Moore v. Commissioner of Correction

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.

All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.

The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ ALEXANDER, J., with whom MULLINS, C. J., and DANNEHY, J., join, dissenting. The majority’s conclu- sion in this habeas appeal blurs the line in our Napue/ Giglio1 jurisprudence as to when a prosecutor is obligated to correct false or misleading testimony by a cooperat- ing witness. I respectfully disagree with the majority’s decision to remand this case for further proceedings to determine whether the “past practice” of the New Lon- don state’s attorney’s office, which was never raised at trial, created an understanding between a cooperating witness, Samuel Gomez, and the state that he would receive consideration in exchange for his testimony at the criminal trial of the petitioner, Darnell Moore. The petitioner does not ask this court to remand for further fact-finding, and the record does not support this action in light of the habeas court’s specific factual finding that credits the testimony of Gomez, Gomez’ defense counsel, and three prosecutors denying the existence of any such understanding. Indeed, the habeas court explicitly found that “[t]here [was] no evidence of an express intention by the state not to prosecute Gomez; nor [was] there evi- dence of even an informal understanding or unexpressed intention.” I, therefore, respectfully dissent.

The following facts are relevant in determining whether a tacit agreement existed in this case. In August 2010, the petitioner shot and killed the victim, Namdi Smart, in Norwich. Gomez drove the petitioner to and from the scene, and supplied the firearm that the petitioner used to shoot the victim. In April 2011, eight months after the petitioner was arrested and charged with murder, police officers interviewed Gomez, and he confessed to his involvement in the crime. Following the interview, Gomez was arrested and charged with, inter alia, carry- ing a pistol or revolver without a permit in violation of General Statutes (Rev. to 2009) § 29-35 (a) and hindering prosecution in the second degree in violation of General Statutes § 53a-166. Gomez subsequently posted bond and hired Attorney Peter Catania to represent him.

The petitioner’s criminal trial in the Superior Court in the judicial district of New London commenced in December 2012, while Gomez’ charges remained pend- ing. On the second day of trial, the state called Gomez as a witness. Prior to his testimony and outside the pres- ence of the jury, defense counsel, Attorney Norm Pattis, questioned the representation by the prosecutor, David Smith, that the state had not offered Gomez any benefit in exchange for his testimony. Pattis then requested permission to call Catania as a witness to question him about his conversations with the New London state’s attorney’s office and the presiding judge in New Lon- don. Following an objection by Smith, the court denied Pattis’ request.2

Gomez testified about the events of the victim’s mur- der, including admitting to his personal involvement in the crime and identifying the petitioner as the perpetra- tor. During cross-examination, Pattis questioned Gomez about his motivation for testifying. Gomez denied believ- ing or expecting that testifying against the petitioner might result in his receiving a favorable plea bargain from the state with respect to his pending charges. Pattis asked Gomez, “[y]ou’re just here to do the right thing, correct?” Gomez replied, “[y]up.” When asked about why he had yet to plead guilty to his pending charges, Gomez stated that he did not know. At the conclusion of Pattis’ cross-examination, the following colloquy occurred: “[Pattis]: You fully intend to cut a deal with the state after your testimony in this case, don’t you? “[Gomez]: I’m hoping for the best. “[Pattis]: And what you’re hoping for in this case is that the testimony you offer helps you out at sentenc- ing, correct?

“[Gomez]: Yeah.”

During redirect examination, the prosecutor asked Gomez whether any offer had been made to him con- cerning his pending charges. Gomez replied, “[n]o.”

The jury found the petitioner guilty of murder, and, on March 5, 2013, the trial court sentenced him to a total effective sentence of fifty-three years of incarceration. The petitioner’s conviction was upheld on direct appeal. See State v. Moore, 169 Conn. App. 470, 473, 499, 151 A.3d 412 (2016), appeal dismissed, 334 Conn. 275, 221 A.3d 40 (2019).

On March 14, 2013, Gomez pleaded guilty under the Alford3 doctrine to one count of hindering prosecution in the third degree in violation of General Statutes (Rev. to 2009) § 53a-167. During the plea hearing, the prosecutor, Stephen Carney, recommended to the court that Gomez be sentenced to five years of incarceration, execution suspended, with three years of probation. The court accepted Gomez’ plea. At the conclusion of the plea hear- ing, Catania stated that “there [were] no prior deals, prior to today, nothing arranged with the state.”

Gomez’ sentencing hearing was held on June 21, 2013, with State’s Attorney Paul J. Narducci filling in for Carney. The trial court sentenced Gomez in accordance with the plea agreement, and the state nolled all of his other charges in three part B cases.

The petitioner commenced this habeas action in 2015 and filed the operative third amended petition for a writ of habeas corpus in April 2021. Relevant to this appeal, the petitioner claimed that his due process rights were violated when the state knowingly solicited false testimony from Gomez concerning an agreement for consideration in exchange for his testimony and, then, allowed it to go uncorrected at trial. A one day habeas trial was held on March 30, 2022, at which the petitioner testified and presented the testimony of Gomez, Pattis, Catania, Carney, Smith, and Narducci. Consistent with his testimony at the petitioner’s criminal trial, Gomez denied discussing a leniency agreement with the prosecu- tor. Catania likewise testified that there was no formal or informal agreement with the state, but there was “a hope that . . . Gomez’ testimony would put him in a better light and better favor to . . . the court regarding his own case, but there [were] no specific agreements. There was . . . nothing . . . set down. That was what our . . . hope was in his cooperation, but there was nothing promised from the state.” The prosecutors, Carney, Smith, and Narducci,4 each testified that there was no agreement between the state and Gomez prior to the petitioner’s criminal trial.

The habeas court credited the testimony, both indi- vidually and collectively, provided by Gomez, Catania, Carney, Smith, and Narducci, and found that there was no agreement, formal or informal, between the state and Gomez, and no unexpressed intention by the state to extend leniency to Gomez. Accordingly, the habeas court rendered judgment denying the petition, which the Appellate Court subsequently affirmed. See Moore v. Commissioner of Correction, 227 Conn. App. 487, 489, 519, 321 A.3d 470 (2024). The present case turns on whether, notwithstanding the habeas court’s specific finding to the contrary, the record supports the conclusion that the state was obli- gated but failed to correct Gomez’ testimony at trial with respect to his motivation to testify against the petitioner. The petitioner claims that several events surrounding the disposition of Gomez’ criminal case compel that con- clusion. The petitioner relies on the delay in Gomez’ case leading up to the petitioner’s trial, Gomez’ inculpatory testimony, and Gomez’ lenient plea agreement and sen- tence soon after the petitioner’s conviction.5 I disagree.

Even when considered collectively, this circumstantial evidence does not provide a sufficient basis from which the habeas court reasonably could infer the existence of an agreement between the state and Gomez.

I begin with the standard of review and the relevant legal principles. “Whether a prosecutor knowingly pre- sented false or misleading testimony [in violation of a defendant’s due process rights] presents a mixed ques- tion of law and fact, with the [habeas] court’s factual findings subject to review for clear error and the legal conclusions that the court drew from those facts subject to de novo review.” (Internal quotation marks omitted.) State v. Komisarjevsky, 338 Conn. 526, 645, 258 A.3d 1166, cert. denied, ___ U.S. ___, 142 S. Ct. 617, 211 L. Ed. 2d 384 (2021).

As outlined by the United States Supreme Court in Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), “[d]ue pro- cess is . . . offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears. . . . If a [state] witness falsely denies having struck a bargain with the state, or substantially mis- characterizes the nature of the inducement, the state is obliged to correct the misconception.” (Internal quota- tion marks omitted.) State v. Johnson, 345 Conn. 174, 204, 283 A.3d 477 (2022). Thus, “[t]o establish a Napue/ Giglio violation . . . the [defendant] must demonstrate that the state’s witnesses provided material, false or substantially misleading testimony that the prosecutor failed to correct.” (Internal quotation marks omitted.) State v. Komisarjevsky, supra, 338 Conn. 645.

