Jones v. State , 165 Conn. App. 576 ( 2016 )

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MELVIN JONES v. STATE OF CONNECTICUT,
STATE’S ATTORNEY’S OFFICE
(AC 37043)
DiPentima, C. J., and Lavine and Sheldon, Js.
Argued February 8—officially released May 17, 2016
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Allison M. Near, with whom were Richard A. Reeve
and, on the brief, Michael O. Sheehan, for the appel-
lant (petitioner).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Stacey Miranda, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
SHELDON, J. The petitioner, Melvin Jones, appeals
from the judgment of the trial court denying his petition
for a new trial on charges of capital felony in violation
of General Statutes (Rev. to 1989) § 53a-54b (3)1 and
carrying a pistol without a permit in violation of General
Statutes (Rev. to 1989) § 29-35,2 of which he was found
guilty by a jury in connection with the shooting death
of the victim, Wayne Curtis, as he sat in his vehicle on
Howard Avenue in New Haven on October 17, 1990. A
jury in the New Haven Superior Court found the peti-
tioner guilty on those charges at his retrial following
our Supreme Court’s reversal of his initial conviction
in 1993. We subsequently affirmed the petitioner’s con-
viction at the retrial in 1996.
In support of its claims against the petitioner at his
retrial, the state presented testimony from several eye-
witnesses who placed the petitioner, or a man looking
like him, at or near the scene of the shooting at or about
the time the victim was shot and killed. Some of the
eyewitnesses claimed that they saw the petitioner
arguing and/or fighting with the victim as the victim sat
inside his parked vehicle just before he was shot. All
of the eyewitnesses testified that when they saw the
petitioner or the man looking like him on that occasion,
he was wearing a camouflage jacket.
One eyewitness in particular, a drug addict and police
informant named Frankie Harris, not only identified the
petitioner as the man in the camouflage jacket she saw
running away from the scene of the shooting just after
she heard the sound of gunshots, but also testified that
as the man fled, she saw him take off the camouflage
jacket and throw it into a nearby dumpster. Harris fur-
ther testified that after the man left the area, she
retrieved the jacket from the dumpster and turned it
over to the police, through whom it was introduced in
evidence at trial. Although the jacket was connected
to the victim by the unexplained presence, in one of
its pockets, of a repair bill for work done on the victim’s
vehicle more than two years before the shooting, the
state presented no forensic evidence to link the peti-
tioner to the jacket, the victim, or the victim’s vehicle.
In his new trial petition, the petitioner claimed that
he was entitled to a new trial on the basis of newly
discovered DNA evidence that allegedly established the
reasonable probability that he would be acquitted of
all charges in connection with the victim’s death if he
were granted a new trial. The new evidence he relied
on in support of his petition was of two types. First, in
2010 and 2012, nuclear DNA testing using the STR
(Short Tandem Repeat) method was performed on two
samples of biological material collected from inside the
collar and the sleeves of the camouflage jacket, which
the petitioner allegedly threw into the dumpster as he
fled from the scene of the shooting. Such testing, he
claimed, revealed the presence of nuclear DNA from
at least two different individuals, neither of whom was
the petitioner. Also in 2012, mitochondrial DNA
(mtDNA) testing was performed on several hairs that
police investigators had found inside the victim’s vehi-
cle during their initial investigation following the shoot-
ing. Only three of those hairs were found to be suitable
for comparison. One such hair was a Caucasian type
hair that was found to contain mtDNA consistent with
that of the victim, a white male. The other two hairs
that were suitable for comparison were Negroid type
hairs that were found to contain mtDNA inconsistent
with that of the petitioner, a black male. The latter
results, claimed the petitioner, conclusively established
that he was not the source of any testable Negroid type
hairs found inside the victim’s vehicle.
At a court trial on the petition, the respondent, the
State of Connecticut, State’s Attorney’s Office, con-
ceded that both types of DNA evidence proffered by
the petitioner were newly discovered, but disagreed
that the introduction of such evidence at a new trial
would likely lead to the petitioner’s acquittal. The trial
court, after hearing testimony from several witnesses
and considering extensive briefs and oral argument,
agreed with the respondent and denied the petition.
