author: BORDEN, J.

text:
    ABDULLAH SHABAZZ v. STATE OF CONNECTICUT
    (SC 16523)
    Borden, Katz, Palmer, Vertefeuille and Zarella, Js.

      Argued November 29, 200
    officially released March 26, 2002

      William F. Gallagher, with whom was David C. McCarry, for the appellant (petitioner).

      Robert J. Scheinblum, assistant state’s attorney, with whom were Denise B. Smoker, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Mary Elizabeth Baran, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BORDEN, J.

The dispositive issue in this appeal is whether the trial court, in deciding this petition for a new trial on the basis of newly discovered evidence, properly engaged in a credibility assessment of the proffered newly discovered evidence in order to determine whether it was likely to produce a different result in the event of a new trial. The petitioner, Abdullah Shabazz, appeals from the trial court’s judgment denying his petition for a new trial following his conviction for murder. The petitioner claims that the trial court improperly engaged in a credibility assessment of the newly discovered evidence offered in support of his petition. We conclude, to the contrary, that the trial court’s action in this respect was proper. Accordingly, we affirm the trial court’s judgment.

The petitioner was convicted, after a jury trial, of one count of murder in violation of General Statutes § 53a-54a (a), and one count of carrying a dangerous weapon in violation of General Statutes § 53-206 (a). He thereafter filed a motion for a new trial, alleging that an eyewitness had come forward and had given a statement under oath regarding the events surrounding the crimes for which the petitioner had been convicted. According to the petitioner’s motion, this newly discovered evidence probably would result in a different verdict if presented to a jury in the course of a new trial.

The trial court, Licari, J., declined to rule on the motion, stating that the requested relief more appropriately should be pursued in an independent petition for a new trial. As a result, the petitioner filed this petition pursuant to Practice Book § 42-55, formerly § 904, and General Statutes § 52-270 (a). The action on the petition, however, was stayed pending resolution of the petitioner’s direct appeal from his conviction to this court. We affirmed the judgment of conviction in State v. Shabazz, 246 Conn. 746, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999). Thereafter, Hon. Anthony V. DeMayo, judge trial referee, heard the petition now at issue and found that the eyewitness testimony adduced in support thereof was not credible, and thus not likely to produce a different result in a new trial. Accordingly, the trial court rendered judgment denying the petition. This appeal followed.

The following facts regarding the substantive crimes committed by the petitioner, as well as the theories raised in his defense at trial, were previously set forth by this court in State v. Shabazz, supra, 246 Conn. 748-50. “On May 3, 1994, at approximately noon, the victim, Michael Stewart, had just completed using a pay telephone located on the New Haven green, when the [petitioner] approached the bank of telephones and began to use one of them. The victim turned toward the [petitioner] and said, Get off the phone. I beeped somebody. The [petitioner] ignored the victim and began to dial. The victim then slapped the [petitioner] in the face, the [petitioner] punched the victim, and a fistfight ensued.” (Internal quotation marks omitted.) Id., 748-49.

All of this was observed by an eyewitness, Monique McNeil, who testified on behalf of the state at trial. According to McNeil’s testimony, the petitioner appeared to be winning the fight when the victim temporarily escaped and reached into a nearby trash can. Id., 762. At this point, the petitioner produced a switchblade and the fight quickly escalated. Id. “[H]olding the victim so that he could not [get away, the petitioner] repeatedly stabbed the victim. When the victim collapsed to the ground, the [petitioner] paused momentarily and then continued to attack the victim with the knife while the victim was on the ground. The [petitioner] then sat on top of the victim, who was not fighting back and was coughing and bleeding, and continued to stab him with the knife until a New Haven police officer arrived and disarmed the [petitioner]. The victim was taken to Yale-New Haven Hospital, where he died approximately twelve hours later.

“At trial, the [petitioner] raised three theories of defense. He [first] claimed that he had acted in self-defense. This claim was based on his [own] testimony” that, at one point during the fight, the victim reached into a trash can to retrieve what the petitioner believed to be a gun. Id., 749. “He also claimed . . . that he had no intent to kill, and that the victim was stabbed accidentally as they tussled on the ground. Finally, the [petitioner] claimed, primarily based on the expert testimony of James Merikangas, a physician certified in both neurology and psychiatry, that he was entitled to the affirmative defense of extreme emotional disturbance so as to reduce his guilt to manslaughter. The jury rejected all of these theories of defense, and found the [petitioner] guilty of murder.” Id., 749-50.

In his petition for a new trial, the petitioner alleged that an eyewitness had come forward after the petitioner’s conviction with evidence “relevant and material to the issue of the [petitioner’s] guilt . . . and to his [claim] of self-defense.” An affidavit of the witness, Lorin Frazier, was attached to the petition, in which Frazier stated that he had met the victim on the New Haven green the day of the murder and observed the events leading up to his death.

According to his statement, Frazier and the victim frequently ran card games on the green in which they scammed unsuspecting, would be gamblers for money. Occasionally, these individuals would discover the fraud and demand their money back, whereupon Frazier and the victim would threaten to retrieve a gun hidden in a nearby trash can. There was no evidence that such a gun actually existed, and Frazier made no assertion to that effect.

Frazier further stated that he and the victim were present on the green on the day of the encounter in order to run another scam. At one point prior to the encounter with the petitioner, the two men left to purchase and sniff synthetic morphine base. The victim also imbibed a small bottle of peppermint schnapps. According to Frazier, the drugs and alcohol affected the victim’s demeanor, causing him to act in a “hyped up” and aggressive manner.

Upon returning to the green, the victim paged his brother for a ride to New Britain. While the victim waited for him to call back, the petitioner began to use the pay telephone. According to Frazier, the victim insisted that the petitioner hang up; when he refused, the victim struck the petitioner in the face. Soon thereafter, Frazier saw the petitioner pull a knife out of his jacket. The victim momentarily escaped from the petitioner and ran to a trash can, shouting that he was going to get a gun. According to Frazier’s statement, the victim dove so deeply into the trash can that his head and chest disappeared. The petitioner then caught up with the victim and began to inflict the fatal series of stab wounds.

The trial court held an evidentiary hearing regarding the petition for a new trial, in which four witnesses testified on behalf of the petitioner: George Lemieux, a private investigator; Patricia King, one of the petitioner’s trial attorneys; Germano Kimbro, a counselor for a substance abuse program in which Frazier participated; and Frazier. Lemieux and King testified regarding their independent attempts to identify and secure witnesses who may have been helpful to the petitioner’s defense at trial. Neither of their investigations had led to Frazier. Kimbro testified that, after the trial and during his participation in a drug treatment program, Frazier confided that he had witnessed the encounter between the petitioner and the victim; Kimbro then contacted the petitioner’s counsel to inform him of this. Frazier’s testimony at the hearing on the petition was consistent with his prior sworn statement.

The cumulative testimony of Lemeiux, King and Kim-bro was offered to show that Frazier’s existence as a witness to the incident was not known to the defense at the time of trial, despite the exercise of due diligence, and that his testimony therefore constituted newly discovered evidence. The petitioner argued, moreover, that Frazier’s testimony, in and of itself, substantiated his theory of self-defense and was therefore likely to produce a different result in the event of a new trial. The petitioner specifically pointed to Frazier’s statement that he had heard the victim shout that he was going into the trash can for a gun as corroborating his own trial testimony to the same effect. Moreover, according to the petitioner, Frazier’s statement supplies the only reasonable explanation for why the victim sacrificed his only chance at escape by stopping to reach into the trash can. The petitioner contended that Frazier’s testimony, coupled with his own statements, would constitute persuasive evidence that when the petitioner stabbed the victim, he did so under a reasonable belief that the victim was about to use deadly force in return. The petitioner also argued that Frazier’s testimony would render admissible certain testimony of his expert, Merikangas, which had been excluded at the original trial. This testimony consisted largely of Merikangas’ opinion, based on his review of the victim’s hospital records, that that victim “ ‘was, in all probability, the aggressor’ ” in the fight. State v. Shabazz, supra, 246 Conn. 757. At trial, the state objected to the offer of this testimony. The trial court sustained the objection, reasoning that: “(1) the evidence was not the kind of opinion evidence sanctioned [by this court in State v. Carter, 228 Conn. 412, 423, 636 A.2d 821 (1994), and State v. Miranda, 176 Conn. 107, 109-14, 405 A.2d 622 (1978), two cases relied on by the petitioner in advocating for the admission of Merikangas’ testimony]; (2) the evidence was cumulative because the state conceded that the victim was the initial aggressor in the fight; (3) the evidence was unduly inflammatory and prejudicial; and (4) even if otherwise admissible despite these reasons, the [petitioner] had not laid a sufficient foundation for the admissibility of the evidence.” State v. Shabazz, supra, 757-58.

