition for certifica-
tion has been deemed an ‘‘exceptional [circumstance]’’ that warranted treat-
ing such conduct as prejudicial per se for purposes of establishing a claim
of ineffective assistance of counsel. See Iovieno v. Commissioner of Correc-
tion, supra, 242 Conn. 706–707.
8
Given that the only statement in the decision relevant to the length of
the delay was the trial court’s recitation of the statutory time limit, the
court’s use of the term ‘‘too late’’ could be understood as nothing more than
a nonevaluative truism, that is, a factual observation that the request for
certification was filed after the ten day statutory time limit. Such a statement
of fact, of course, would be the starting point for the due consideration
analysis required by Santiago but would not itself provide the necessary
substantive analysis. The alternative interpretation understands the phrase
‘‘too late’’ to embody an implied evaluation of the length of the delay as
excessive. We will assume, as the parties do, that the trial court considered
the length of the delay, at least in the sense that the court clearly was aware
of the fact that the certification request was filed approximately one year
after the new trial petition was denied.
9
By ‘‘timely,’’ we mean only that the appeal was filed within the period
prescribed under our rules of practice, as extended by the trial court. We
recognize that, because certification to appeal is a mandatory condition
precedent to an appeal, the appeal was defective in the absence of certifi-
cation.
10
Although the petitioner never raised this issue, we also question the
fairness of counting the entire year against the petitioner when it appears
that the Appellate Court had statutory authority to determine on its own
initiative whether certification to appeal should be granted. See footnote 6
of this opinion. The trial court alternatively could have considered the
appellate litigation as an independent ‘‘relevant factor’’ rather than as part
of its assessment of the length of the delay. There is no indication that it
did so.
11
The court’s citations to Santiago v. State, supra, 261 Conn. 533, and
Iovieno v. Commissioner of Correction, supra, 242 Conn. 689, do not fairly
suggest otherwise. The trial court cited those cases as support for proposi-
tions wholly unrelated to the petitioner’s proffered excuse for filing his
petition late, namely, those bearing on the merits of certification.
12
There is no statute or rule of practice that requires a habeas petitioner
to be given notice of the habeas appeal procedures. The first paragraph of
the Judicial Branch’s habeas appeal form referenced in the petitioner’s
request provides notice of both the requirement to seek certification to
appeal from a habeas court’s decision denying a petition for a writ of habeas
corpus and the time limit prescribed by statute for taking that action. See
Notice of Appeal Procedures (Habeas Corpus), CT Judicial Branch Form JD-
CR-84, available at https://www.jud.ct.gov/webforms/forms/CR084.pdf (last
visited February 24, 2021). The Judicial Branch currently does not have a
comparable notice form that is given to a party whose petition for a new
trial is denied.
13
In his petition for certification to appeal to this court, the caption to one
of the petitioner’s arguments asserted that notice of appellate procedures
is ‘‘mandatory.’’ Reading his argument in its entirety, however, indicates
that his position is not that there currently exists such a requirement but
that such a requirement should exist.
14
To the extent that one purpose of the time limit for requesting certifica-
tion may be to allow the trial court to reconstruct the reasons that led to
its denial of the petition for a new trial while its recall is fresh, there is no
indication in the present case that the delay in any way impeded the court’s
recall or evaluation of the merits.
15
The appeal as presented does not require us to decide whether it would
have been appropriate for the trial court to consider the merits of the appeal,
as an additional relevant factor, after giving due regard to the length of the
delay and the reason for the delay.
16
Both parties have addressed in their briefs to this court whether the
trial court’s conclusion as to the merits was correct. We note that this
alternative ground goes to the heart of the purpose of § 54-95 (a), which is
to determine whether the petition for a new trial raised any issue that
warrants appellate review. For the reasons explained in part II of this opin-
ion, we face a situation in the present case in which the trial court made
a determination regarding that substantive matter without engaging in a
proper analysis of the threshold procedural issue of whether to excuse the
petitioner’s untimely request for certification. A late request is not, however,
a jurisdictional bar to consideration of the merits. Lateness matters only to
the extent that it may prevent the petitioner from obtaining a ruling on the
merits of his petition. This unusual procedural posture allows us to review
the trial court’s merits determination.
Of course, if we were to infer from the fact that, by reaching the merits,
the trial court excused the lateness of the request for certification; see
Iovieno v. Commissioner of Correction, supra, 242 Conn. 700 n.6 (‘‘[o]nce
a court has decided to exercise its discretion and [to] consider an untimely
petition [for certification to appeal], it should proceed in the usual manner
to consider the merits of the petition’’); we necessarily would review the
merits of certification.