This appeal followed. For the following reasons, we
agree with the trial court, and thus affirm its judgment
denying the petition.
To put the petitioner’s claim in his new trial petition
in its proper context, we must begin by setting forth
the factual and procedural history of the prosecution
that led to the petitioner’s challenged conviction. We
described that history as follows in our decision
affirming that conviction on direct appeal. ‘‘The [peti-
tioner] appealed to this court from a judgment of convic-
tion from his second trial. In the first proceeding, the
case was tried to the jury before Hadden, J., and the
[petitioner] was convicted of capital felony in violation
of § 53a-54b (3) and carrying a pistol without a permit
in violation of § 29-35. The [petitioner] appealed to our
Supreme Court. While that appeal was pending, the
[petitioner] filed a petition for a new trial, which the
trial court, Booth, J., granted.3 The Supreme Court then
considered the [petitioner’s] appeal, and reversed the
judgment of conviction and remanded the case for a
new trial.4 See State v. Jones, 234 Conn. 324, 662 A.2d
1199 (1995). The [petitioner] was tried to a jury for a
second time before Fracasse, J., and convicted of capi-
tal felony and carrying a pistol without a permit. He
was sentenced to life imprisonment without the possi-
bility of parole. . . .
‘‘The jury [at the second trial] reasonably could have
found the following facts. On the morning of October 17,
1990, Bonaventure Console, who resided at 365 Howard
Avenue, New Haven, saw the [petitioner] walking
toward an automobile parked across the street from
his home. A white male, later identified as the victim,
Wayne Curtis, was seated in the front of the vehicle.
Console had frequently seen the [petitioner] in that
neighborhood and later that same day . . . described
him to the police as a black male with braided hair who
always wore camouflage clothing.
‘‘Shortly thereafter, Nilda Mercado, an eleven year
old girl, passed the victim’s vehicle on her way to school.
Mercado witnessed a black male banging the head5 of
a white male, who was seated in the vehicle, against
the car door. As she walked past the car, Mercado heard
two gunshots fired. Immediately after the incident, Mer-
cado informed her aunt that the black man had four6
braids in his hair and wore camouflage clothing.
Although Mercado could not make a positive in-court
identification, she testified that the [petitioner] had sim-
ilar braids and the same features as the perpetrator.
‘‘Angel Delgado, a seventeen year old boy who lived
on Howard Avenue, was looking out a second story
window of his home at approximately 7:15 a.m. on Octo-
ber 17, 1990, when he witnessed the [petitioner] and
the victim across the street. The victim was seated
in a vehicle and the two men were arguing. Although
Delgado saw only the side of the [petitioner’s] face, and
his view may have been somewhat obscured by a tree,
he recognized the [petitioner] as someone he frequently
had seen around that neighborhood during the weeks
preceding the homicide. Delgado looked away for a
moment and then heard gunshots. When he looked
back, the [petitioner] was gone and the victim was lying
in the driver’s seat. Delgado saw a young girl, later
identified as Mercado, running down Howard Avenue.
He also described the [petitioner] as having four7 braids
and wearing camouflage clothing.
‘‘Harris, who also knew the [petitioner] from that
neighborhood, heard the shots and moments later saw
the [petitioner] run toward her, remove a camouflage
jacket and throw it in a nearby dumpster. She retrieved
the jacket, which contained a work order from a service
station for a wheel alignment performed on the victim’s
car. Harris admitted that she was a drug addict and a
police informant. Harris testified, however, that at the
time of the murder, she had not ingested any drugs and,
at the time she spoke to the police, she was informed
that she would not be paid for her information in con-
nection with this case.
‘‘Larry Hodge, also a narcotics user and police infor-
mant, first met the victim at a gas station on Route 80
in New Haven at 3 a.m. on October 17, 1990. Hodge
paid the victim for a ride to Anastasio’s truck stop in
New Haven. After Hodge exited the vehicle and began
to walk away, he saw a black male with braided hair
approach the victim and get into the vehicle. After learn-
ing of the victim’s death, Hodge, out of concern that
his fingerprints in the automobile would be identified
in the homicide investigation, contacted the police. In
his interview with the police, Hodge gave a sworn state-
ment identifying the [petitioner] from a photographic
array as the man he had seen get into the victim’s car.