In his brief to the trial court regarding the petition for a new trial, the petitioner claimed that Frazier’s statements rendered Merikangas’ proposed testimony relevant to the issue of whether the petitioner could have retreated from the encounter with complete safety. In the petitioner’s opinion, Frazier’s revelation that he and the victim had intimidated the “customers” of their card games by threatening to retrieve a gun from a nearby trash can explains the victim’s actions on the day of the encounter. The petitioner contended that such testimony would, therefore, have set the stage for Merikangas’ opinion that, because the victim was under the influence of several drugs, his aggressive nature was probably heightened, motivating him to try and intimidate the petitioner by bluffing about the gun. The petitioner argued that this testimony, coupled with Frazier’s statement that he had heard the victim refer to the gun during the course of the fight, would support his assertion that his actions were justified by a reasonable belief that the victim was about to use deadly force.

After hearing all of the evidence adduced in support of the petition, the trial court denied the requested relief. The court based its decision, in pertinent part, on its express finding that Frazier was not a credible witness, given his criminal record, history of drug abuse, and inconsistent testimony.

Before analyzing the petitioner’s claim on appeal, we note that, typically, we review a trial court’s decision with respect to a petition for a new trial for an abuse of discretion. See Kubeck v. Foremost Foods Co., 190 Conn. 667, 669-70, 461 A.2d 1380 (1983). This particular appeal, however, raises the issue of whether the trial court correctly applied the standard for determining whether to grant a petition for a new trial as set forth in Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987), to the petition at issue. Because this issue presents a question of law, our review is plenary. See Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000).

Both the petitioner and the state agree, as do we, that the trial court’s decision in this case was governed by the standard set forth in Asherman. Under Asherman v. State, supra, 202 Conn. 434, a court is justified in granting a petition for a new trial when it is satisfied that the evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative; and (4) is likely to produce a different result in the event of a new trial.

The roots of this test can be traced back as far as 1850, when this court first stated that a petition for a new trial will not be granted if the newly discovered evidence “could have been known before the trial, by great diligence” or if the evidence is “merely cumulative . . . .” Waller v. Graves, 20 Conn. 305, 310 (1850). In Parsons v. Platt, 37 Conn. 563, 564 (1871), we added the requirements that the evidence, in fact, be newly discovered; that it be material; and that, “if a new trial were granted a different result would be produced.” (Internal quotation marks omitted.) Id., 565. Finally, in Hamlin v. State, 48 Conn. 92, 93-94 (1880), we articulated the test in terms virtually identical to that which we later adopted in Asherman. See also Smith v. State, 141 Conn. 202, 208, 104 A.2d 761 (1954); Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433 (1955); Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959); Lombardo v. State, 172 Conn. 385, 391, 374 A.2d 1065 (1977); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983).

In addition to considering the specific elements articulated previously, we have held that a court’s decision on the petition should be guided by the more general principle that a new trial will be warranted on the basis of newly discovered evidence only where “an injustice was done and whether it is probable that on a new trial a different result would be reached.” (Internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 425-26, 641 A.2d 1356 (1994); Taborsky v. State, supra, 142 Conn. 623. Finally, we note that it is solely within the discretion of the trial court to determine, upon examination of both the newly discovered evidence and that previously produced at trial, whether the petitioner has established substantial grounds for a new trial. Asherman v. State, supra, 202 Conn. 434; Kubeck v. Foremost Foods Co., supra, 190 Conn. 669-70.

In the present case, the trial court first articulated the specific elements of the Asherman test and then meticulously applied each element to the facts and evidence before it. The petitioner contends, however, that the trial court misapplied the fourth element by improperly engaging in a credibility assessment of Frazier’s testimony in order to determine the likelihood that it would result in a different verdict in the event of a new trial. We disagree.

Prior case law confirms that a trial court must engage in some form of credibility analysis in order to determine, under Asherman, whether the newly discovered evidence offered in support of a petition is likely to produce a different result on retrial. See, e.g., Lombardo v. State, supra, 172 Conn. 391; Smith v. State, supra, 141 Conn. 208; State v. Weiner, 61 Conn. App. 738, 756 n.7, 767 A.2d 1220, cert. denied, 256 Conn. 902, 772 A.2d 600 (2001) (in analyzing petition for new trial, “it [is] necessary for the [trial] court to consider the credibility of the witnesses to determine whether it [is] probable that the testimony of those witnesses would result in a different verdict”); Johnson v. State, 36 Conn. App. 59, 68-69 n.12, 647 A.2d 373, cert. denied, 231 Conn. 946, 653 A.2d 827 (1994) (credibility analysis under Asherman’s fourth prong consistent with principle that petition for new trial is addressed to sound discretion of trial court); State v. Curley, 25 Conn. App. 318, 331, 595 A.2d 352, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991) (petition for new trial requires full hearing on merits to determine whether evidence exists that is “new and credible”); see also Turner v. Scanlon, supra, 146 Conn. 163 (newly discovered evidence not “so strong and convincing that a new trial would probably produce a different result”); Parsons v. Platt, supra, 37 Conn. 566 (certain new evidence offered in support of petition for new trial “entitled to no weight”).

In Lombardo v. State, supra, 172 Conn. 386, the petitioner sought a new trial after being convicted of selling a controlled substance in violation of General Statutes §§ 19-480 (a) and 19-452, now General Statutes §§ 2 la-277 and 21a-245. The newly discovered evidence presented in support of his petition consisted of the testimony of two witnesses tending to show that the petitioner had not participated in the illegal sale. Id., 389. The trial court denied the petition after finding that the testimony was cumulative, that no injustice had been done, and that it did not appear that a new trial with the additional testimony would result in a different verdict. Id., 389-90.

On appeal, this court observed that “[wjhether a new trial should be granted does not turn on whether the evidence is such that the jury could extend credibility to it. .. . The [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 evidence which persuades the judge that a jury would find him not guilty.” (Citations omitted; emphasis altered; internal quotation marks omitted.) Id., 390-91. This articulation of the petitioner’s burden of proof assigns to the trial court, in the first instance, the responsibility of evaluating the credibility of the evidence in order to decide properly whether a new trial would produce a different result. In elaborating on this point, we explicitly approved of Judge Cardozo’s concurring opinion in People v. Shilitano, 218 N.Y. 161, 180, 112 N.E. 733 (1916), wherein he stated that “a judge, faced with conflicting stories [on a petition for a new trial], should [not] abandon the search for truth and turn it over to a jury. . . . [Rather] it [is] the duty of the trial judge to try the facts, and determine as best he [can] where the likelihood of the truth lay. ... He [is] not at liberty to shift upon the shoulders of another jury his own responsibility.” (Internal quotation marks omitted.) Lombardo v. State, supra, 172 Conn. 391. Thus, Lombardo acknowledged that it is not only proper, but often necessary, for a trial court to assess the credibility of newly discovered evidence in the context of a petition for a new trial. Id.

This court’s opinion in Smith v. State, supra, 141 Conn. 208, also supports the notion that some type of credibility determination is required in evaluating a petition for a new trial based on newly discovered evidence. The basic facts and procedural posture of Smith are similar to those in the present case. In Smith, the petitioner sought a new trial after unsuccessfully appealing his conviction for murder. Id., 203. The petition was predicated on the testimony of another person that he, and not the petitioner, had helped to commit the murder in question. Id., 205. The trial court denied the petition on two grounds: (1) the petitioner had failed to exercise due diligence to procure the witness’ testimony at the time of trial; and (2) the witness’ testimony tending to exonerate the petitioner was “unworthy of credit, and . . . there was no reasonable ground for believing that on a new trial ... a jury would bring in a different or more favorable verdict.” Id., 207.