17
‘‘In accordance with our policy of protecting the privacy interests of
victims of sexual abuse, we do not identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-
86e.’’ State v. Mitchell, supra, 110 Conn. App. 308 n.1.
18
The victim sustained serious, permanent injuries as a result of the
incident. Each shotgun shell dispelled hundreds of small pellets, which
lodged in the victim’s head and body. She lost partial sight in one eye, the
use of one of her arms, and the ability to bear children.
19
No DNA evidence was recovered from the victim to identify her assail-
ants. There was no semen in the victim’s rape kit, but human seminal protein
fluid was found on the victim. There was testimony that, if such fluid does
not contain sperm, it will not contain DNA. A forensic criminologist testified
that the absence of semen on the victim could have resulted from medical
personnel cleaning the victim to insert her catheter and breathing tube.
20
In State v. Walton, 227 Conn. 32, 43, 45–46, 630 A.2d 990 (1993), we
recognized the principle of vicarious liability that the United States Supreme
Court articulated in Pinkerton v. United States, 328 U.S. 640, 647–48, 66 S.
Ct. 1180, 90 L. Ed. 1489 (1946), under which conspirators may be held liable
for criminal offenses committed by their coconspirators that are (1) within
the scope of the conspiracy, (2) in furtherance of it, and (3) reasonably
foreseeable as a necessary or natural consequence of the conspiracy.
21
The verdict form did not ask the jury to indicate the basis of liability
for the attempted murder charge.
22
The trial court’s decision in the present case denying leave to file the
late petition did not address Lozada explicitly. Nonetheless, the court’s
determinations that none of the petitioner’s claims ‘‘ought to be reviewed
by a higher court’’ and that the claims are ‘‘meritless’’ implicitly correspond
to a determination that none of the Lozada criteria was met. Neither party
claims otherwise.
23
The petition for certification also raised the issue of ‘‘[w]hether the trial
court erred in failing to admit proffered exhibits into evidence at trial.’’ We
do not separately address this issue. The trial court did not address it in its
decision concluding that the petitioner had raised no issues that warranted
certification, and the petitioner did not request an articulation on this issue.
It is not evident from the record that the trial court declined to consider
the exhibits at issue or, if it did, the basis for that decision. Ultimately, we
are persuaded that none of the exhibits at issue would have likely affected
the outcome of the case. We reach this conclusion for essentially the same
reasons that have led us to conclude that the trial court did not otherwise
abuse its discretion in determining that the petition for a new trial lacked
merit.
24
The records offered as exhibits in support of the petition for a new trial
in the present case indicate that Henderson was charged only with larceny
and forgery. Nothing in the record explains the discrepancy between this
exhibit and the facts recited in Thomas v. State, supra, 130 Conn. App. 537.
25
Although Henderson’s official misconduct occurred before the petition-
er’s criminal trial, the internal affairs investigation into Henderson’s conduct
did not commence until several months after the petitioner’s criminal trial
had concluded. The trial court made no finding as to whether there was
some basis on which this evidence could have been disclosed to the peti-
tioner during his trial.
26
This theory stemmed in part from a statement made by the victim to
the emergency medical technician who reported to the scene to transport
her to the hospital that she had been ‘‘dragged, drugged, and raped.’’ The
petitioner’s toxicology expert and the emergency medical technician opined
that certain conduct by the victim was consistent with the effects of smoking
‘‘dust’’ but also was consistent with the effects of trauma from excessive
blood loss.
27
The victim received the highest possible scores on all three parts of the
Glasgow Coma Scale, an objective test that assessed her motor skills and
verbal abilities, including whether the victim knew what was going on and
where she was, and whether she could answer questions correctly and
appropriately. The emergency department physician who administered the
test also testified: ‘‘I didn’t feel there was any alteration in her thinking or
mental status at all. I didn’t feel there was any clinical evidence that she
was under the influence of any drugs . . . and didn’t feel the necessity to
do [a toxicology test] at that time.’’
28
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
29
‘‘[A] trial court’s determination as to materiality under Brady presents a
mixed question of law and fact subject to plenary review, with the underlying
historical facts subject to review for clear error. . . . Because the trial
judge had the opportunity, however, to observe firsthand the proceedings
at trial, including the [examination of witnesses], our independent review
nevertheless . . . giv[es] great weight to the trial judge’s conclusion as to
the effect of nondisclosure on the outcome of the trial . . . .’’ (Citations
omitted; footnotes omitted; internal quotation marks omitted.) State v. Ortiz,
280 Conn. 686, 720–22, 911 A.2d 1055 (2006).