Hodge later retracted that identification before the jury.
There was evidence that Hodge retracted the identifica-
tion because he feared retaliation by people who had
pressured him not to testify in the trial.
‘‘Officer Brendan Cannon of the New Haven police
department arrested the [petitioner] on October 19,
1990. At the time of his arrest, the [petitioner] had four
braids and was wearing a size extra small camouflage
jacket. . . . The camouflage jacket Harris retrieved
from the dumpster was size large.
‘‘Arkady Katznelson, an assistant state medical exam-
iner, testified that the victim had died from loss of blood
as a result of being shot in the abdomen at close range
and that he had suffered facial bruises consistent with
having had his head slammed against the . . . car door.
A second bullet was recovered from the driver’s side
door.’’ (Footnotes altered.) State v. Jones, 50 Conn.
App. 338, 340–43, 718 A.2d 470 (1998), cert. denied, 248
Conn. 915, 734 A.2d 568 (1999).
The petitioner’s defense at his second trial included
testimony from a new eyewitness, Pasquale DeMaio.
‘‘On direct examination, DeMaio testified that on the
morning of October 17, 1990, he was painting a house
located at 358–60 Howard Avenue. When he was inter-
viewed by the police later that day, and on another
occasion shortly thereafter, he informed the police that
he did not witness the homicide. DeMaio testified that
he feared getting involved and, therefore, he did not
disclose any information to the police on these two
occasions. In 1993, DeMaio contacted the authorities
and informed them that he had witnessed the homicide
and that the [petitioner] was not the perpetrator.
DeMaio testified that he contacted the police because
he was no longer fearful of testifying. He also admitted
that he came forward after the [petitioner’s] friends,
Frank LoSacco and Emma Jones, had contacted him.
On cross-examination, the state asked DeMaio why
LoSacco had contacted him and whether LoSacco had
mentioned anything that may have encouraged DeMaio
to contact the police. . . .
‘‘On cross-examination, DeMaio admitted that both
LoSacco and Emma Jones had informed him that the
[petitioner] was wrongly convicted, and that the state’s
witnesses were drug addicts and paid informants. The
state inquired whether those statements from Emma
Jones and LoSacco, or other factors, motivated DeMaio
to contact the authorities.’’ Id., 347–48.
All of the state’s eyewitnesses testified that the man
they saw at or near the time and place of the shooting
was wearing a camouflage jacket. Console and Mercado
both described him as wearing ‘‘an army jacket and
jeans.’’ Delgado identified him as wearing a camouflage
coat; Hodge said that he was wearing ‘‘a flannel jacket
or an army jacket . . . .’’ Like the other eyewitnesses,
DeMaio stated that the man he saw was wearing a
camouflage army jacket. Unlike the other witnesses,
however, he described that jacket as having a patch on
the back in the shape of the African continent.
The lack of forensic evidence in the case, either found
by forensic examiners on the jacket Harris retrieved
from the dumpster or recovered by the police from
inside the victim’s vehicle, was highlighted at trial. Test-
ing of various stains found on the jacket produced nega-
tive results for the presence of blood.8 Testing for the
presence of nitrates, nitrites or lead on the cuffs of the
jacket’s sleeves also produced negative results, indicat-
ing that no gunshot residue was present on the areas
tested. Comparisons of the petitioner’s hair to hairs
recovered from inside the victim’s vehicle did not pro-
duce a match, due to what the state’s expert witness
described as the poor quality of the samples seized from
the petitioner for comparison purposes. Furthermore,
although the police found nine identifiable fingerprints
and three identifiable palm prints in or on the victim’s
vehicle, the state’s fingerprint examiners testified that
no such prints had been left by the petitioner. Moreover,
the police officer who processed the victim’s vehicle
testified that it ‘‘[was not] . . . a well kept interior,
there was a lot of debris,’’ and that it did not look like
it had been taken to a car wash and vacuumed recently.