On appeal, this court determined that the trial court was not warranted in concluding that the evidence would have been discovered upon the exercise of due diligence because, although the witness had been available at the time of trial, there was no indication that he would have testified in an exculpatory manner. Id. More important for purposes of the present appeal, however, was our discussion of whether the trial court had abused its discretion in determining that the witness’ testimony would not be likely to change the result on a new trial. We acknowledged that the resolution of that issue “turn[ed] upon the correctness of the trial court’s . . . conclusion, that [the witness’] . . . story [was] utterly unworthy of credence. [For, if that] conclusion [was] correct, it follow[ed] that . . . since it should be presumed that no jury will believe an incredible story . . . the trial court [was] warranted in concluding that a new trial would not produce a different verdict.” Id., 208. After considering the witness’ criminal background, the several inconsistencies inherent in his testimony, and the fact that his testimony was contradicted both by other witnesses and his own conduct, we determined that “the trial court was fully justified in concluding that no credence could be given to [the witness’] story in so far as it purported to exculpate [the petitioner]. It [therefore] followfed] that the court’s further conclusions that it did not appear that an injustice had been done on the former trial and that [the witness’] evidence would not probably produce a different result on another trial were also correct.” Id., 214. Accordingly, we affirmed the judgment of the trial court. Id.

Although, as these cases demonstrate, we previously have established that a credibility determination is a necessary part of a trial court’s analysis under the fourth prong of Asherman, we never have defined the proper parameters of such a determination. In this regard, we note that the extent to which a trial court properly assesses the credibility of the newly discovered evidence is informed, in large part, by two well-defined and, often, competing interests. First, the state has a general interest in preserving final judgments of conviction that have been fairly obtained and in ensuring that appropriate deference is “given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility . . . .” (Internal quotation marks omitted.) Miller v. Commissioner of Correction, 242 Conn. 745, 793, 700 A.2d 1108 (1997). This interest is heightened, moreover, when the state is faced with the possibility of having to relitigate the question of the petitioner’s guilt or innocence in a second trial, “when its evidence . . . may be less reliable and persuasive than it was” originally. Id., 792. Second, the petitioner has an interest, shared by the state and the judiciary, in ensuring that a wrongful conviction does not stand. Id. Indeed, even in situations in which the ultimate question is not one of total guilt or innocence, the petitioner has an interest in ensuring that he is not wrongfully convicted of a more serious crime than is justified by the facts of the case.

Our formulation of the trial judge’s role in passing on the credibility of newly discovered evidence must strike the appropriate balance between these two interests. If, on the one hand, we were to limit the trial court solely to a determination of whether the newly discovered evidence would be admissible in a new trial and whether it might result in a different verdict, the trial court would be stripped of its legitimate fact-finding function on the petition and be relegated to the role of gatekeeper of the evidence. Such a result would render judgments of conviction unduly susceptible to collateral attacks, thereby giving insufficient weight to the state’s legitimate interest in finality. Alternatively, were we to hold that the trial court always acts as the final and sole arbiter of credibility in evaluating the evidence alleged to justify a new trial, we would be impeding the petitioner’s legitimate interest in establishing that a wrongful conviction does not stand. For example, there may be cases in which the trial court is justified in determining that the newly discovered evidence is sufficiently credible and of such a nature that, in order to avoid an injustice, a second jury, rather than the trial court itself, should make the ultimate assessment of its credibility.

We therefore conclude that, in order to give due weight and consideration to these important interests, and in order to provide sufficient flexibility to accommodate the wide variety of types of newly discovered evidence that may be offered in support of a petition for a new trial, trial courts should utilize the following approach when applying the fourth element of the Asherman test. The trial court must always consider the newly discovered evidence in the context of the evidence presented in the original trial. In so doing, it must determine, first, that the evidence passes a minimum credibility threshold. That is, if, in the trial court’s opinion, the newly discovered evidence simply is not credible, it may legitimately determine that, even if presented to a new juiy in a second trial, it probably would not yield a different result and may deny the petition on that basis. See Smith v. State, supra, 141 Conn. 208. If, however, the trial court determines that the evidence is sufficiently credible so that, if a second jury were to consider it together with all of the original trial evidence, it probably would yield a different result or otherwise avoid an injustice, the fourth element of the Asherman test would be satisfied.

Applying this standard to the present case, we conclude that the trial court did not overstep its bounds in assessing Frazier’s credibility. The court fully articulated its reasons for finding that he lacked credibility, and the petitioner does not challenge the substance of that assessment.

Nevertheless, the petitioner contends that the trial court may make such credibility determinations only when the newly discovered evidence consists of false testimony. In support of this theory, the petitioner asserts that there are, in our jurisprudence, two different standards for deciding petitions for new trials based on newly discovered evidence, one, which applies to evidence consisting of false trial testimony, such as a recantation or admission of perjury, pursuant to our decision in Pradlik v. State, 131 Conn. 682, 41 A.2d 906 (1945), and a second as established in Asherman v. State, supra, 202 Conn. 434, which applies to all other forms of newly discovered evidence. Under the Pradlik formulation, a new trial may be granted where “(a) [t]he court is reasonably well satisfied that the testimony given by a material witness is false . . . (b) . . . without it the jury might have reached a different conclusion . . . [and] (c) . . . the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.” (Emphasis in original; internal quotation marks omitted.) State v. Pradlik, supra, 687. According to the petitioner, under Pradlik, atrial court may only evaluate the credibility of newly discovered evidence when the petition for a new trial raises the issue of whether the testimony given at trial was false. The petitioner contends, therefore, that Asherman rather than Pradlik governed the decision in the present case, and, consequently, the trial court should not have assessed Frazier’s credibility. We disagree.

First, the cases that we have discussed previously that establish that a trial court may assess the credibility of newly discovered evidence in applying the fourth prong of the Asherman test contradict that notion that a credibility determination is exclusive to Pradlik. Second, the petitioner’s reliance on Pradlik is misplaced because the test set forth in that case was dictum. In our view, Pradlik cannot be read as establishing a separate standard for reviewing petitions based on false trial testimony, because such testimony was not at issue in that case. Although the petitioner in Pradlik had characterized the newly discovered evidence as a recantation; id., 683; we observed that, in fact, the evidence simply consisted of inconsistent statements that possibly could be used for impeachment purposes in the event of a new trial. Id., 685-87. Moreover, the majority of our case law both prior and subsequent to Pradlik has not differentiated among types of newly discovered evidence when reviewing a trial court’s decision on a petition for a new trial. Finally, because the interests implicated in a petition for a new trial remain the same irrespective of the nature of the newly discovered evidence at issue, we can conceive of no principled basis for maintaining two different tests. Thus, to the extent that Pradlik can be read as inconsistent with Asherman, we reject such a distinction.

The petitioner next urges us to adopt the reformulation of Asherman’s fourth prong, which was cited in Reilly v. State, 32 Conn. Sup. 349, 360, 355 A.2d 324 (1976), and Justice O’Sullivan’s dissenting opinion in Smith v. State, supra, 141 Conn. 216, whereby the trial court determines only whether there is a reasonable certainty that the newly discovered evidence will be admitted at a new trial and whether there is also a reasonable probability that the jury will accept it. We decline this invitation, however, because neither Reilly nor the dissenting opinion in Smith is binding upon this court, and because we are not persuaded by the rationale of those opinions. Furthermore, in our view, the standard advocated by the petitioner would set the bar too low for granting a new trial, and would not properly accommodate the competing interests that are implicated by a petition for a new trial. The standard that we adopt today appropriately balances all of the competing interests.

The judgment is affirmed.

In this opinion the other justices concurred.

       Following the trial court’s grant of permission to appeal pursuant to General Statutes § 54-95 (a), the petitioner appealed from the judgment of the trial court to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.