“The prerequisite of any claim under . . . Napue and Giglio . . . is the existence of an undisclosed agreement or understanding between the cooperating witness and the state.” (Emphasis omitted; internal quotation marks omitted.) Gomez v. Commissioner of Correction, 336 Conn. 168, 180, 243 A.3d 1163 (2020). In recent years, we have explained that such agreements are not limited to formal promises. See, e.g., Marquez v. Commissioner of Correction, 330 Conn. 575, 603–604, 198 A.3d 562 (2019); see also Brown v. Commissioner of Correction, 230 Conn. App. 384, 412, 330 A.3d 134, cert. denied, 351 Conn. 921, 333 A.3d 103 (2025). Instead, “evidence that reasonably suggests that an informal understanding between the state and a cooperating witness exists, or reasonably may be viewed as an inducement by the state, falls within the ambit of what must be disclosed.” Brown v. Commissioner of Correction, supra, 412. Although an “agreement or understanding” for purposes of Napue/ Giglio is broadly defined; see, e.g., Johnson v. Commis- sioner of Correction, 238 Conn. App. 714, 732–33, 357 A.3d 729 (2026); at a minimum, there must be evidence of “an affirmative inducement made by the state to a cooperating witness . . . that gives rise to a mutual under- standing . . . .” (Citation omitted; internal quotation marks omitted.) Brown v. Commissioner of Correction, supra, 422 n.14; see also Akrawi v. Booker, 572 F.3d 252, 263 (6th Cir. 2009). At the petitioner’s habeas trial, Gomez and four attorneys, Catania, Carney, Smith, and Narducci, each denied that an agreement or understanding, formal or informal, existed between Gomez and the state. Gomez testified that, although the state made him no promises to that effect, he testified in hopes of receiving favor- able treatment. Gomez also testified that he was never approached by Carney or Smith, that he never met with the prosecutors prior to the petitioner’s trial, and that Catania never approached him about an offer from the state. Carney and Smith both testified that they did not personally solicit favorable testimony from Gomez and that they were aware of their prosecutorial duty to disclose the existence of any such agreements. Carney explained that, leading up to the petitioner’s trial, “there was a definite effort to not make an offer to . . . Gomez regarding testimony so that we wouldn’t . . . color or influence his testimony in any sort of way.” He further stated that Gomez’ sentence recommendation was for- mulated only after Smith reported to him that Gomez had testified at the petitioner’s trial. The habeas court credited this testimony, which was consistent with both Gomez’ criminal trial testimony and Catania’s statement to the court during Gomez’ plea hearing that “no prior deals” existed. Significantly, the petitioner presented no evidence at his habeas trial that contradicted or cast doubt on this testimony.6

Notably, the majority does not deem clearly erroneous the habeas court’s finding that there was no formal or informal agreement. Nor could it. The probative force of five individuals involved in the underlying trial— from either side of the claimed “understanding”—each of whom asserted that no agreement or understanding existed, and whose testimony went uncontradicted at the habeas trial, renders it impossible to conclude that the habeas court’s finding was not supported by the record. See, e.g., Barlow v. Commissioner of Correction, 343 Conn. 347, 357–58, 273 A.3d 680 (2022). A decision otherwise would necessitate the conclusion that Gomez and four attorneys perjured themselves before the habeas court and that the habeas court’s assessment of their credibility was incorrect.

The role of this court on appeal is not to “retry the case or [to] evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Sanchez v. Commis- sioner of Correction, 314 Conn. 585, 604, 103 A.3d 954 (2014). Indeed, it is “[t]he habeas judge, as the trier of facts, [who] is the sole arbiter of the credibility of wit- nesses . . . .” (Citation omitted; emphasis in original; internal quotation marks omitted.) Gaines v. Commis- sioner of Correction, 306 Conn. 664, 690, 51 A.3d 948 (2012). In the present case, the habeas court expressly credited the testimony of Gomez, Catania, Carney, Smith, and Narducci. I would defer to this credibility assessment and conclude that this evidence supports the inference that the habeas court drew from it, namely, that there was no mutual understanding between Gomez and the state with respect to his testimony or any unexpressed intention by the state to extend leniency to Gomez. See, e.g., Brown v. Commissioner of Correction, 228 Conn. App. 309, 317–18, 324 A.3d 144, cert. denied, 350 Conn. 927, 326 A.3d 250 (2024); Diaz v. Commissioner of Cor- rection, 174 Conn. App. 776, 801–802, 166 A.3d 815, cert. denied, 327 Conn. 957, 172 A.3d 204 (2017).

Notwithstanding the testimony presented at the habeas trial and the habeas court’s finding that there was no mutual understanding, the petitioner asks this court to consider the circumstances surrounding the disposition of Gomez’ case as circumstantial evidence that an agree- ment existed. This evidence is unavailing.

In support of his claim, the petitioner relies on the following facts. During Gomez’ first appearance in the part A court, which occurred seventeen months before the petitioner’s trial, Catania stated to the court that Gomez’ case had been transferred to part A “because of . . . issues with wanting statements from . . . Gomez.” Following this appearance, no action was taken in Gomez’ case until the conclusion of the petitioner’s trial, at which Gomez testified and inculpated himself. Nine days after the petitioner was sentenced, Gomez entered a plea of guilty, and Carney made the following sentence recom- mendation to the court: “[The] state’s recommendation . . . is five years, suspended, with three years [of] proba- tion. Your Honor, we make the recommendation with the acknowledgement that [Gomez] did testify at the trial regarding [the petitioner] . . . . And I understand that . . . Smith found his testimony to be both credible and highly probative, and I believe that the conviction was secured largely because [Gomez] came forward [with] some peril to himself and gave forthright information to the jury. We are, in consideration, recommending a fully suspended sentence then.”

The petitioner argues that, without an agreement or understanding, Gomez’ charges would have been disposed of earlier, Gomez would not have testified at his own peril, and Gomez would not have received a lenient plea agreement and sentence. I disagree. The habeas court was made aware of this evidence and nevertheless found the testimony presented at trial to be credible.

Even if we were to accept the circumstantial evidence relied on by the petitioner, pure speculation is required to conclude that there was an understanding between Gomez and the state with respect to his testimony at the petitioner’s criminal trial. Cf., e.g., New Hartford v. Con- necticut Resources Recovery Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009). The record does not support anything more than a finding that Gomez, at the advice of Catania, unilaterally hoped that testifying against the petitioner might result in his receiving consideration from the state on his pending charges. The state does not have a duty to disclose such mere hope of consideration by a cooperating witness. See, e.g., Brown v. Commis- sioner of Correction, supra, 230 Conn. App. 422 n.14. By extension, the state also has no duty to correct that same testimony. The fact that this hope was realized does not, without more, require us to disturb a habeas court’s find- ing that there was no preexisting understanding. Indeed, “[t]he government is free to reward witnesses for their cooperation with favorable treatment in pending criminal cases without disclosing to the defendant its intention to do so . . . .” Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003). “[T]he fact that [the prosecutor] recommended a [lesser] sentence, standing alone, does not establish the existence of a preexisting promise of leniency in exchange for testimony.” Greene v. Commissioner of Correction, 330 Conn. 1, 30, 190 A.3d 851 (2018), cert. denied sub nom. Greene v. Semple, 586 U.S. 1167, 139 S. Ct. 1219, 203 L. Ed. 2d 238 (2019).

The essence of a Napue/Giglio violation is a lack of disclosure of the truth to the jury. See, e.g., Gomez v. Commissioner of Correction, supra, 336 Conn. 181–82.

Here, the jury was informed during cross-examination of Gomez’ incentive to testify against the petitioner—his personal hope that his testimony may result in a lesser sentence from the state. There is no Napue/Giglio viola- tion when the “jury . . . [is] made aware that [the witness] had testified with the aspiration . . . of receiving consid- eration in the form of a reduced period of incarceration.” Young v. Commissioner of Correction, 219 Conn. App. 171, 195, 294 A.3d 29, cert. denied, 347 Conn. 905, 297 A.3d 567 (2023).

Other than Gomez v. Commissioner of Correction, supra, 336 Conn. 168,7 the petitioner cites no cases in which this court has inferred the existence of an agree- ment between a cooperating witness and the state on facts similar to those comprising the present record, with express findings to the contrary by the trier of fact. My independent research, like that of the Appellate Court, has revealed no authority to that effect.8 See Moore v. Commissioner of Correction, supra, 227 Conn. App. 510. Rather, this court and the Appellate Court have, on many occasions, declined to infer that an agreement existed simply because a cooperating witness received favorable treatment from the state. See, e.g., State v. Ouellette, 295 Conn. 173, 188–89, 989 A.2d 1048 (2010); Johnson v. Commissioner of Correction, supra, 238 Conn. App. 733–34; Brown v. Commissioner of Correction, supra, Conn. App. 317–18; Diaz v. Commissioner of Cor- rection, supra, 174 Conn. App. 801–802.