The state did present evidence that a Grippo’s Service
receipt was found in the jacket pocket. Peter Grippo,
the owner of Grippo’s Service, testified that the receipt
was for a wheel alignment he had performed on the
victim’s vehicle in July, 1988, more than two years
before the shooting.
The lack of forensic evidence on the jacket figured
prominently in the parties’ closing arguments.
Attempting to minimize its significance, the state
argued, ‘‘[C]ould blood have gotten on to the killer’s
jacket in this case? Sure, but did it? Nothing in the
evidence says it did, and the evidence, the coat itself,
it’s sitting over there, that was thrown in the dumpster
tells you to the contrary. The fact . . . that he didn’t
have any blood on his coat and he didn’t have any
gunshot residue on his coat and to claim that he did is
simply speculating from evidence that doesn’t exist.
. . . You also have Frankie Harris, who is both an eye-
witness and a circumstantial evidence witness. And
what do I mean by that? Who sees this man who she’s
seen around a whole bunch of other times running from
the crime scene after hearing gunshots, she sees him
throw the jacket that I didn’t pull out, but that’s over
there, not some jacket with an imaginary African design
on it, that jacket, into a dumpster. And in the pocket
of that jacket is a receipt from work done on the victim’s
car . . . .’’ Although the petitioner’s defense was that
the state’s eyewitnesses had misidentified him, his
counsel argued that the lack of forensic evidence on
the jacket meant that it, and thus by implication the
petitioner, ‘‘ha[d] nothing to do with the homicide.’’
As for the repair bill from Grippo’s Service, counsel
suggested that the police might have planted it in the
jacket pocket.
On March 25, 1996, despite the exculpatory eyewit-
ness testimony from DeMaio and the lack of forensic
evidence linking the petitioner to the victim or the crime
scene, the jury found the petitioner guilty on both
charges. Thereafter, the court sentenced the petitioner
to a total effective sentence of life imprisonment with-
out the possibility of parole.
On July 3, 2013, fifteen years after this court affirmed
his conviction on direct appeal, the petitioner filed the
instant petition for a new trial. In that petition, as pre-
viously noted, he alleged that two pieces of newly dis-
covered evidence provided reasonable cause for
granting him a new trial. First, he relied on the results
of DNA testing performed in 2010 and in 20129 on two
samples of biological material recovered from the cam-
ouflage jacket that Harris had retrieved from the dumps-
ter. Such testing was claimed to reveal the presence of
nuclear DNA from at least two different individuals,
neither of whom was the petitioner or the victim. Sec-
ond, he relied upon the results of mtDNA testing in
2012 of certain Negroid type hairs found inside the
victim’s vehicle from which the petitioner was defini-
tively excluded as the source.
The trial court, Sferrazza, J., held an evidentiary
hearing on the petition. During the hearing, the peti-
tioner presented evidence that mtDNA testing was con-
ducted on three of the hairs, two of which were Negroid
type hairs that could have come from the same source.
See generally State v. Pappas, 256 Conn. 854, 867–75,
776 A.2d 1091 (2001) (describing mtDNA and process
of analyzing it). One such Negroid type hair was taken
from the right front floor area of the victim’s vehicle,
below the seat where DeMaio testified that he saw the
black man in the camouflage jacket sitting when he
fought and/or argued with, then shot and killed, the
victim. The other was taken from the left rear seat and
floor area of the vehicle. The petitioner was excluded
by mtDNA analysis as the source of those two hairs.10
In addition, the petitioner presented testimony from
two state forensic science examiners who had collected
and performed DNA testing by the STR method on
biological material found inside the camouflage jacket.