       The petitioner also claims that the trial court improperly: (1) determined that, even if the newly discovered evidence were credited, it would not likely produce a different result in the event of a new trial because it did not support the petitioner’s claim of selfidefense; (2) found that the evidence was contradicted by the autopsy results and other eyewitness testimony adduced at trial; and (3) concluded that the newly discovered evidence would not render the testimony of the petitioner’s expert, which had been excluded at trial, admissible. Because we conclude that the trial court correctly engaged in a credibility evaluation of the newly discovered evidence at issue, and because the petitioner does not challenge the court’s finding that such evidence was unworthy of belief, we need not reach these additional issues. To avoid any confusion, however, we note that the second issue articulated previously is not an indirect attack on the trial court’s fundamental credibility analysis. The court already had determined that the newly discovered evidence offered in support of the petition was not credible for a catalogue of reasons, prior to making the additional finding that it was contradicted by the majority of evidence produced by the state at trial. Because this latter finding was not part of the court’s initial credibility determination, we need not review it on appeal.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53-206 (a) provides: “Any person who carries upon one’s person any BB. gun, blackjack, metal or brass knuckles, or any dirk knife, or any switch knife, or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, or stiletto, or any knife the edged portion of the blade of which is four inches or over in length, any police baton or nightstick, or any martial arts weapon or electronic defense weapon, as defined in section 53a-3, or any other dangerous or deadly weapon or instrument, shall be fined not more than five hundred dollars or imprisoned not more than three years or both. Whenever any person is found guilty of a violation of this section, any weapon or other instrument within the provisions of this section, found upon the body of such person, shall be forfeited to the municipality wherein such person was apprehended, notwithstanding any failure of the judgment of conviction to expressly impose such forfeiture.”
      Although the legislature has amended § 53-206 (a) since 1994, the time the crime was committed in this case, the changes are not relevant to this appeal. Reference herein is to the current revision of that statute.

       Practice Book § 42-55 provides: “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52-270. The judicial authority may grant the petition even though an appeal is pending.”

       General Statutes § 52-270 (a) provides in relevant part: “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. . . .”

       On direct appeal to this court, the petitioner claimed “that the trial court improperly: (1) precluded him from introducing evidence that the gross medical negligence of the hospital that treated the victim caused the victim’s death; (2) excluded evidence of the presence of the victim’s family at the trial; (3) excluded expert evidence of the victim’s character for violence, based on the presence in the victim’s body of drugs and alcohol; (4) excluded the [petitioner’s] spontaneous utterance immediately after the incident; and (5) denied his motion to disqualify the trial judge.” State v. Shabazz, supra, 246 Conn. 748.

       On appeal, we concluded that “even if we were to assume without deciding that the trial court abused its discretion in excluding the evidence, its exclusion constituted harmless error.” State v. Shabazz, supra, 246 Conn. 759.

       Our case law also indicates, however, that the rules governing a court’s decision on a petition for a new trial based on newly discovered evidence “are qualified in their application to a capital case in . . . light of the principle laid down in Anderson v. State, 43 Conn. 514, 517 [1876], that . . . where [a] human life is at stake, justice, as well as humanity, requires us to pause and consider before we apply those rules in all their rigor.” (Internal quotation marks omitted.) Taborsky v. State, supra, 142 Conn. 623.

       One of the witnesses had begun to testify in the underlying criminal trial, but ultimately had invoked his fifth amendment privilege against self-incrimination. Lombardo v. State, supra, 172 Conn. 388. The other witness had not testified previously. Id., 389.

       We note that such evidence may consist, for example, of the testimony of a newly discovered eyewitness, as in the present case; of newly discovered impeachment evidence; of newly discovered scientific evidence; of newly discovered expert testimony; or of recantation of the testimony of a prior witness, to name several types of such evidence.

       In fact, our research revealed that, to date, we have decided only one case involving a petition for a new trial based on recantation evidence, namely, Smith v. State, 139 Conn. 249, 93 A.2d 296 (1952). Following his conviction for murder, the defendant in Smith sought a new trial on the ground that an eyewitness who had testified for the state at trial had come forward and declared, under oath in a deposition, that her trial testimony had been false. Id., 251. The trial court had denied the petition, reasoning that “the plaintiff failed to prove (1) that the [witness’] testimony on the trial was false, (2) that without it the jury might have reached a different conclusion, or (3) that the element of surprise, under the circumstances, entitled him to a new trial.” Id. The petitioner appealed from the judgment of the trial court to this court. Although we affirmed the judgment, we did so, not by reference to Pradlik or the test enunciated therein, but rather by reference to the more general principle that “if upon reading the testimony [adduced at trial] ... in connection with the new testimony produced, no injustice is apparent and the newly discovered evidence is insufficient to render a different result upon a new trial probable, a new trial should not be granted.” (Citation omitted.) Id., 253; Gannon v. State, 75 Conn. 576, 583, 54 A. 199 (1903). In reaching our decision, we also noted that “[a] new trial will not ordinarily be granted because of the discovery of additional impeaching or discrediting testimony”; Smith v. State, supra, 251; especially where such testimony consists of something so inherently unreliable and untrustworthy as a recantation. Id., 252-53. Thus, even in the sole instance in which we have identified the nature of the newly discovered evidence at issue as falling within the category of “false trial testimony,” we have not expressly endorsed the test set forth in Pradlik.

       We note that, in reviewing a trial court’s action with respect to a petition for a new trial, the Appellate Court has, on occasion, differentiated among the type of newly discovered evidence involved and applied both the Asherman and Pradlik tests accordingly. See, e.g., Morant v. State, 68 Conn. App. 137, 802 A.2d 93 (2002); Channer v. State, 54 Conn. App. 620, 738 A.2d 202, cert. denied, 251 Conn. 910, 739 A.2d 1247 (1999); Johnson v. State, 36 Conn. App. 59, 647 A.2d 373 (1994). To the extent that those cases conflict with the rule and rationale set forth in this opinion, we reject them.

       The trial court in Reilly enunciated this test while rejecting the notion that it is proper for a trial judge to pass on the credibility of newly discovered evidence. “[The witness’] credibility ... is not for this court to determine. Concerning the issue of credibility, this court must decide only whether there is a ‘reasonable certainty that the evidence will be admitted at the new trial [and] also a reasonable probability that the jury will accept it.’ Smith v. State, [supra, 141 Conn. 216 (O’Sullivan, J., dissenting)]. It is up to the jury at the new trial to weigh [the witness’] credibility.” Reilly v.
        State, supra, 32 Conn. Sup. 360. Because Reilly and the dissent in Smith fail to recognize that a credibility determination is appropriate under Asherman and they relegate the trial court to the role of evidentiary gatekeeper, we decline to adopt their articulation of Asherman’s fourth prong.


source: Caselaw Access Project

license: Public Domain

text:
    TYRONE ADAMS v. STATE OF CONNECTICUT
    (SC 16405)
    Borden, Katz, Palmer, Vertefeuille and Zarella, Js.
    Argued November 29, 2001
    officially released March 26, 2002

      Denise B. Smoker, assistant state’s attorney, with whom were Robert J. Scheinblum, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Mary Elizabeth Baran, senior assistant state’s attorney, for the appellant (respondent).

      Elizabeth M. Inkster, senior assistant public defender, with whom, on the brief, was James J. Ruane, special public defender, for the appellee (petitioner).
   Opinion

BORDEN, J.

The respondent, the state of Connecticut (state), appeals from the judgment of the trial court granting the petitioner, Tyrone Adams, a new trial. After the unsuccessful appeal of his conviction for aiding and abetting manslaughter in the first degree, the petitioner had petitioned for a new trial based on the newly discovered testimony of Crystal Greene, which he claimed could be used to impeach the only eyewitness to the crime. The dispositive issue raised on appeal is whether the trial court improperly concluded that its decision on the petition was controlled, in large part, by our decision in State v. Valentine, 240 Conn. 395, 398, 692 A.2d 727 (1997), wherein we held that the trial court’s exclusion of Greene’s testimony in the trial of Daryl Valentine, the petitioner’s codefendant, constituted reversible error. More specifically, the state claims that by relying on our decision in Valentine, wherein we held that Greene’s testimony, if produced during the course of Valentine’s trial and believed by the jury, more likely than not would have affected the result therein, the trial court improperly failed to undertake an independent evaluation of Greene’s credibility. We agree with the state and, therefore, we reverse the judgment granting a new trial.