The petitioner cites to several cases involving the New London state’s attorney’s office to establish that, at the times relevant to this appeal, it had a “general practice” or “standard procedure” of making “vague” or informal promises to cooperating witnesses. See Brown v. Com- missioner of Correction, supra, 230 Conn. App. 422–23; Turner v. Commissioner of Correction, 181 Conn. App. 743, 750–51, 187 A.3d 1163 (2018); Smith v. Commis- sioner of Correction, Docket No. CV-XX-XXXXXXX-S, 2021 WL 4895524, *7 (Conn. Super. September 20, 2021).

Unlike the majority, the petitioner does not rely on these cases to request a remand and the opportunity for further fact-finding.

In Brown v. Commissioner of Correction, supra, 230 Conn. App. 384, the petitioner alleged that, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, and, therefore, the jury should have known about [them].” Part I of the majority opinion. These cases, which concerned prosecutorial failure to disclose agreements in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), are distinguishable. Both involved records of consideration that had been provided before the testimony at the defendant’s trial and prosecutorial responses to Brady requests that were either incomplete or explicit denials of providing such consideration. See United States v. Shaffer, supra, 689–91 (government did not disclose full extent of consideration given to cooperating wit- ness, despite request for impeachment evidence); Ware v. State, supra, 49–51 (prosecutor testified at hearing on cooperating witness’ motion for reconsideration of sentence, which had been held in abeyance pend- ing witness’ testimony at trial). Most significant, neither case inferred the existence of a tacit agreement in contradiction of a factual finding that no agreement of any kind existed. 10 L. Ed. 2d 215 (1963), an undisclosed agreement or understanding existed between the New London state’s attorney’s office, which is the same state’s attorney’s office involved in the present case, and a cooperating witness, Candace Foster, in which Foster would receive consideration from the state with respect to her pending charges in exchange for her testimony at the petitioner’s criminal trial. Brown v. Commissioner of Correction, supra, 230 Conn. App. 386, 393. At the habeas trial, Narducci testified that no offers or deals were made with Foster, but then stated: “[W]hat I said virtually in all the cases that I’ve handled, [is] that we do not make any specific promises concerning any offers that are being made. What we do tell them [is], in the past, people who come in to testify truthfully and accurately, that infor- mation is considered by the prosecuting authorities in determining a recommendation. And if they do testify truthfully and completely and accurately, that informa- tion will be made available to the sentencing judge, but we do not make any promises, any specific promises, as it relates to any offense. . . .

“We also tell witnesses that . . . it’s expected that you can testify that you’re hoping for some consideration in exchange for your complete, accurate and truthful testimony.” (Internal quotation marks omitted.) Id., 406. It was undisputed that Narducci conveyed this practice to Foster. Id., 413. On appeal, the Appellate Court con- cluded that an informal understanding existed between Foster and the state that required disclosure under Brady. Id., 414–15. The Appellate Court reasoned that Narducci’s communication of the state’s past practice to Foster gave rise to a mutual understanding that, if Foster testified truthfully, the state’s past practice of rewarding witnesses would apply to her. Id., 413.

Relying on Brown, the majority concludes that the present record is insufficient for this court to deter- mine whether the habeas court incorrectly found that no agreement existed between Gomez and the state. In the majority’s view, the testimony at the petitioner’s habeas trial was, perhaps, “provided under the same mistaken understanding that Narducci harbored in Brown—that is, that the prosecution’s practice of structuring com- munications with cooperating witnesses so that those witnesses can testify that they have received no prom- ises, while nevertheless ‘hoping’ for consideration . . . does not create an informal cooperation agreement . . . .” Part II of the majority opinion. I disagree with this specu- lative reliance on Brown.

There are important distinctions between the present case and Brown. In Brown, Narducci testified that he had communicated the past practice of the New Lon- don state’s attorney’s office to Foster, thus triggering a mutual understanding for consideration. See Brown v. Commissioner of Correction, supra, 230 Conn. App. 412–13 and n.7. In the present case, however, there was no evidence that Gomez ever spoke to the prosecutors prior to the petitioner’s trial. Gomez testified at the habeas trial that he did not meet with the prosecutors and that he was never approached by Carney or Smith. The habeas court credited this testimony. Thus, even if the habeas court finds on remand that, at the time of the petitioner’s trial, the New London state’s attorney’s office was engaged in the same practice discussed in Brown, missing in the present case is mutuality—that is, any evidence that Gomez was personally made aware of this practice or induced to testify because of this prac- tice. See id., 422 n.14 (obligation to disclose is triggered based on mutual understanding). Furthermore, at issue in Brown was whether the state had violated Brady by failing to disclose its implied understanding with Foster. Id., 389, 403. The present case, in contrast, is focused on whether the state was obligated to correct false or misleading testimony given at trial. Although “Napue and Brady are ‘cousin[s]’ ” representing similar prin- ciples; Gomez v. Commissioner of Correction, supra, 336 Conn. 182; the constitutional demands under each case are unique. The majority focuses on whether the New London state’s attorney’s office was engaged in the same practice outlined in Brown. At no point in the majority’s opinion, however, does it specify which part of Gomez’ trial testimony would warrant correction if the habeas court on remand unveils that such a practice was in place. Gomez testified that he never spoke to prosecutors before trial. Accordingly, it is unclear which statements Gomez made at trial would require correction.

The majority further holds that a remand in the present case is necessary because, given that Brown was decided after the petitioner’s habeas trial, Carney, Smith, and Narducci may have testified under a “misapprehension” about what constitutes an “agreement” for purposes of Napue/Giglio. I do not agree that Brown broke new ground.

In 2019, three years before the petitioner’s habeas trial, this court contemplated the effects of “the state’s prac- tice of informal, off-the-record leniency understandings with cooperating witnesses.” Marquez v. Commissioner of Correction, supra, 330 Conn. 603. In Marquez, this court stated: “Although it might very well be accurate that no definitive promises have been made by the state, and, even if any possible outcomes [for a cooperating witness] as described to counsel might be ‘tentative,’ experienced counsel operating in a courthouse in which he or she is familiar with the practices of prosecutors and presiding judges can comfortably advise the wit- ness of the possible credit that might follow from his testimony. . . . [T]hese ‘hypothetical’ outcomes serve as a real incentive to motivate a witness to testify for the state.” Id., 604. Marquez clarified what was already well established, namely, that Napue/Giglio obligates a prosecutor to correct testimony at trial that “substan- tially mischaracterizes the nature of the inducement [to testify] . . . .” State v. Paradise, 213 Conn. 388, 400, 567 A.2d 1221 (1990), overruled in part on other grounds by State v. Skakel, 276 Conn. 633, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). I, therefore, do not agree with the majority’s presumption that the prosecutors in the present case may have been unaware that they had an obligation to correct any testimony from Gomez that misled the jury as to an agreement.

To support its decision to remand for further fact- finding, the majority cites State v. Floyd, 253 Conn. 700, 756 A.2d 799 (2000). In Floyd, the defendant, prior to trial, filed a motion for discovery and inspection request- ing, among other things, “any inducement or reward offered to a witness . . . in return for [his] testimony . . . .” (Internal quotation marks omitted.) Id., 724–25. The state disclosed the arrest record of a witness, Michael Younger, as well as pending charges against him and his probation status. Id., 725. At trial, Younger denied receiving any consideration for his testimony; id., 726; and the prosecutor stated, during rebuttal argument, that “there was no evidence of a deal between the state and Younger by which Younger would receive favorable treatment in connection with his pending . . . charges in exchange for his testimony.” Id., 729. Following the defendant’s conviction, his appellate counsel obtained information concerning Younger’s pending charges that the state had failed to disclose, specifically, that Younger ultimately received a favorable disposition of his charges. Id., 730–31 and n.22. The defendant then filed a motion for rectification or augmentation of the trial court record and requested an evidentiary hearing to determine, among other things, whether the state had failed to disclose to defense counsel the existence of an agreement between the state and Younger. Id., 731–32. This court forwarded the motion to the trial court, which the trial court denied. Id., 732. The defendant then filed a motion with this court, requesting a review of the trial court’s denial of his motion. Id. This court granted the motion for review and “ordered the trial court to hold an evidentiary hearing to determine whether Younger and the state had a plea agreement when Younger testi- fied at trial.” Id.