First, Lucinda Lopes-Phelan testified that nuclear DNA
within skin cells can sometimes be found on clothing
in locations that have come into contact with the skin
of persons wearing the clothing. Skin cells left in those
locations by wearers of the clothing can sometimes be
collected at a later time by swabbing such locations,
which Lopes-Phelan did in this case on the interior
collar of the jacket and the inner surfaces of the jacket’s
sleeves, about two to three inches in from the edges
of the cuffs. Lopes-Phelan testified that the absence of
a person’s DNA from a sample of biological material
collected from a garment he is claimed to have worn
does not necessarily establish that he never wore the
garment. Some people, she noted, are simply not good
skin shedders; hence, samples collected from clothing
they have worn are not likely to contain their skin cells,
or thus their DNA. Even, moreover, when a person does
leave skin cells in a swabbed location on a garment,
such skin cells may be lost or contaminated before
collection is attempted if, for example, the garment is
initially subjected to other forensic testing. Biological
material collected from worn garments also may
become degraded, making it untestable, if it is stored
in an improper manner or at an improper temperature.
Here, for example, the witness noted, the cuffs of the
jacket she ultimately swabbed for DNA had been
swabbed earlier by police for the presence of nitrates,
nitrites and lead, which possibly caused the loss or
contamination of all or some of the DNA that may once
have been present in that location. Lopes-Phelan also
testified that before she collected the biological mate-
rial from the jacket, the jacket had been stored inside
a plastic bag, which may have promoted the growth of
mold and bacteria, and thus degraded all or some of
the DNA within it. Lopes-Phelan described the process
of DNA degradation as follows: ‘‘It’s just that DNA can
be less detectible over time because bacteria could eat
away at it, and over time, it will just degrade and will
be broken down; that those markers that the DNA kits
are looking for are not there any longer.’’ One possible
result of degradation of a collected sample is thus the
loss of testable DNA from one or more prior wearers
of clothing who contributed to that sample.
Finally, Lopes-Phelan advanced several reasons why
the presence of other persons’ DNA in swabbed loca-
tions that a suspect is believed to have touched does
not necessarily exonerate the suspect. First, she noted,
the garment in question may have been handled by other
persons during the course of the pretrial investigation or
at trial, possibly leading to the loss or contamination
of the biological material deposited on it. Here, she
noted, one such person was the forensic examiner who
swabbed the interior cuffs of the jacket while testing
it for gunshot residue in 1990. Second, she noted that
skin cells could have been transferred to the jacket after
it was handed over to the police by persons handling the
jacket or talking over it and spraying it with saliva
containing their own skin cells and nuclear DNA.
Next, Heather Degnan testified that she used the STR
method to perform DNA testing on the samples that
Lopes-Phelan had collected from the jacket. Degnan
first described the methodology for STR testing in her
testimony with the aid of a detailed powerpoint presen-
tation. Then she confirmed Lopes-Phelan’s testimony
that DNA can degrade over time, and that improper
packaging or storage at an improper temperature can
accelerate such degradation. Degnan explained that the
results of DNA testing of a degraded sample will appear
as ‘‘ski slope[s], where you see higher levels of detection
at the smaller regions that we are testing.’’ The results
of DNA testing of the biological samples collected from
the jacket contained the ‘‘ski slope’’ pattern that gives
evidence of DNA degradation. Degnan noted, however,
that a degraded sample will not typically produce a
false positive DNA profile. She then testified that the
two samples collected from the jacket were both mix-
tures containing nuclear DNA from at least two individ-
uals, neither of whom was the petitioner. Degnan
testified that it was possible that the petitioner had
worn the jacket, yet still not have contributed to either
sample. In particular, she noted that it was possible for
an article of clothing worn under a jacket to prevent skin
cells from the wearer to be transferred to the jacket.
After the hearing, the trial court issued a written
decision denying the petition for a new trial, in which
it explained its ruling as follows: ‘‘The parties concur
that the appropriate criteria governing determination
of a petition for a new trial was set forth in Asherman
v. State, 202 Conn. 429, [521 A.2d 578] (1987), and its
progeny: (1) The proffered evidence is newly discov-
ered, such that it could not have been discovered earlier
by the exercise of due diligence; (2) it would be material
on a new trial; (3) it is not merely cumulative; and (4)
it is likely to produce a different result in a new trial.
Id., 434.