The petitioner in this case originally was charged with two counts of aiding and abetting murder in violation of General Statutes §§ 53a-8 and 53a-54a, and one count of aiding and abetting assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-59 (a) (l). 5Following a jury trial, he was convicted of two lesser included offenses of aiding and abetting manslaughter in the first degree in violation of General Statutes §§ 53a-8 and 53a-55 (a) (1).

The petitioner filed a direct appeal to the Appellate Court, which affirmed the judgment of conviction. State v. Adams, 36 Conn. App. 473, 482, 651 A.2d 747 (1994). He then petitioned this court for certification to appeal from the judgment of the Appellate Court, which we initially granted. State v. Adams, 232 Conn. 913, 654 A.2d 357 (1995). We ultimately dismissed the appeal, however, after determining that certification had been improvidently granted. State v. Adams, 235 Conn. 473, 476, 667 A.2d 796 (1995).

Thereafter, the petitioner brought this petition for a new trial pursuant to General Statutes § 52-270, alleging that the newly discovered testimony of Greene likely would result in a different verdict in the event of a retrial. Following oral arguments on the petition, the trial court granted the requested relief and ordered a new trial. Thereafter, the state requested, and received, the trial court’s permission to appeal pursuant to General Statutes § 54-96. This appeal followed.

The following facts, as stated by the Appellate Court in the petitioner’s direct appeal, are pertinent to our resolution of this appeal. “At approximately 3 a.m. on September 21, 1991, police responded to a report of shots, fired at the Athenian Diner on Whalley Avenue in New Haven. At the scene, the police found a hostile crowd of fifty to 100 people surrounding two wounded men lying on the ground. These two men, Hury Poole and Andrew Paisley, were later pronounced dead at a hospital. Another victim, Christopher Roach, had been shot in the arm.

“An altercation had originated in the diner and continued outside. A crowd gathered, including the defendant; his friend Daryl Valentine, who was the shooter; and Byron McFadden, who would later testify at trial.

“As Roach, Poole and Paisley joined the crowd, [McFadden] heard the [petitioner] shout, ‘Shoot him, shoot him, f— it, shoot him.’ Valentine shot Poole and Paisley, ran to a car parked in the driveway of the diner and got in on the passenger side. Roach ran after him. As Roach approached the car, Valentine fired at him, hitting him in the arm. The car with Valentine in it sped away, followed shortly thereafter by the [petitioner], who drove off in his own car.” State v. Adams, supra, 36 Conn. App. 474-75.

At the hearing on this petition for a new trial, the petitioner called one witness, public defender Thomas Ullmann, who had represented Valentine in his trial. Ullmann testified that the exculpatory information provided by Greene first became available during Valentine’s trial, which took place after the petitioner had been convicted. Ullmann also testified that he had been contacted by Valentine’s sister, who told him that Greene “had information regarding a key witness in the case.” Ullmann testified further that he had interviewed Greene, who revealed that she had engaged in two separate conversations regarding the incident with her cousin, Roach, the only victim to have survived, and who identified Valentine as the shooter at trial. According to Greene, Roach had admitted to her that he had not seen the shooting, but stated that “somebody has to pay the price, somebody has to go.” In Valentine’s trial, Ullmann had submitted Greene’s testimony to the trial court in an offer of proof for the purpose of impeaching Roach’s prior statement that he had never spoken to Greene about the incident at the Athenian Diner. The trial court excluded the testimony, however, characterizing it as collateral.

Valentine ultimately was convicted of murder. He then appealed from that judgment to this court. We held improper the ruling excluding Greene’s testimony, on the grounds that “the identity of the shooter and whether Roach knew that identity, [were] material to the central issue in the case and, therefore, was not collateral.” State v. Valentine, supra, 240 Conn. 404. Because this court determined that the improper exclusion of Greene’s testimony constituted harmful error, we reversed Valentine’s conviction and ordered a new trial. Id., 404-405.

At Valentine’s new trial, Greene initially testified that, in her first conversation with Roach, he refused to answer when she asked whether Valentine had anything to do with the shooting, stating that he could not discuss it. It was only after Ullmann refreshed her recollection with the prior offer of proof that Greene testified that Roach had told her that he “didn’t see who did it.” With respect to their second conversation, Greene again testified that Roach consistently had told her that he could not discuss matters related to the trial, and that it was only after being “pushed” on the issue that Roach said, “somebody has to pay the price, somebody has to go.” After hearing this, and other relevant testimony, the jury on the retrial again convicted Valentine on two counts of murder, one count of attempted assault in the first degree, and one count of carrying a pistol without a permit. As previously stated, only Ullmann testified on behalf of the petitioner during the hearing on the petition for a new trial. The trial court did not hear live testimony from Greene, but did have the benefit of reviewing the transcript of her testimony from Valentine’s second trial. After considering the transcript, together with this court’s first decision in State Valentine, supra, 240 Conn. 395, the trial court granted the petition.

The dispositive issue raised by the state on appeal is whether the trial court improperly concluded that its decision was dictated, in large part, by this court’s decision in State v. Valentine, supra, 240 Conn. 395. Specifically, the state claims that, in adhering to our appellate ruling in Valentine, the trial court improperly failed to evaluate Greene’s credibility in order to determine whether her testimony was likely to produce a different result in the event of a new trial. The petitioner concedes that it was necessary for the court to engage in such a credibility analysis, but counters with the argument that the trial court fulfilled its obligation in this respect. We agree with the state.

As a preliminary matter, we set forth the standard of review that governs our analysis on appeal. Typically, we review a trial court’s actions with respect to a petition for a new trial for an abuse of discretion. See Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983). This particular case, however, requires that we determine whether the trial court applied the appropriate standard in evaluating the petition at issue. Because this is a question of law, our review is plenary. See Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000).

Our analysis is founded, in large part, on our holding in Shabazz v. State, 259 Conn. 811, 792 A.2d 797 (2002), also decided today. In Shabazz, the petitioner appealed from the trial court’s denial of his petition for a new trial, claiming that the court improperly had engaged in a credibility analysis of certain newly discovered eyewitness testimony that was alleged to justify a new trial. Id., 812-13. We affirmed the judgment denying the petition, and held that: (1) a trial corn! must review a petition for new trial based on newly discovered evidence in accordance with the four-part test set forth in Asherman v. State, 202 Conn. 429, 521 A.2d 578 (1987); Shabazz v. State, supra, 818; and (2) both past precedent and the various interests implicated by petitions for a new trial mandate that a court assess the credibility of the newly discovered evidence at issue when deciding, under Asherman’s fourth prong, whether it is likely to produce a different result on retrial. Id., 822. We articulated the trial court’s burden as follows: “The trial court must always consider the newly discovered evidence in the context of the evidence presented in the original trial. In so doing, it must determine, first, that the evidence passes a minimum credibility threshold. That is, if, in the court’s opinion, the newly discovered evidence simply is not credible, it may legitimately determine that, even if presented to a new jury in a second trial, it probably would not yield a different result and may deny the petition on that basis. ... If, however, the trial court determines that the evidence is sufficiently credible so that, if a second jury were to consider it together with all of the original trial evidence, it probably would yield a different result or otherwise avoid an injustice, the fourth element of the Asherman test would be satisfied.” (Citation omitted.) Id., 827-28.

In light of our holding in Shabazz, both parties in the present case are correct in their assertion that the trial court was obligated to evaluate Greene’s credibility as a necessary part of the analysis under Ashemnan. The question we must resolve on appeal, therefore, is whether the trial court properly fulfilled its duty in this regard. Moreover, we note that “[n]ew trials [typically] are not granted upon newly discovered evidence which discredits a witness unless the evidence is [both] vital to the issues and . . . strong and convincing . . . .” Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959). “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 discovered evidence [to impeach] some witness .... Without such a rule, there might never be an end to litigation.” (Citation omitted; internal quotation marks omitted.) Lancaster v. Bank of New York, 147 Conn. 566, 578, 164 A.2d 392 (1960).