The majority’s reliance on Floyd is misplaced. First, the court in Floyd ordered the trial court to conduct an evidentiary hearing in light of appellate counsel’s obtaining various files that newly revealed the state’s failure to disclose information relating to the disposition of Younger’s case. See id. In the present case, however, the majority does not remand for further fact-finding because new information was brought to light. Instead, the majority remands on the ground that the facts of an unrelated case, namely, Brown, may prompt a different line of questions and responses during the habeas pro- ceeding. I am not aware of any case in which this court ordered a remand for an evidentiary hearing on the basis of testimony in an unrelated case that might yield new facts. Moreover, unlike in Floyd, the petitioner in the present case never asked this court for the relief it now directs. Indeed, the petitioner was aware of Brown and cited to it several times in his brief to this court, but not as a basis for a new evidentiary hearing. Instead, without providing the parties notice or an opportunity to brief or argue the issue, the majority sua sponte affords the peti- tioner with an opportunity to retry his case. In my view, the present record is sufficient to address the petitioner’s appeal on the merits and to consider the habeas court’s decision in light of how the case was actually tried. I conclude by observing that the majority’s decision in this appeal expands the outer bounds of our Napue/Giglio jurisprudence. Requiring the habeas court to consider whether the testimony in an unrelated case contradicts factual findings in the present case, despite the habeas court’s decision to credit the testimony to the contrary by multiple officers of the court, both encourages specula- tion and blurs the lines of what constitutes evidence of a mutual understanding for purposes of Napue/Giglio. I do not believe it is our place to remand a case due to the mere suspicion of wink and nod dealmaking, particularly when “we will not lightly presume that the [prosecutor] misrepresented the true nature of the state’s agreement with [the witness]. . . . Nor will we speculate as to what factors the [prosecutor] legitimately may have considered in reaching his decision . . . .” State v. Satchwell, 244 Conn. 547, 563, 710 A.2d 1348 (1998). There is nothing on this record that supports this expansion of our Napue/ Giglio jurisprudence.

The majority’s decision “place[s] prosecutors in the untenable position of being obligated to [correct testi- mony that is not false or misleading] or to forgo the award of favorable treatment to a participating witness for fear that they will be accused of withholding evidence of an agreement.” Bell v. Bell, 512 F.3d 223, 234 (6th Cir.), cert. denied, 555 U.S. 822, 129 S. Ct. 114, 172 L. Ed. 2d 35 (2008). The majority’s analysis means, as the Appel- late Court aptly stated, that “no court [can] ever credit a witness’ testimony that he or she testified truthfully and voluntarily to their own detriment [unless the wit- ness] also testif[ies] that they had received a promise or assurance from the state even if no such promise or assur- ance was ever made.” (Emphasis in original.) Moore v. Commissioner of Correction, supra, 227 Conn. App. 510. Because I would affirm the Appellate Court’s judg- ment, I respectfully dissent.

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.

All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.

The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ DARNELL MOORE v. COMMISSIONER

OF CORRECTION (SC 21080)

Mullins, C. J., and McDonald, D’Auria, Ecker, Alexander, Dannehy and Bright, Js.* Syllabus The petitioner, who had previously been convicted of murder, sought a writ of habeas corpus, claiming that the state had violated his constitutional rights during his underlying criminal trial by, inter alia, failing to disclose an informal cooperation agreement between the state and a witness, G, who provided critical testimony for the state in the petitioner’s criminal case. G had been separately charged with a series of crimes in connection with the murder with which the petitioner had been charged, including carrying a pistol or revolver without a permit and hindering prosecution in the second degree, and those charges remained pending at the time of the petitioner’s criminal trial. Prior to G’s testimony, the petitioner’s defense counsel sought to discover whether there had been any cooperation agreement or understand- ing of leniency between the state and G, to which the prosecutor responded that G had not been given any assurances. During cross-examination at the petitioner’s criminal trial, G answered “[n]o” when asked if anyone had led him to believe that testifying against the petitioner might benefit him in his own criminal case. G also testified that he was “hoping” that his cooperation and testimony would help him at his own sentencing. Shortly after the petitioner was convicted and sentenced, G entered a plea as to the crime of hindering prosecution in the third degree and was sentenced, in accordance with his plea agreement, to a total effective sentence of five years of incarceration, fully suspended, and three years of probation. At the petitioner’s habeas trial, the habeas court heard testimony from G, G’s defense counsel, and the three prosecutors who were involved in the petitioner’s criminal trial, all of whom testified that there was no cooperation agreement between G and the state prior to or during the petitioner’s criminal trial. The habeas court concluded that there was no cooperation agreement between G and the state and rendered judgment denying the petitioner’s habeas petition. The Appellate Court affirmed the habeas court’s judgment, and the petitioner, on the granting of certification, appealed to this court, contending, inter alia, that, contrary to the conclusion of the habeas court, the state had entered into an informal cooperation agreement with G and then failed to correct G’s testimony denying the existence of that agreement, in violation of Napue v. Illinois (360 U.S. 264). Held: *

This case originally was argued before a panel of this court consisting of Chief Justice Mullins and Justices D’Auria, Ecker, Alexander, Dan- nehy and Bright. Thereafter, Justice McDonald was added to the panel and has read the briefs and appendices, and listened to a recording of oral argument prior to participating in this decision.

This court concluded that the record was insufficient to determine whether G, G’s defense counsel, and the prosecutors involved with the petitioner’s criminal trial, all of whom testified at the petitioner’s habeas trial, proceeded under a misapprehension as to what constitutes a cooperation agreement for purposes of Napue, and, accordingly, this court remanded the case to the habeas court for further factual findings but retained jurisdiction over the case for the purpose of ultimately deciding the appeal.

The fact that a prosecutor has afforded favorable treatment to a cooperating witness in that witness’ criminal case, standing alone, does not establish the existence of an underlying promise of leniency in exchange for testimony.

Accordingly, this court rejected the petitioner’s claim that this court should infer that there was an informal cooperation agreement between G and the state merely because the record contained evidence of “conspicuous” leni- ency in connection with G’s criminal case and there was no other reasonable conclusion to draw from the record.

This court clarified that, to properly protect the due process rights of crimi- nal defendants, prosecutors have a duty to correct false or substantially misleading testimony regarding both formal and informal agreements with cooperating witnesses, including those that are implied, unwritten, or tacit.

Moreover, in considering whether there is evidence of a cooperation agree- ment or understanding of leniency between a cooperating witness and the state, courts should consider whether the prosecutor, by his words or actions, created an expectation in the witness that the state would provide leniency and whether the witness acted on the basis of that expectation, and courts should also examine the consideration that the state provided to the coop- erating witness.

In remanding the case to the habeas court for further factual findings, this court relied in part on Brown v. Commissioner of Correction (230 Conn. App. 384), which was decided after the habeas trial in the present case and in which the Appellate Court concluded that the state in that case should have informed the petitioner, B, of an undisclosed cooperation agreement or understanding of leniency between a cooperating witness and the office of the state’s attorney for the same judicial district involved in the prosecution of the petitioner in the present case.

Specifically, in Brown, the state’s attorney testified at B’s habeas trial that, in virtually all cases, his office would not make any promises to a cooperat- ing witness regarding a future plea offer but that the office had a practice of informing cooperating witnesses that, if they testify, and if the prosecutor deems their testimony to be truthful, the prosecutor would bring the wit- ness’ cooperation to the attention of the judge presiding over his criminal case, with the expectation that doing so would likely benefit the witness in his own criminal case.

Thus, in light of this testimony in Brown regarding the practice of pros- ecutors in this particular state’s attorney’s office, around the time that the petitioner in the present case was prosecuted, of communicating to cooperating witnesses what they can expect in exchange for their testimony, and given that G, G’s defense counsel, and the prosecutors involved in the petitioner’s criminal case did not have the benefit of knowing about the holding in Brown when they testified at the petitioner’s habeas trial, this court concluded that the record was insufficient to determine whether they all testified at the petitioner’s habeas trial under a misapprehension as to what constitutes a cooperation agreement for purposes of Napue.