‘‘The parties also agree that the DNA testing in 2010
and 2012 was newly discovered, material at a new trial,
and not cumulative of evidence produced at the criminal
trial.11 Thus, the remaining question is whether the peti-
tioner has proved, by a preponderance of the evidence,
that the combination of the evidence admitted at the
criminal trial with the DNA test results would likely
produce an acquittal at a third criminal trial.
‘‘Posttrial DNA testing of evidence [that] fails to
match the DNA profile of the convicted person often
justifies the collateral relief of a new criminal trial,
but not always. The presence or absence of certain
circumstances may tip the scales for or against
affording a new trial, and the court decisions in this
area are quite fact-bound. In State v. Hammond, 221
Conn. 264 [280, 604 A.2d 793 (1992), abrogated in part
on other grounds by State v. Ortiz, 280 Conn. 686,
719–20 n.19 and 722 n.22, 911 A.2d 1055 (2006)], our
Supreme Court, on direct appeal, overturned a guilty
verdict for kidnapping and sexual assault based on
blood typing and the DNA analysis of semen stains on
the victim’s undergarments and jeans. These test results
excluded the [defendant] as the contributor. The high
court reversed the trial court’s denial of the [defen-
dant’s] motion for a new trial. The court held that the
scientific analysis excluding the [defendant] as the
source of the stain was dispositive because of the undis-
puted timing of when the garments had last been laun-
dered and when the victim last had intercourse before
the rape. Id., 279–86. The Supreme Court also placed
significance on the improbability of contamination.
Id. . . .
‘‘Other appellate decisions have upheld the trial
court’s denial of a new trial where DNA results failed
to match the profile of the convictee. In State v. Whip-
per, 258 Conn. 229 [780 A.2d 53 (2001), overruled in
part on other grounds by State v. Cruz, 269 Conn. 97,
106, 848 A.2d 445 (2004), and State v. Grant, 286 Conn.
499, 535, 944 A.2d 947, cert. denied, 555 U.S. 916, 129
S. Ct. 271, 172 L. Ed. 2d 200 (2008)], our Supreme Court
affirmed the trial court’s refusal to grant a motion for
a new trial based on DNA evidence favorable to the
defendant because the trial court ‘was not confronted
with uncontroverted evidence that precluded the jury
from convicting the defendant . . . .’ Id., 248. Because
the evidence in that case was not such that rendered
a guilty verdict scientifically . . . impossible, the
denial of the motion for a new trial was not an abuse
of discretion. Id., 249. In Whipper, supra, the opportu-
nity for contamination and/or degradation supported
the trial court’s assessment that the DNA results were
‘unpredictable and difficult to explain.’ Id., 254. . . .
‘‘The court finds that the methods used to perform
the DNA analyses were scientifically appropriate, that
the methods were expertly executed, and that the out-
comes obtained were accurate. By accurate, the court
means that the test results correctly reflected the DNA
profiles [that] could be successfully produced from the
materials tested. The absence of a DNA profile match
with the victim or petitioner does not, of course, neces-
sarily imply that neither had contact with the jacket or
that the petitioner was never in the victim’s car. The
results simply demonstrate their DNA was not detected
on or in the items tested.
‘‘Thus, this case differs from one where the DNA
test results refute earlier, and more primitive, forensic
opinions. Nor is this case one where the DNA profiles
discovered conclusively determine who perpetrated the
crime, such as might arise when DNA in the semen of
the rapist excluded or identified an individual as the
source of the DNA.
‘‘At the petitioner’s retrial in 1996, Assistant State’s
Attorney James Clark conceded that no forensic evi-
dence implicated the petitioner as the murderer. Attor-
ney Clark candidly acknowledged to the jury that the
state’s case at that retrial hinged on the eyewitness
identifications of the petitioner, or someone strongly
resembling him, as being near or in the victim’s car
around the time of the killing, as arguing with the victim,
and as beating the victim in his car. He [also was]
identified by Frankie Harris as the person who, shortly
after the shooting, threw a camouflage jacket into a
dumpster, which she later retrieved and subsequently
turned over to the police. That jacket contained a docu-
ment [that] was connected to the victim and his vehicle.