Our review of the trial court’s memorandum of decision discloses that the trial court failed to assess properly the credibility of the proffered newly discovered evidence. The court first correctly noted that “for the petitioner to be entitled to a new trial on the basis of newly discovered evidence he must establish the following: ‘(1) the proffered evidence [namely, Greene’s testimony] is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.’ Asherman v. State, [supra, 202 Conn. 434].” The court then applied the first three of these elements to the evidence before it, and determined that: (1) Greene’s testimony did, in fact, constitute newly discovered evidence because her conversations with Roach did not take place until after the petitioner had been convicted; (2) the question of whether Greene’s testimony would be material in the event of a new trial was answered by this court’s evidentiary ruling in Valentine-, and (3) Greene’s testimony was not cumulative.

The remainder of the trial court’s memorandum of decision was devoted to an analysis under the fourth prong of the Asherman test, namely, whether Greene’s testimony was likely to produce a different result on retrial. In this context, the court expressly articulated its “opinion . . . [that] the outcome of [the] petition is to a large extent governed by the Supreme Court’s holding in State v. Valentine [supra, 240 Conn. 404] . . . that the exclusion of Greene’s testimony was harmful error.” In State v. Valentine, supra, 404, we had stated that “Greene’s testimony, if believed by the jury, seriously would have undermined Roach’s in-court testimony identifying the defendant as the shooter” and, therefore, would have been more likely than not to affect the outcome of the trial. (Emphasis added.) The trial court noted that, in this respect, the harmful error standard “is not unlike the fourth element [of Asherman] which must be established [before the petitioner is] entitled to a new trial, i.e., that the evidence in question is likely to produce a different result in a new trial.” Without further discussion of, or analysis under, Asherman’s fourth prong, the trial court concluded that it was bound to provide the petitioner with a new trial because we had accorded the same relief to his codefendant in Valentine based on the harmful exclusion of Greene’s testimony.

The trial court’s reliance on our conclusion of harmful error in Valentine as a substitute for an independent credibility assessment under the fourth prong of the Asherman test was misplaced. First, in relying on the transcript of Greene’s testimony from Valentine’s second trial, rather than requiring that Greene testify as a witness in the hearing on the petition, the trial court in the present case acted solely as an evidentiary gatekeeper, rather than as a fact finder. This was improper. See Shabazz v. State, supra, 259 Conn. 824, 826 (in hearing petition for new trial “ ‘it [is] the duty of the trial judge to try the facts’ otherwise, trial court would be “relegated to the role of gatekeeper of the evidence ... a result [that] would render judgments of conviction unduly susceptible to collateral attacks”). Moreover, implicit in our recognition in Shabazz that the trial court sits as fact finder in a hearing on a petition for a new trial is the principle that, absent extraordinary or extenuating circumstances, the court should make its credibility assessments—both initial and thereafter—on the basis of the presentation of live testimony, rather than on the basis of a printed record. It was, therefore, improper for the trial court in the present case to limit its analysis of the petition to Greene’s offer of proof from Valentine’s first trial and the transcript of her testimony from his second trial.

Second, harmful error is an appellate construct, used to determine, in cases such as Valentine, whether an improper evidentiary ruling by the trial court likely affected the outcome of the trial. See State v. Valentine, supra, 240 Conn. 404 (“[t]o require the reversal of a conviction because of evidentiary error, the defendant must show that the error was harmful, i.e., that it is more probable than not that the erroneous ruling of the trial court affected the result”). When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it. The appellate court does not decide whether the jury would have believed the evidence and whether the verdict therefore would have been different; instead, the court decides whether the evidence, if believed by the jury, likely would have produced a different result. Id. The reviewing court thus abstains from drawing any independent conclusions regarding the credibility of the evidence, leaving that responsibility to the jury on a new trial, who may observe, firsthand, the witness’ conduct, demeanor and attitude. See State v. Edwards, 247 Conn. 318, 323, 721 A.2d 519 (1998); State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995).

In deciding a petition for a new trial, however, the trial court sits as fact finder in place of the jury and examines the newly discovered evidence independently, in order to determine whether it is likely to result in a different verdict in the event of a retrial. See Shabazz v. State, supra, 259 Conn. 824; People v. Shilitano, 218 N.Y. 161, 180, 112 N.E. 733 (1916). To this end, the trial court necessarily undertakes some sort of credibility assessment; for, if the newly discovered evidence is not worthy of belief, a jury sitting on the new trial would not be persuaded by it to reach a different result. See Shabazz v. State, supra, 825; Smith v. State, 141 Conn. 202, 208, 104 A.2d 761 (1954). The trial court, moreover, is obliged to make such a credibility determination, not on the basis of a printed record, as a reviewing court must do in undertaking a harmful error analysis, but rather on the basis of live testimony.

In substituting our finding of harmful error in Valentine for its analysis under the fourth prong of the Asherman test, the trial court thus assumed, without deciding, the believability of Greene’s testimony. Because such a credibility evaluation is necessary to a determination of whether Greene’s testimony was likely to result in an acquittal in the event of a new trial, the trial court’s finding with respect to this element of the Asherman test was incomplete.

The petitioner maintains, contrary to this conclusion, that the trial court’s analogy of Asherman’s fourth prong with the appellate test for harmful error did not amount to a “lock-step blind adherence to Valentine . . . . Quite the contrary, it [was] the well-reasoned and logical conclusion to the trial court’s thorough assessment of all the evidence, including the Valentine I offer of proof.” This argument, however, disregards several references in the trial court’s memorandum of decision to the binding nature and effect of our decision in Valentine. As previously stated, the trial court explicitly pronounced its belief that the outcome of the petition was largely dictated by our holding in Valentine, even going so far as to conclude that “[i]n the last analysis the Supreme Court has held that . . . Valentine was entitled to a new trial in which the jury would hear from . . . Greene. This court believes it is therefore bound to follow that holding and provide the same opportunity to [the petitioner].” (Emphasis added.) Moreover, the trial court twice emphasized our holding that Greene’s testimony, if believed by the jury, would likely affect the result of the trial. This reiteration of the appellate standard for harmful error suggests that, in the absence of any explicit finding by the trial court that Greene was a credible witness, the court relied on our holding in Valentine in lieu of making an independent determination as to whether her testimony was sufficiently believable as to warrant a new trial.

The petitioner further contends that, irrespective of any reference to Valentine, the trial court nonetheless fulfilled its obligation to evaluate the credibility of Greene’s testimony. In support of this assertion, the petitioner first points to that portion of the memorandum of decision in which the trial court responded to the state’s characterization of Greene’s testimony at Valentine’s second trial as “weak, ambiguous and blatantly biased.” The court noted that, although “Greene and Valentine had a relatively close relationship, it cannot be said for that reason alone that she was not worthy of belief.” In this context, the court also stated its belief that Greene’s testimony would not “necessarily be considered by a jury as weak and ambiguous.”

Far from definitively establishing that the trial court found Greene to be a believable witness, as the petitioner contends, these portions of its memorandum of decision simply illustrate the court’s conclusion, based solely on the transcript of Greene’s testimony, that she was not incredible. As we stated in Shabazz, such a finding constitutes only the first, or threshold, step in a trial court’s analysis of a petition for a new trial under the fourth prong of the Asherman test. See Shabazz v. State, supra, 259 Conn. 824. The trial court is also required to determine whether the newly discovered evidence is sufficiently credible such that, if admitted in a new trial and reviewed by a second jury together with all of the evidence presented at the original trial, it is likely to produce a different result. Notably absent from the trial court’s memorandum of decision is any finding that might satisfy this additional obligation. Moreover, as we previously have stated, whether the proffered newly discovered evidence surmounts an initial determination of credibility and, thereafter, whether it is sufficiently credible to justify a new trial, must be decided on the basis of the trial court’s own assessment of credibility, not on the type of cold transcript utilized by the trial court in the present case.

The petitioner also points to the trial court’s request that the parties brief the issue of whether it was necessary to hear Greene’s live testimony as evidence that “the court was well aware that it had to make a threshold determination as to the impact of . . . Greene’s evidence.” To the contrary, this request, taken both by itself and in the context of the colloquy between the court and counsel during the hearing on the petition, clearly reveals that the trial court was unsure of its responsibilities with respect to assessing the credibility of Greene’s testimony.