This court directed the habeas court on remand to determine whether the past practice of the prosecutors in the particular state’s attorney’s office responsible for prosecuting both the petitioner in the present case and B was employed in the present case and whether, because of that practice, the testimony of G, G’s defense counsel and the prosecutors at the petitioner’s habeas trial may have been affected by a misunderstanding as to what con- stitutes an agreement or understanding between a cooperating witness and the state for purposes of Napue.

(Three justices dissenting in one opinion) Argued April 8—officially released August 18, 2026 Procedural History Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, M. Murphy, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to the Appellate Court, Elgo, Moll and Clark, Js., which affirmed the habeas court’s judgment, and the petitioner, on the granting of certi- fication, appealed to this court. Further proceedings. Denis J. O’Malley III, assistant public defender, for the appellant (petitioner).

Danielle Koch, assistant state’s attorney, with whom, on the brief, were Paul J. Narducci, state’s attorney, Angela Macchiarulo, supervisory assistant state’s attor- ney, and David Smith, senior assistant state’s attorney, for the appellee (respondent).

Opinion McDONALD, J. It is implicit in any concept of ordered liberty that a state “may not knowingly use false evi- dence, including false testimony, to obtain a tainted conviction . . . .” Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). In this certified appeal, we consider whether that bedrock principle of constitutional law is violated when a cooperating witness denies under oath both the existence of any agreement with the state and that he expects any consideration from the state in his separate criminal case in exchange for his testimony, despite the fact that the state has com- mitted, either expressly or by implication, to bringing the witness’ cooperation to the attention of the judge presiding over the witness’ criminal case. The petitioner, Darnell Moore, appeals from the judgment of the Appel- late Court, which affirmed the habeas court’s judgment denying his third amended petition for a writ of habeas corpus. See Moore v. Commissioner of Correction, 227 Conn. App. 487, 489, 519, 321 A.3d 470 (2024). He claims that the state entered into an informal cooperation agreement with Samuel Gomez, who provided critical testimony for the state in the petitioner’s criminal case, and then failed to correct Gomez’ testimony denying the existence of the agreement. He contends that, because the record included evidence of conspicuous leniency for Gomez in connection with Gomez’ criminal case, and because there is no other reasonable conclusion to draw from the record, this court should infer that there was an informal cooperation agreement between Gomez and the state. Although we reject the petitioner’s analysis, in light of testimony regarding the practice of prosecutors in the office of the state’s attorney for the judicial dis- trict of New London, around the time that the petitioner was prosecuted there, of communicating to cooperating witnesses what they can expect in exchange for their tes- timony; see Brown v. Commissioner of Correction, 230 Conn. App. 384, 406, 412–13, 330 A.3d 134 (describing consideration prosecutors in New London state’s attor- ney’s office regularly provided to cooperating witnesses), cert. denied, 351 Conn. 921, 333 A.3d 103 (2025); we conclude that the record before us is insufficient for this court to determine whether Gomez and the attorneys who testified at the petitioner’s habeas trial did so under a misapprehension as to what constitutes a coopera- tion agreement for the purposes of Napue. Because that uncertainty concerns the factual foundation on which this appeal must be decided, we exercise our authority under Practice Book § 60-21 and remand the case to the habeas court for an evidentiary hearing. See, e.g., State v. Floyd, 253 Conn. 700, 730–32, 756 A.2d 799 (2000). We retain jurisdiction over this case for the purpose of deciding the appeal following the habeas court’s factual determinations on remand.

The relevant facts and procedural history are set forth in the Appellate Court’s opinion; see Moore v. Commis- sioner of Correction, supra, 227 Conn. App. 489–97; which we summarize along with other pertinent undis- puted facts in the record. In August 2010, the state charged the petitioner with murder in violation of Gen- eral Statutes § 53a-54a (a). The case was brought in the judicial district of New London and tried to a jury in December 2012. During the petitioner’s criminal trial, Gomez testified for the state that he had, among other things, provided the petitioner with the murder weapon and driven the petitioner to and from the scene of the crime. Prior to Gomez’ testimony, the petitioner’s defense counsel informed the trial court that Gomez had been separately charged with a series of crimes related to his conduct in this case and that Gomez’ charges remained open and pending in the New London judicial district. The petitioner’s defense counsel also informed the trial court that he had asked the prosecutor whether there was any cooperation agreement or understanding of leniency between Gomez and the state, to which the prosecutor responded that Gomez’ defense counsel had not been given any assurances.

During cross-examination, the petitioner’s defense counsel asked Gomez if he had committed the offenses with which he was charged—carrying a pistol or revolver without a permit in violation of General Statutes (Rev. to 2009) § 29-35 (a), a felony that carries a maximum sentence of five years of incarceration and a mandatory minimum of one year; see General Statutes (Rev. to 2009) § 29-37 (b); and hindering prosecution in the sec- ond degree in violation of General Statutes § 53a-166, a class C felony that carries a maximum sentence of ten years of incarceration.2 See General Statutes (Rev. to 2009) § 53a-35a (7), as amended by Public Acts 2010, No. 10-36, § 18 (P.A. 10-36). Rather than invoking his fifth amendment right not to incriminate himself while his own criminal case remained pending, and in which he had entered a plea of not guilty, Gomez readily answered in the affirmative. Although he admitted under oath to committing these serious felonies, Gomez answered “[n]o” when asked if anyone had led him to believe that testifying at the petitioner’s criminal case might benefit him in his own case. He also testified that he did not know why the charges against him had not been resolved and that he was still going to court for his pending criminal case. When asked if he intended to cut a deal with the state after his testimony in the petitioner’s case, Gomez answered that he was “hoping for the best.” Gomez also confirmed that he was hoping that his testimony would help him at sentencing.

The jury returned a guilty verdict, and the trial court sentenced the petitioner to a total effective sentence of fifty-three years of incarceration. Less than ten days after the court sentenced the petitioner in this case, Gomez pleaded guilty, pursuant to the Alford doctrine,3 to one count of hindering prosecution in the third degree in violation of General Statutes (Rev. to 2009) § 53a-167, which is a class D felony that carries a sentence of up to five years of incarceration. See General Statutes (Rev. to 2009) § 53a-35a (8), as amended by P.A. 10-36, § 18. The trial court sentenced Gomez in accordance with a plea agreement that he entered into with the state—five years of incarceration, fully suspended, with three years of probation—and the state nolled the remaining charges. The petitioner commenced this habeas action in 2015 and filed the operative third amended petition for a writ of habeas corpus in April 2021. In the third count of the operative petition, which is the only one relevant to this appeal, the petitioner alleged that the state had failed to disclose consideration given to Gomez in exchange for his testimony and that the prosecutor had knowingly solicited Gomez’ false testimony concerning that consid- eration and allowed that testimony to stand uncorrected. After a one day trial in March 2022, the habeas court, M. Murphy, J., in August 2022, issued a memorandum of decision and denied the petition. As to count three, the court found that the evidence did not support the conclusion that there was any cooperation agreement or leniency understanding between Gomez and the state prior to or during the petitioner’s criminal trial. The habeas court granted the petition for certification to appeal, and the petitioner appealed from the habeas court’s judgment. The Appellate Court affirmed. See Moore v. Commissioner of Correction, supra, 227 Conn. App. 519. This certified appeal followed.

I

On appeal, the petitioner contends that the prosecutor violated his constitutional due process rights by improp- erly eliciting testimony from Gomez that substantially misled the jury regarding his motivation to testify and by failing to correct that testimony. The petitioner argues that this court’s conception of an agreement for purposes of the prosecutor’s duty to correct misleading testimony under Napue has evolved considerably and that, pursu- ant to our decision in Gomez v. Commissioner of Correc- tion, 336 Conn. 168, 176–78, 243 A.3d 1163 (2020), we should infer the existence of a cooperation agreement or leniency understanding between Gomez and the state because Gomez received “conspicuous leniency” in his own criminal case and the facts in the present case allow for no other reasonable conclusion. We agree with the United States Court of Appeals for the Second Circuit “that the fact that a prosecutor afforded favorable treat- ment to a government witness” in that witness’ criminal case, “standing alone, does not establish the existence of an underlying promise of leniency in exchange for testimony”; Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003); and reject the petitioner’s proposition as overly broad.

