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SHAWN HENNING v. STATE OF CONNECTICUT
(SC 20139)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The petitioner, who had been convicted of felony murder in connection
with the stabbing death of the victim, filed a petition for a new trial based
on a claim of newly discovered DNA and other evidence. Thereafter, the
petitioner’s case was consolidated with the petitioner’s closely related
habeas action. The habeas court denied the petition for a new trial,
and the petitioner appealed, claiming, inter alia, that the habeas court
incorrectly determined that the newly discovered DNA evidence did not
warrant a new trial. Held that this court having determined in Henning
v. Commissioner of Correction (334 Conn. 1), which addressed the
petitioner’s appeal from the denial of his habeas petition, that the petitioner is entitled to a writ of habeas corpus granting him a new trial
insofar as the state deprived him of a fair trial by failing to correct
certain incorrect trial testimony, the petitioner’s appeal from the denial
of his petition for a new trial was rendered moot, and, accordingly, the
appeal was dismissed.
Argued October 12, 2018—officially released June 14, 2019**
Procedural History
Petition for a new trial after the petitioner’s conviction of felony murder, and for other relief, brought to
the Superior Court in the judicial district of Litchfield,
where the case was transferred to the judicial district
of Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed. Appeal dismissed.
W. James Cousins, with whom, on the brief, was
Craig A. Raabe, for the appellant (petitioner).
Jo Anne Sulik, supervisory assistant state’s attorney,
with whom, on the brief, was David S. Shepack, state’s
attorney, for the appellee (state).
Opinion
PALMER, J. In 1989, the petitioner, Shawn Henning,
was convicted of felony murder for the 1985 slaying of
Everett Carr during the course of an apparent burglary
of Carr’s New Milford home. The petitioner was sentenced to a term of imprisonment of fifty years, and,
following his appeal, this court upheld his conviction.
See State v. Henning, 220 Conn. 417, 431,
599 A.2d 1065
(1991). Thereafter, in 2015, the petitioner filed a petition
for a new trial; see General Statutes § 52-270 (a);1 on
the basis of newly discovered DNA and other evidence.2
Subsequently, the trial court, Pickard, J., granted the
petitioner’s motion to transfer the case to the judicial
district of Tolland, where it was consolidated with his
previously filed petition for a writ of habeas corpus and
the closely related new trial and habeas petitions of
Ralph Birch, who, at a separate trial, was also convicted
of felony murder in connection with Carr’s death. The
habeas court, Sferrazza, J., rejected all of the claims
advanced in the four petitions, and the petitioner and
Birch filed separate appeals with the Appellate Court.
We thereafter transferred the appeals to this court pursuant to General Statutes § 51-199 (c) and Practice Book
§ 65-2.
On appeal from the denial of his petition for a new
trial, the petitioner claims that the habeas court incorrectly determined that the newly discovered DNA evidence does not warrant a new trial. The petitioner
further claims that, in determining whether he should
be awarded a new trial under § 52-270 (a), he is entitled
to consideration of the original trial evidence together
with all exculpatory evidence, including evidence that
would not otherwise provide a basis for a petition for a
new trial because it was not discovered by the petitioner
until after the three year limitation period for filing such
a petition had expired. See General Statutes § 52-582
(a) (‘‘[n]o petition for a new trial in any civil or criminal
proceeding shall be brought but within three years next
after the rendition of the judgment or decree complained of, except that a petition for a new trial in a
criminal proceeding based on DNA . . . evidence or
other newly discovered [forensic] evidence . . . that
was not discoverable or available at the time of the
original trial or at the time of any previous petition
under this section, may be brought at any time after
the discovery or availability of such new evidence’’).
In support of this contention, the petitioner claims that
the three year limitation period of § 52-582 (a) simply
does not apply to a petition, like the present one, in
which there is newly discovered DNA evidence
because, the petitioner argues, the three year limitation
period having been deemed inapplicable to newly discovered DNA evidence, that limitation period is also
inapplicable to all other evidence that was not available
at the time of trial.
In a separate opinion issued today, we have concluded, contrary to the determination of the habeas
court, that the petitioner is entitled to a writ of habeas
corpus granting him a new trial because the state
deprived him of a fair trial in violation of Brady v.
Maryland, 373 U.S. 83, 87,
83 S. Ct. 1194,
10 L. Ed. 2d
215 (1963), and its progeny by failing to correct certain
incorrect trial testimony of the then director of the state
police forensic laboratory, Henry C. Lee. See Henning
v. Commissioner of Correction,
334 Conn. 1, 33,
A.3d (2019). Because our decision in that case
awarding the petitioner a new trial renders moot the
petitioner’s appeal from the denial of his petition for a
new trial, we must dismiss the present appeal. See, e.g.,
State v. Boyle,
287 Conn. 478, 486–87,
949 A.2d 460
(2008) (appeal is moot, and therefore must be dismissed, when, because of events occurring during pendency of appeal, appellate court cannot afford any
practical relief to appellant).
The appeal is dismissed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices Palmer, McDonald,
D’Auria, Mullins, Kahn and Ecker. Although Chief Justice Robinson was not
present when the case was argued before the court, he has read the briefs
and appendices, and listened to a recording of the oral argument prior to
participating in this decision.
… June 14, 2019, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
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 . . .
the discovery of new evidence . . . .’’
2
In addition to the newly discovered DNA evidence, the petitioner relied
on the following evidence in support of a new trial: (1) his discovery that
the police recovered $1000 in cash at the crime scene, thereby refuting the
state’s theory at the petitioner’s criminal trial that Carr was murdered during
the commission of a botched burglary; (2) Timothy Saathoff’s recantation
of his criminal trial testimony that the petitioner confessed to being present
at the victim’s home on the night of the murder; and (3) the testimony of John
Andrews, the former boyfriend of the victim’s daughter, Diana Columbo,
that Columbo had confessed to him that she was the person responsible
for the victim’s murder.