The trial court first touched upon the issue of the witness’ credibility in the context of ruling on an objection to Ullmann’s recitation of what was told to him by Greene in their initial interview. The court stated: “I think this is being offered merely to establish what was said because obviously what was said by this person at any stage of these proceedings is relevant to the issue here, and again, as we discussed in chambers, issues of credibility, truth of what was said, those things may or may not come into play.” (Emphasis added.) Subsequently, at the conclusion of the hearing, the court informed counsel that it would review their briefs together with Greene’s transcript from Valentine’s second trial and notify them as to a date for the presentation of Greene’s testimony, if, in the court’s opinion, such testimony was necessary. In this context, the court stated: “[I]t could well be that the testimony of . . . Greene with cross-examination might satisfy that requirement. It will give me a better sense as to at least what was said. Certainly I can’t assess her demeanor, but as we discussed in chambers, I am not so sure as to the extent I should be getting into that in any event.” (Emphasis added.)

Taken together, these two statements by the trial court reveal its ambivalence regarding whether, and to what extent, it should evaluate Greene’s credibility. Had the court been aware of its obligation in this respect, as the petitioner contends, it would not have expressly referred to the issue in such equivocal terms, noting both that credibility “may or may not come into play,” and that it was “not . . . sure as to the extent” to which it should assess Greene’s demeanor. Moreover, the mere fact that the court asked the parties to brief the issue of whether live testimony was necessary, coupled with its ultimate decision that such testimony was not required for a resolution of the petition, indicates that it was unaware of its duty to engage in an analysis of Greene’s credibility. As previously discussed, a trial court reviewing a petition for a new trial must hear live witness testimony, where such testimony constitutes the newly discovered evidence at issue, in order to determine properly whether the fourth prong of the Asherman test is satisfied. In other words, absent extraordinary circumstances, the trial court must have the opportunity, not only to evaluate the substance of the newly discovered testimony, but also the attitude, demeanor and candor with which it is communicated; otherwise, the court will be unable to assess adequately whether the testimony is sufficiently credible such that it is likely to produce a different result in the event of a new trial. The trial court recognized as much when it acknowledged, in its memorandum of decision, that it “did not have the benefit of seeing Greene testify so as to evaluate her credibility . . . .”

Finally, there is no indication in the trial court’s memorandum of decision that it gave any consideration to the heightened standard for granting a new trial based on newly discovered impeachment evidence set forth in Turner v. Scanlon, supra, 146 Conn. 163. The absence of any finding that Greene’s testimony was sufficiently strong and convincing so as to warrant a new trial further convinces us that the trial court misunderstood its responsibilities with respect to this petition.

The judgment is reversed and the case is remanded for a new trial on the petition.

In this opinion the other justices concurred.

       The state appealed from the judgment of the trial court to the Appellate Court, and we transferred the case to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 52-270 (a) provides: “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”

       General Statutes § 54-96 makes the requirements set forth in General Statutes § 54-95 (a) applicable to the state, and provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       Thereafter, we affirmed Valentine’s convictions. State v. Valentine, 255 Conn. 61, 78, 762 A.2d 1278 (2000).

       In Asherman v. State, supra, 202 Conn. 434, we stated that a court may grant a petition for a new trial “when it is satisfied that the evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative; and (4) is likely to produce a different result in the event of a new trial.” Shabazz v. State, supra, 259 Conn. 820-21.

       We recognize that neither the petitioner nor the state alerted the trial court to this procedural lacuna, perhaps because of the uncertainty in our prior case law, which Shabazz has now resolved. Furthermore, of course, the trial court did not have the benefit of our decision in Shabazz when it ruled on the petition.

       The petitioner points to the trial court’s next statement, namely, that “[t]he jury must make the ultimate decision as to the weight to give [Greene’s] testimony,” as indicating, not that the court failed to make an independent determination regarding credibility, but rather that the court recognized the inherent difference between weight and credibility. We disagree. Coupled with the court’s acknowledgment that it did not have the benefit of Greene’s live testimony so as to evaluate her credibility, this statement further reveals the court’s misconception that it was solely the function of the jury on retrial, rather than the court in ruling on the petition, to evaluate whether the testimony was worthy of belief. In placing the burden of evaluating Greene’s testimony on the shoulders of the jury on retrial, the trial court improperly abdicated its responsibility to make the initial, requisite credibility determination outlined in Shabazz.


text:
    MICHAEL DILULLO ET AL. v. MICHAEL JOSEPH
    (SC 16621)
    Borden, Norcott, Katz, Palmer and Vertefeuille, Js.
    Argued January 17
    officially released March 26, 2002

      Stuart G. Blackburn, with whom, on the brief, was Margaret Ralphs, for the appellant (plaintiff Public Service Mutual Insurance Company).

      Charles E. Hickey, for the appellee (defendant).
   Opinion

BORDEN, J.

The dispositive issue in this appeal is whether, in the absence of a specific agreement covering the question, a fire insurer of leased premises has a right of subrogation against a tenant for negligently causing a fire. The plaintiff Public Service Mutual Insurance Company brought an action against the defendant, Michael Joseph, doing business as Random Remnants, based on its alleged subrogation rights arising out of a fire on certain premises leased by the defendant and owned by the plaintiff's insureds, who were the named plaintiff, Michael DiLullo, and the plaintiff Fioretta DiLullo. The defendant moved for summary judgment on the subrogation count, which the trial court granted. The plaintiff appeals from that judgment. We conclude that no right of subrogation exists and, accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff brought this subrogation claim against the defendant, alleging that the DiLullos were the owners of certain premises located in Torrington, where the defendant operated a business known as Random Remnants. The plaintiff also alleged that on March, 24, 1998, a fire originated within the defendant’s rented space that was caused by the defendant’s negligence, resulting in damage to the insured premises and loss of rents to the DiLullos. The plaintiff alleged further that it had paid the DiLullos for some of their losses and was thereby subrogated to their rights to the extent of those payments.

The defendant moved for summary judgment on the basis that no such right of subrogation existed. Based upon the affidavits of the defendant and Michael DiLullo, as well as the deposition transcript of the defendant, filed in connection with the motion for summary judgment, the following facts may be taken as true. From December 1,1995, to December 1,1996, the defendant occupied the premises owned by the DiLullos under a written lease, and operated a business there. After the expiration of the lease, the defendant continued to rent the premises on a month-to-month basis. There was no agreement between the parties, either in the lease or otherwise, that the defendant would insure the premises for fire or other casualty, although Michael DiLullo requested the defendant to carry liability insurance on his business contents and, at the time of the entering of the lease, the defendant provided the DiLullos with evidence of such insurance. The defendant and the DiLullos never discussed the possibility that they would provide insurance coverage for each other, and there was no agreement that the DiLullos would relieve the defendant of liability arising from his own negligence. The defendant did not expect that any insurance that the DiLullos obtained would protect him, and he believed that his own insurance would cover his property losses and liability. Prior to the March 24, 1998 fire, the defendant had not formed an expectation that the DiLullos’ policy would provide him with coverage, and he acknowledged that his liability insurance would cover damage to the DiLullos’ property.

The trial court granted the defendant’s motion for summary judgment, ruling that, under the weight of authority, “[absent] an express agreement to the contrary, a tenant is an ‘implied co-insured’ under the landlord’s insurance policy, and the insurance company may not, therefore, bring an action for subrogation against the tenant.” Because there was no express agreement with the DiLullos obligating the defendant to insure the premises, the court concluded that the defendant and the DiLullos were coinsureds and that, therefore, no right of subrogation existed on behalf of the plaintiff, the DiLullos’ insurer. Accordingly, the court rendered judgment for the defendant. This appeal followed.