However, we also reject the interpretation of Napue and its progeny advocated by the respondent, the Com- missioner of Correction. The respondent argues that the evidence at the habeas trial established that there was no cooperation agreement or leniency understanding between Gomez and the state and, therefore, that Gomez’ testimony did not need to be corrected. The respondent claims that, if statements regarding an agreement or understanding between a cooperating witness and the state “didn’t come from a state actor’s mouth, [they are] not anything that the state is responsible for disclosing or correcting because there is nothing to disclose . . . [or] correct.” We conclude that this standard is too narrow to protect the due process rights of criminal defendants. In light of conflicting interpretations of what con- stitutes a cooperation agreement or understanding of leniency, we take this opportunity to clarify the proper standard that courts in Connecticut should apply in considering whether there was “evidence of any under- standing or agreement” between a cooperating witness and the state. Giglio v. United States, 405 U.S. 150, 155, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). We have recognized that “the state’s knowing presenta- tion of false testimony regarding the benefits that have been afforded to a cooperating witness may implicate two related but distinct rights protected by the due process clause of the fourteenth amendment.” Gomez v. Commis- sioner of Correction, supra, 336 Conn. 182. “First, under Brady [v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)] and its progeny, the state may not suppress material, exculpatory evidence, including evidence that tends to undermine the credibility of the state’s witnesses. Second, under Napue and its progeny, the state may not knowingly rely on the presentation of false or substantially misleading evidence to the jury, including evidence regarding the benefits that have been afforded to cooperating witnesses, to obtain a crimi- nal conviction.” Gomez v. Commissioner of Correction, supra, 182. “[U]nlike Brady, [t]he harm associated with a Napue violation is not limited to a specific defendant, but instead undermines the credibility of the criminal justice system as a whole . . . .” (Citation omitted; inter- nal quotation marks omitted.) Id., 183. In this case, the petitioner solely makes a Napue claim. “[D]ue process is [also] . . . offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears.” (Internal quotation marks omitted.) Id., 175. “Even if the denial of a leniency agree- ment is not outright false, but only substantially mischar- acterizes the nature of the agreement, we have indicated that the state is obliged to correct the misconception.” (Internal quotation marks omitted.) Marquez v. Commis- sioner of Correction, 330 Conn. 575, 593, 198 A.3d 562 (2019). Most critically, we have clarified that “[a] new trial is required if the false [or substantially misleading] testimony could . . . in any reasonable likelihood have affected” the jury’s verdict of guilty. (Internal quotation marks omitted.) State v. Smith, 313 Conn. 325, 349, 96 A.3d 1238 (2014); see also, e.g., Gomez v. Commissioner of Correction, supra, 336 Conn. 186.

At the outset, courts consider whether there is “an undisclosed agreement or understanding between the cooperating witness and the state.” (Emphasis omitted; internal quotation marks omitted.) Gomez v. Commis- sioner of Correction, supra, 336 Conn. 180. Although Brady was concerned primarily with the disclosure to a defendant, the crux of a Napue violation—and the focus of our recent decisions—is the lack of disclosure to the jury. See, e.g., id., 181–82. Napue’s requirements are not limited to testimony regarding formal agreements. To effectively address the credibility and impeachment concerns at issue with cooperating witnesses, the pros- ecution must correct misleading testimony denying the existence of an agreement or understanding, even if the evidence merely suggests that there was an informal understanding of leniency between a state’s witness and the state. See, e.g., State v. Floyd, supra, 253 Conn. 740–42; Turner v. Commissioner of Correction, 181 Conn. App. 743, 758–59, 187 A.3d 1163 (2018); see also, e.g., Bell v. Bell, 512 F.3d 223, 233 (6th Cir.) (conclud- ing that “a less formal, unwritten or tacit agreement” between cooperating witness and prosecution is possible impeachment material), cert. denied, 555 U.S. 822, 129 S. Ct. 114, 172 L. Ed. 2d 35 (2008); United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (in addition to evidence of explicit agreement between cooperating witness and government, “facts which imply an agree- ment would also bear on [the witness’] credibility”); Ware v. State, 348 Md. 19, 41, 702 A.2d 699 (1997) (“an agreement or understanding between the witness and the [s]tate need not be formal or detailed to come within the prosecutor’s duty to disclose”); People v. Cwikla, 46 N.Y.2d 434, 442, 386 N.E.2d 1070, 414 N.Y.S.2d 102 (1979) (despite absence of “express promise” of leniency, prosecutor should have disclosed “strong inference . . . of an expectation of leniency”).

As we noted in Marquez, “informal, off-the-record leni- ency understandings with cooperating witnesses”; Mar- quez v. Commissioner of Correction, supra, 330 Conn. 603; carry with them “risks that threaten the efficient and fair administration of justice.” Id., 605. Although “experienced counsel . . . can comfortably advise the wit- ness of the possible credit that might follow”; id., 604; jurors, who “are not well versed in the nuanced vagaries of such leniency agreements”; id., 605; are “[l]eft out of [the] equation . . . .” Id., 604. We are troubled by this because “[t]he jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.” Napue v. Illinois, supra, 360 U.S. 269.

The issue of leaving the jury out of the equation is exemplified by testimony quoted by the Appellate Court in its decision in Brown v. Commissioner of Correction, supra, 230 Conn. App. 384. In Brown, State’s Attorney Paul J. Narducci, who supervises the New London state’s attorney’s office, the same office that prosecuted the petitioner and Gomez, testified during the habeas trial of the petitioner in Brown regarding his office’s handling of agreements with cooperating witnesses. See id., 390, 405–406. According to his testimony, in virtually all cases, the prosecutors in that office, at the time, “[did] not make any specific promises concerning any offers that [were] being made.” (Internal quotation marks omitted.) Id., 406. Instead, the prosecutors told the witnesses that, “in the past, people who [came] in to testify truthfully and accurately, that information is considered by the prosecuting authorities in determining a recommenda- tion. And if they do testify truthfully and completely and accurately, that information will be made available to the sentencing judge, but [the prosecutors] do not make any promises, any specific promises, as it relates to any offense.” (Internal quotation marks omitted.) Id. He added that the prosecutors also told witnesses that “it’s expected that you can testify that you’re hoping for some consideration in exchange for your complete, accurate and truthful testimony.” (Internal quotation marks omitted.) Id.

This information was presumably conveyed to the cooperating witness in Brown sometime between when the petitioner in that case was arrested in November 2013 and when he was convicted in October 2014. See id., 386, 388. Nevertheless, Narducci did not view these representations made to cooperating witnesses as consti- tuting exculpatory material that needed to be disclosed under Brady. See id., 405–409, 413. The habeas court in Brown agreed, concluding that “the petitioner failed to demonstrate the existence of an undisclosed agree- ment through which [the cooperating witness] would receive consideration from the state in exchange for her testimony at the petitioner’s [criminal] trial.” (Internal quotation marks omitted.) Id., 395–36.

The Appellate Court disagreed with Narducci and the habeas court, concluding that “Narducci’s statements suggested an informal understanding to provide con- sideration to [the cooperating witness] in exchange for her testimony at the petitioner’s [criminal] trial.” Id., 414. It further concluded that “the statements strongly suggest[ed] that the past practice that Narducci described would apply to [the cooperating witness] if she testified favorably at the petitioner’s [criminal] trial. Thus, the statements reasonably [gave] rise to an understanding that, in exchange for her cooperation, Narducci would provide [the cooperating witness] with a favorable plea deal in connection with her pending charges and bring her cooperation to the attention of the court at the time of her sentencing.” Id., 413.

The Appellate Court further concluded that it was of “no consequence to [its] evaluation of Narducci’s state- ments that he did not describe with greater particularity the consideration that he had suggested . . . or . . . that he testified as to his belief that he had not extended an ‘offer’ to [the cooperating witness].” Id. This is because “a prosecutor’s obligation to disclose evidence that the state induced a cooperating witness to testify . . . is not triggered by a prosecutor’s use of talismanic words or phrases, or what might be deemed formalized commit- ments from the state.” Id., 414.

