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      RALPH BIRCH v. STATE OF CONNECTICUT
                    (SC 20138)
             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 Birch
   v. Commissioner of Correction (334 Conn. 37), which addressed the
   petitioner’s appeal from the denial of his habeas petition, that the peti-
   tioner 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 convic-
tion 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.; judg-
ment denying the petition, from which the petitioner,
on the granting of certification, appealed. Appeal dis-
missed.
   Andrew P. O’Shea, 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. On December 2, 1985, sixty-five year old
Everett Carr was found dead in his New Milford home,
the victim of multiple stab wounds and blunt force
trauma to the head. The petitioner, Ralph Birch, and
Shawn Henning were arrested and charged in connec-
tion with Carr’s murder, and, following separate trials,
both were convicted of felony murder. The petitioner
received a sentence of fifty five years imprisonment,
and, on appeal, this court upheld his conviction.1 State
v. Birch, 219 Conn. 743, 751, 594 A.2d 972 (1991). In
2015, the petitioner filed a petition for a new trial; see
General Statutes § 52-270 (a);2 on the basis of newly
discovered DNA and other evidence.3 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 peti-
tion for a writ of habeas corpus and the closely related
new trial and habeas petitions of Henning. The habeas
court, Sferrazza, J., rejected all of the claims advanced
in the four petitions, and the petitioner and Henning
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 incor-
rectly determined that the newly discovered DNA evi-
dence does not warrant a new trial. The petitioner
further claims that this court, in determining whether
a new trial is likely to result in a different outcome,
should consider the original trial evidence together with
all exculpatory evidence, even evidence that would not
otherwise support a petition for a new trial because it
was discovered by the petitioner 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 asserts that the three year limitation
period of § 52-582 (a) does not apply to a case, like the
present one, in which there is newly discovered DNA
evidence because, according to the petitioner, that limi-
tation period, having been deemed inapplicable to
newly discovered DNA evidence, also is inapplicable
to any other evidence that was unavailable at the time
of trial.
  In a separate opinion issued today, we have con-
cluded, 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 Birch v.
Commissioner of Correction, 334 Conn. 37, 69,         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 intervening events during pendency of
appeal, appellate court cannot afford appellant any
practical relief).
   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
     We also affirmed the conviction of Henning, who was sentenced to a
prison term of fifty years. See State v. Henning, 220 Conn. 417, 418, 431,
599 A.2d 1065 (1991).
   2
     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 . . . .’’
   3
     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 had recovered $1000 in cash and jewelry worth approximately
$10,000 from the crime scene, thereby refuting the state’s theory at the
petitioner’s criminal trial that the victim was murdered as part of a botched
burglary; (2) Todd Cocchia’s recantation of his criminal trial testimony that
the petitioner had confessed to murdering the victim and the testimony of
Cocchia’s mother corroborating Cocchia’s recantation; (3) the testimony of
four close associates of Robert Perugini that Perugini told them, contrary
to his criminal trial testimony, that the petitioner never confessed to murder-
ing the victim; and (4) 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.