On appeal, the plaintiff claims that the trial court improperly rendered summary judgment for the defendant because: (1) contrary to the trial court’s conclusion, a tenant is not an implied coinsured of a landlord in the absence of an express agreement to the contrary; (2) whether such a relationship exists between a landlord and tenant must be determined by examining the parties’ intent, as gleaned on a case-by-case basis from their lease, if any, and their insurance policies; (3) the court improperly declined to consider the evidence presented to it regarding the parties’ intent in determining whether they were coinsureds; and (4) the court should have inquired into the fact of the parties’ intent regarding whether such a relationship existed between them. We agree with the trial court that, in the absence of an express agreement between the parties covering the question, there is no right of subrogation on the part of a landlord’s fire insurer against a tenant of the landlord’s premises; We reach this conclusion, however, by way of a different route from that of the trial court.

We first note that the precise issue we must resolve is: what should be the rule of law that governs in the typical default situation? That is, we recognize that tenants and landlords are always free to allocate their risks and coverages by specific agreements, in their leases or otherwise. The question posed by this appeal, however, is what the appropriate default rule of law should be where, as here, the parties have not made such an agreement. Our strong public policy against economic waste, and the likely lack of expectations regarding a tenant’s obligation to subrogate his landlord’s insurer, lead us to conclude that, as a default rule, no such right of subrogation exists.

At the outset, we note that there is a split of authority on this question among other jurisdictions. The leading case for the proposition that there is no right of subrogation, in the absence of a specific agreement to the contrary, is Sutton v. Jondahl, 532 P.2d 478, 482 (Okla. App. 1975). What came to be known as the Sutton rule is based on the reasoning that the tenant is deemed to be a coinsured of the landlord because: (1) both parties have an insurable interest in the premises, the landlord as owner, and the tenant as possessor, of the fee; and (2) the tenant’s rent presumably includes some calculation of the landlord’s fire insurance premium. Id. The majority of courts, including the trial court in the present case, have generally adhered to the rule in Sutton, either on its same or different reasoning. See, e.g., Alaska Ins. Co. v. RCA Alaska Communications, Inc., 623 P.2d 1216, 1219-20 (Alaska 1981); Lexington Ins. Co. v. Raboin, 712 A.2d 1011, 1016 (Del. Super.), aff'd, 723 A.2d 397 (Del. 1998); Continental Ins. Co. v. Kennerson, 661 So. 2d 325, 330-31 (Fla. App. 1995); Peterson v. Silva, 428 Mass. 751, 754, 704 N.E.2d 1163 (1999); Jindra v. Clayton, 247 Neb. 597, 604, 529 N.W.2d 523 (1995); Safeco Ins. Co. v. Capri, 101 Nev. 429, 431-32, 705 P.2d 659 (1985). In addition, Judge Keeton and Professor Widiss endorse the Sutton result, if not its rationale. “The possibility that a lessor’s insurer may proceed against a lessee almost certainly is not within the expectations of most landlords and tenants unless they have been forewarned by expert counseling. When lease provisions are either silent or ambiguous in this regard—and especially when a lessor’s insurance policy is also silent or ambiguous—courts should adopt a rule against allowing the lessor’s insurer to proceed against the tenant.” R. Keeton & A. Widiss, Insurance Law (1988) § 4.4 (b), pp. 340-41.

A minority of courts, however, has criticized the Sutton rule and has declined to follow it, adopting a case-by-case analysis instead. See, e.g., 56 Associates v. Frieband, 89 F. Sup. 2d 189, 192-94 (D.R.I. 2000); Page v. Scott, 263 Ark. 684, 687, 567 S.W.2d 101 (1978); Bannock Building Co. v. Sahlberg, 126 Idaho 545, 548, 887 P.2d 1052 (1994); Neubauer v. Hostetter, 485 N.W.2d 87, 89-90 (Iowa 1992); Britton v. Wooten, 817 S.W.2d 443, 447 (Ky. 1991); Osborne v. Chapman, 574 N.W.2d 64, 67 (Minn. 1998). A leading treatise on insurance law also has found fault with the Sutton rationale, noting that “the fact both parties had insurable interests [in the premises] does not make them co-insureds. The insurer has a right to choose whom it will insure and it did not choose to insure the lessees, and under this holding the lessee could have sued the insurer for loss due to damage to the realty, e.g. loss of use if policy provides such coverage.” 6A J. Appleman & J. Appleman, Insurance Law and Practice (Cum. Sup. 2001) § 4055, pp. 131-32 n.86.10. Appleman has acknowledged, however, that the “[c]ases following Sutton, have at least impliedly restricted the co-insurance relationship to one limited solely to the purpose of prohibiting subrogation.” Id.

We agree with these criticisms of the Sutton rationale, as a matter of the general principles of insurance and contract law. Thus, we agree that, under traditional rules of insurance law, a tenant is not a coinsured on his landlord’s fire insurance policy simply because he has an insurable interest in the premises and pays rent. We also agree with the plaintiff that, as a matter of the traditional rules of contract law, whether subrogation would or would not apply ordinarily would depend, in large part, on a case-by-case analysis of the language of the insurance policies and leases involved. In accordance with the weight of authority, however, we conclude that the Sutton result is sound as a matter of subrogation law and policy, and that those considerations outweigh the criticisms and the usual rules of insurance and contract law.

Our decision is founded, in large part, upon the principle that subrogation, as an equitable doctrine, invokes matters of policy and fairness. See Home Owners’ Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 238, 193 A. 769 (1937) (“[s]ubrogation is a doctrine which equity borrowed from the civil law and administers so as to secure justice without regard to form or mere technicality” [internal quotation marks omitted]). One such policy implicated by the issue presently before us is that disfavoring economic waste. See Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 154, 763 A.2d 1011 (2001) (policy against economic waste long recognized in our jurisprudence). This strong public policy convinces us that it would be inappropriate to create a default rule that allocates to the tenant the responsibility of maintaining sufficient insurance to cover a claim for subrogation by his landlord’s insurer. Such a rule would create a strong incentive for every tenant to carry liability insurance in an amount necessary to compensate for the value, or perhaps even the replacement cost, of the entire building, irrespective of the portion of the building occupied by the tenant. That is precisely the same value or replacement cost insured by the landlord under his fire insurance policy. Thus, although the two forms of insurance would be different, the economic interest insured would be the same. This duplication of insurance would, in our view, constitute economic waste and, in a multiunit building, the waste would be compounded by the number of tenants. See Peterson v. Silva, supra, 428 Mass. 754 (“[i]t surely is not in the public interest to require all the tenants to insure the building which they share, thus causing the building to be fully insured by each tenancy”). We think that our law would be better served by having the default rule of law embody this policy against economic waste, and by leaving it to the specific agreement of the parties if they wish a different rule to apply to their, or their insurers’, relationship.

Furthermore, we agree with Judge Keeton and Professor Widiss that, in most instances, neither landlords nor tenants ordinarily expect that the landlord’s insurer would be proceeding against the tenant, unless expert counseling to that effect had forewarned them. R. Keeton & A. Widiss, supra, § 4.4 (b), pp. 340-41. Thus, barring subrogation in such a case comports with the equities of most situations.

The judgment is affirmed.

In this opinion the other justices concurred.

       In the first count of the complaint, Michael DiLullo and Fioretta DiLullo, brought an action against the defendant in negligence. That count is not before us in this appeal. In the second count, which is presently before us, the plaintiff brought an action against the defendant as subrogee of the rights of the DiLullos. Accordingly, we refer to Public Service Mutual Insurance Company as the plaintiff throughout this opinion.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       Because this conclusion implicitly rejects a case-by-case analysis of the specific terms of the parties’ insurance policies, we need not consider the plaintiffs third and fourth claims.

       The trial court found that the parties did not specifically agree with each other, either in form or substance, regarding whether the landlords’ insurer would have a right of subrogation against the tenant. We note, however, that such an agreement generally may be evidenced by the parties’ lease, or by the tenant being named as an additional insured in the landlord’s policy. See Peterson, v. Silva, 428 Mass. 751, 754, 704 N.E.2d 1163 (1999).

       The Massachusetts Supreme Judicial Court recently decided Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779, 761 N.E.2d 946 (2002), which limited the application of Peterson to residential tenancies and rejected the Sutton rule in the context of commercial tenancies. We decline to follow Seaco Ins. Co., however, because in our opinion, the considerations of economic waste, upon which we base our decision today, are likely to be compounded in a commercial setting involving a large number of tenancies.