Through the practice that Narducci described, all parties involved would know, without affirmatively acknowledging the existence of what is implicitly under- stood, that, if a cooperating witness testified, and if the testimony was deemed truthful by the prosecutor, the prosecutor would bring the witness’ cooperation to the attention of the judge presiding over the witness’ crimi- nal case, with the expectation that doing so would more likely than not benefit the witness in his own criminal case. Our concerns with that practice are twofold. First, the practice motivates a cooperating witness to testify for the state but withholds the basis for that motivation from the jury. Thus, the jury is deprived of the opportunity to properly and fully assess how the witness’ credibility is affected by that motivation. As we have observed, “[o]nly through complete and candid disclosure of a witness’ interest can the jury accurately gauge the credibility of the testimony proffered.” State v. Ouellette, 295 Conn. 173, 190, 989 A.2d 1048 (2010). Second, the practice further impacts the usefulness of testimony that is already considered questionable. For more than 150 years, this court has recognized “that [accomplice] testimony is of a suspicious character . . . and calls for scrutiny on the part of the jury . . . .” State v. Stebbins, 29 Conn. 463, 473 (1861); see also, e.g., United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987) (“[i]t is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence”), cert. denied sub nom. Nelson v. United States, 484 U.S. 1026, 108 S. Ct. 749, 98 L. Ed. 2d 762 (1988); cf. Innocence Project, Explore the Numbers: Innocence Project’s Impact (2026), available at https:// innocenceproject.org/exonerations-data/ (last visited August 12, 2026) (noting that “involved informants” are one of “the most common causes of wrongful conviction”). This is because “[t]he conditions of character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he testifies . . . .” (Citation omitted; internal quotation marks omitted.) State v. Ouellette, supra, 295 Conn. 191. When there exists only a “wink and nod” understanding between a cooperating witness and the state, the witness is even more motivated to lie or embellish while testifying to meet with the prosecutor’s approval and to receive the expected leniency. See, e.g., E. Mazur, Note, “Rational Expectations of Leniency: Implicit Plea Agreements and the Prosecutor’s Role as a Minister of Justice,” 51 Duke L.J. 1333, 1336 (2002) (“[r]esearch shows that witnesses are more likely to lie, more likely to cooperate, and more likely to fabricate when agents of the state make implicit rather than explicit promises of leniency”); see also, e.g., United States v. Bagley, 473 U.S. 667, 683, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (opinion announcing judgment) (“[t]he fact that the [inducement] was not guaranteed through a promise or binding contract, but was expressly contingent on the [g]overnment’s satisfac- tion with the end result, served only to strengthen any incentive to testify falsely in order to secure a convic- tion”); Jackson v. State, 770 A.2d 506, 516 (Del. 2001) (acknowledging that implicit promises by state “might enhance the propensity of a witness . . . to embellish his testimony in order to increase the likelihood of favorable treatment” in his pending criminal case). If the leniency understanding based on an informal agreement between the cooperating witness and the state is not then put before the jury, the jury may have no reason to consider whether the witness is testifying truthfully or shading his testimony in favor of the state to curry favor with the prosecutor. This concern becomes even greater when the cooperating witness wrongly denies the existence of the implicit agreement and the prosecutor fails to correct the misleading testimony. In that situation, the jury not only does not learn about the implicit agreement but has been expressly told that no such agreement exists.

With those issues in mind, we reaffirm that, to properly protect the due process rights of criminal defendants, prosecutors have a duty to correct false or substantially misleading testimony regarding both formal and infor- mal agreements with cooperating witnesses, including those that are implied, unwritten, or tacit. This is in line with our prior decisions acknowledging the importance of not withholding from the jury critical information that would help it assess just how motivated a cooperating witness might be to testify favorably for the state. See, e.g., Marquez v. Commissioner of Correction, supra, Conn. 604–605.

For greater clarity regarding informal agreements, contract law principles serve as a helpful analytic frame- work. We have held that “a plea agreement is akin to a contract” and that the “well established principles of contract law can provide guidance in the interpretation of a plea agreement . . . .” (Citation omitted; internal quota- tion marks omitted.) State v. Kallberg, 326 Conn. 1, 15, 160 A.3d 1034 (2017). The same is true for cooperation agreements. See, e.g., State v. Rivers, 283 Conn. 713, 717–18 and n.6, 724–25, 931 A.2d 185 (2007) (analyzing plea and cooperation agreement under contract law prin- ciples). “[T]he primary goal of contract interpretation is to effectuate the intent of the parties . . . . In ascertaining that intent, we employ an objective standard and look to what the parties reasonably understood to be the terms of the . . . agreement on the basis of their words and con- duct, and in light of the circumstances surrounding the making of the agreement and the purposes they sought to accomplish.” (Citation omitted; internal quotation marks.) State v. Kallberg, supra, 15.

Specifically, we look to contract law principles govern- ing implied in fact contracts. An implied in fact contract is a contract that “is inferred from the conduct of the parties though not expressed in words.” (Internal quo- tation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 804, 826 A.2d 1066 (2003). Such a contract would arise when “the conduct and acts of the parties show an agreement.” Brighenti v. New Britain Shirt Corp., 167 Conn. 403, 406, 356 A.2d 181 (1974). “It is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations.” Rahmati v. Mehri, 188 Conn. 583, 587, 452 A.2d 638 (1982). Importantly, the question “is not whether the defendant in fact expected to pay for the services but whether they were rendered under such circumstances that the defendant either knew, or, as a reasonable man, should have known, that the plaintiff expected compensation.” Butler v. Solomon, 127 Conn. 613, 616, 18 A.2d 685 (1941). In other words, as it relates to cooperation agreements, the question is whether the prosecutor, by his words or actions, created an expec- tation in the witness that the state would provide the witness with consideration for his testimony.

We find instructive decisions in other jurisdictions in which the courts considered the conduct of the prosecu- tor and the cooperating witness in determining whether there was an undisclosed cooperation agreement or leni- ency understanding between the witness and the prosecu- tion.4 In United States v. Shaffer, supra, 789 F.2d 682, a coconspirator testified against another coconspirator, implicating him in a narcotics operation. See id., 684–85. The cooperating witness had acquired assets, including a house, by using profits from the operation about which he testified. Id., 689. Although the government knew about these assets, it did not initiate forfeiture proceedings. See id. The United States Court of Appeals for the Ninth Circuit concluded that an undisclosed tacit agreement had been created, evidenced in part by the prosecution’s decision not to seek forfeiture of the witness’ ill-gotten assets in return for his testimony. See id. The govern- ment’s conduct provided the witness with an expectation that, if he cooperated, the government would allow him to avoid forfeiture. See id., 689–90. The Ninth Circuit affirmed the District Court’s order granting a new trial. Id., 691.

In Ware v. State, supra, 348 Md. 19, the cooperating witness was serving a life sentence for an unrelated mur- der. Id., 31–32. The witness filed a supplemental motion for reconsideration of his life sentence on the ground that he had come forward voluntarily to provide information in the criminal case against the defendant. See id., 32. During the hearing on the motion for reconsideration, the prosecutor in the defendant’s case testified and con- firmed that the witness would be testifying for the state. Id., 33. The court presiding over the witness’ motion for reconsideration held in abeyance the sentence modifica- tion until the resolution of the defendant’s criminal trial on the ground that the prosecutor’s position on the modification may be different after the witness testified. Id., 50.

Upon learning that the cooperating witness’ reconsid- eration hearing was pending when the witness testified against the defendant, the defendant supplemented an already filed motion for a new trial. Id., 34. Although the trial court denied the motion for a new trial on the ground that the state’s evidence against the defendant was overwhelming, it nevertheless concluded that there was “an ongoing [yearlong] relationship among the wit- ness, his defense counsel, and the prosecutor, in which the prosecutor’s actions . . . coupled with the manner in which the [court presiding over the witness’ motion for recon- sideration] left the reconsideration pending until after the [conclusion of the defendant’s criminal] trial, created [an] understanding, arrangement, or agreement . . . .” (Internal quotation marks omitted.) Id., 35. On appeal, Maryland’s highest court similarly concluded that the witness “could have reasonably expected that testimony favorable to the [s]tate at the [defendant’s] trial would redound to his benefit in the resolution of his pending motion for reconsideration.” Id., 51. Unlike the trial court, it further concluded that the suppressed evidence of an agreement or understanding between the witness and the state was material and that the suppression of this evidence undermined confidence in the outcome of the defendant’s criminal case. See id., 51–54. Accord- ingly, the case was remanded for a new trial. Id., 69. In both Shaffer and Ware, the actions of the prosecutor created an expectation in the witness and, likely based on that expectation, the witness testified for the state. In each of those cases, the implied agreement between the witness and the state had the potential to alter the jury’s assessment of the witness’ credibility, and, therefore, the jury should have known about the agreement. Thus, in determining whether there was an undisclosed coop- eration agreement or leniency understanding between a state’s witness and the state, a court should consider, as part of its analysis, any evidence demonstrating that the conduct of the prosecutor created an expectation of leniency in the witness and that the witness acted based on that expectation. Courts should also examine the consideration provided to the cooperating witness by the state. Although we have reaffirmed that the state’s favor- able treatment of a cooperating witness, on its own, does not establish the existence of an understanding between them, we agree with the Second Circuit that “the fact that a witness actually received favorable treatment may be relevant in establishing the existence of undisclosed promises of leniency when considered with other facts . . . .” Shabazz v. Artuz, supra, 336 F.3d 165–66 n.6. II

Turning to this case, we note first that the petitioner’s habeas trial occurred prior to the Appellate Court’s deci- sion in Brown. Similarly, the Appellate Court’s decision in this case was issued before its decision in Brown. Both underlying criminal cases, however, were tried within two years of each other in the judicial district of New London.

During the habeas trial in the present case, the habeas court heard testimony from Gomez,5 his defense counsel, Peter Catania, and three prosecutors—Attorneys Ste- phen Carney, David Smith, and Narducci—regarding whether there was an agreement between Gomez and the state. Crediting their testimony, the habeas court found that the testimony “[did] not show the existence of any agreement or understanding between Gomez and the state.” Accordingly, the habeas court rendered judg- ment denying the petition for a writ of habeas corpus. The Appellate Court determined that the habeas court’s finding was not clearly erroneous and affirmed its judg- ment. See Moore v. Commissioner of Correction, supra, 227 Conn. App. 511, 519. However, we observe that the testimony provided by Gomez and the attorney witnesses strikes a similar chord to the testimony in Brown. The record of the petitioner’s habeas trial reflects testimony indicating that formal plea discussions intentionally would not occur until after the conclusion of the peti- tioner’s criminal trial, that the prosecutors deliberately avoided making offers to Gomez so as not to “color” his testimony, that Gomez “hoped” that his testimony would benefit him in his own criminal case, and that Gomez’ defense counsel intended to use Gomez’ cooperation as “leverage” in later plea negotiations and so informed Gomez. Moreover, Carney testified several times that there “would not have been” any sort of agreement between Gomez and the state prior to Gomez’ testify- ing at the petitioner’s criminal trial. Taken together, it appears that this testimony may have been provided under the same mistaken understanding that Narducci harbored in Brown—that is, that the prosecution’s prac- tice of structuring communications with cooperating witnesses so that those witnesses can testify that they met with the prosecutors prior to the petitioner’s trial, and that [his defense counsel] never approached him about an offer from the state.” However, Gomez testified that he did not recall ever being approached by the prosecution “regarding a plea arrangement” and that he was never approached by Carney “regarding an offer,” not that he was never approached at all. Moreover, when Gomez was asked whether he recalled “ever meeting with the state’s attorney and [his] attorney in their office[s] before trial” and “ever discussing anything with . . . the state’s attorneys in an office,” he answered, “[n]o. I don’t recall.” (Emphasis added.) have received no promises, while nevertheless “hoping” for consideration in their own criminal cases based on their cooperation, does not create an informal cooperation agreement between the witnesses and the state. Given that the attorney witnesses did not have the benefit of knowing about the holding in Brown when they testified at the petitioner’s habeas trial, it is possible that their testimony would have been materially different with respect to whether there was a cooperation agreement or leniency understanding between Gomez and the state. We acknowledge that the Division of Criminal Justice has adopted a policy regarding cooperating witnesses that “recognizes the risks attendant to the practice of entering into vague, off-the-record, cooperation agree- ments” and requires that cooperation agreements be reduced to writing. (Internal quotation marks omitted.) Office of the Chief State’s Attorney, Connecticut Divi- sion of Criminal Justice Policies and Procedures (October 10, 2024) Policy 515 (Cooperating Witnesses) p. 1; see, e.g., State v. Flores, 344 Conn. 713, 741, 281 A.3d 420 (2022); see also, e.g., Gomez v. Commissioner of Correc- tion, supra, 336 Conn. 189 n.10. However, this policy, adopted in 2019 and amended in 2024, does nothing to protect the due process rights of criminal defendants whose trials occurred when the state utilized the prac- tice described by Narducci in Brown. Moreover, in this case, when considering whether there was a cooperation agreement or leniency understanding between Gomez and the state, the habeas court did not have the benefit of the description of the practice and the confirmation of its use. Thus, the record leaves this court unable to determine (1) whether this practice, which the Appel- late Court in Brown determined “suggested an informal understanding” between the cooperating witness and the state; Brown v. Commissioner of Correction, 230 Conn. App. 414; was utilized to persuade Gomez to testify for the state, and (2) whether Gomez’ testimony that he did not have a cooperation agreement with the state and that he was only “hoping for the best” with respect to the outcome of his criminal trial should, therefore, have been corrected by the prosecutor. See Napue v. Illinois, supra, 360 U.S. 269. This court faced an analogous concern in State v. Floyd, supra, 253 Conn. 700. In Floyd, after information about a potential violation under Brady came to light following the defendant’s conviction; see id., 730–31; the defen- dant filed a motion for rectification or augmentation of the record, seeking an evidentiary hearing to determine, among other things, “whether a plea [agreement] between the state and . . . [the cooperating witness] . . . [had been] disclosed to the trial court and to defense counsel . . . or whether its true nature was disguised or not disclosed . . . .” (Internal quotation marks omitted.) Id., 731–32. After the trial court denied the motion, the defendant “filed a consolidated motion, requesting this court to exercise its supervisory powers pursuant to what is now Practice Book § 60-2, and for review of the trial court’s denial of the defendant’s motion for rectification or augmentation of the record . . . .” Id., 732. “This court granted the defendant’s motion for review and ordered the trial court to hold an evidentiary hearing to determine whether [the cooperating witness] and the state had a plea agreement when [he] testified . . . .”6 Id. Because it is unclear whether the testimony elicited during the habeas trial in this case reflected an under- standing by the attorneys involved of an agreement that was materially narrower than the one the Appellate Court later recognized in Brown, we determine that, like in Floyd, we must remand the case to the habeas court for additional factual findings.7 See id., 730–32; see also Practice Book § 60-2 (8).

On remand, the habeas court must determine whether the past practice of the prosecutors in the New London state’s attorney’s office was employed in the present case and whether, because of that practice, the testimony at the habeas trial was affected by the same misunderstand- ing reflected in Brown as to what constitutes an agree- ment or understanding between a cooperating witness and the state. We emphasize that, in remanding this case, we express no view on the issue of whether there was such an agreement or understanding between Gomez and the state.8

The case is remanded to the habeas court for an eviden- tiary hearing in accordance with this opinion, and this court retains jurisdiction over this case for the purpose of any further appellate proceedings.

In this opinion D’AURIA, ECKER and BRIGHT, Js., concurred.

Moreover, as we previously have observed, “[t]here can . . . be no ques- tion but that the supervision of a case on appeal to this court is in” this court. State v. Pollitt, 199 Conn. 399, 415, 508 A.2d 1 (1986); see, e.g., id., 415–16 (concluding that record was “not . . . amenable to meaningful appellate review” and, in reliance on what is now Practice Book § 60-2, remanding case, sua sponte, for further proceedings); see also, e.g., In re Final Grand Jury Report Concerning the Torrington Police Dept., 197 Conn. 698, 717, 501 A.2d 377 (1985) (“[i]n the interests of justice, we have the power to remand a case for further proceedings even in the absence of reversible error by the trial court”).