‘‘The forensic examinations [that] were able to be
conducted at the time the police originally investigated
this murder failed to produce results [that] incriminated
the petitioner. No [gunshot residue] was detected on the
jacket sleeves nor was blood spatter observed. These
negative results were obtained despite the circum-
stances that blood was diffusely spattered within the
vehicle and [gunshot residue] from two gunshots was
conspicuously observed on the victim’s clothing. The
assailant had bashed the victim’s head against the driv-
er’s side door and/or door frame repeatedly. Yet, no
blood or [gunshot residue] was found on the jacket.
The hairs garnered from the victim’s car were compared
to the petitioner’s hair, and no link was shown. Also,
none of the fingerprints or palm prints obtained from
an inspection of the vehicle matched those of the peti-
tioner.
‘‘The crucial question, then, is whether the petitioner
has proven, by a preponderance of the evidence, that
the additional negative forensic evidence with respect
to the jacket and hairs, obtained around twenty years
after the original, negative forensic results were known,
is reasonably likely to produce a different outcome
when combined with the rest of the evidence in this
case. The court concludes that the petitioner has failed
to meet this burden.
‘‘Two juries12 determined that the petitioner mur-
dered the victim, beyond a reasonable doubt, despite
the lack of forensic evidence connecting the petitioner
to the victim, his vehicle, or his death. The jury at the
1996 trial found the petitioner culpable even though a
new witness, Pasquale DeMaio, expressly testified that
he witnessed the murder and that the petitioner was
not the murderer.
‘‘Clearly, the testimony of the other eyewitnesses who
recognized the petitioner as having entered the victim’s
car a few hours before the shooting, as standing near
or being in the victim’s car near the time of the shooting,
and as having discarded a coat with paperwork belong-
ing to the victim in a dumpster shortly after the gunshots
were heard was so convincing that that testimony elimi-
nated any reasonable doubt as to the petitioner’s guilt,
despite the absence of confirmatory forensic evidence
on the jacket. . . .
‘‘Defense counsel at the retrial hammered away at
the lack of blood spatter and soot on the jacket, and
the failure to discover the [petitioner’s] fingerprints or
palm prints despite a thorough examination of the vic-
tim’s car. The petitioner’s trial counsel repeatedly
stressed that the lack of forensic evidence connecting
the petitioner with the crime scene indicated that the
eyewitnesses misidentified the petitioner as the killer.
‘‘This court considers the importance of Frankie Har-
ris’ identification of the petitioner as the person who
discarded the jacket in a different light than that cast
by Attorney Clark in his summation. The significance
of the nexus of the jacket with the petitioner was not
so much that the petitioner wore the jacket when he
murdered the victim but that the petitioner possessed
and threw away a jacket [that] contained a mechanic’s
estimate given the victim to repair the victim’s car. The
wearer of the jacket was of lesser relevance. . . .
‘‘The facts that the petitioner was wearing a different
camouflage jacket two days after the murder, that the
jacket thrown into the dumpster was of a larger size
than the jacket the petitioner was wearing, that the
jacket from the dumpster was devoid of any blood spots
or gunshot residue, and that the victim’s rather pedes-
trian paperwork was in the discarded jacket strongly
suggests that neither the victim nor the killer was wear-
ing the jacket at the time of the shooting and also that
the jacket had been in the victim’s car.
‘‘The pertinent nexus between the jacket thrown in
the dumpster and the perpetrator was not one of the
garment and wearer but rather of possessor and occu-
pancy of the victim’s vehicle. Frankie Harris recognized
the petitioner, as a person with whom she was familiar,
as that possessor, known to her as YoBoy.
‘‘The DNA test results performed with respect to the
jacket and the hairs collected were not cumulative of
the criminal trial evidence in the sense that these foren-
sic examinations were not merely more sophisticated
repetitions of earlier tests for blood spatter and gunshot
residue. However, in the final analysis, the DNA results
were consistent with what the previous two juries and
trial attorneys already knew, viz. that no forensic evi-
dence tied the petitioner to the jacket, the crime scene,
or the victim.
‘‘The DNA result that some unknown person’s DNA
profile was extracted from the jacket adds little to the
petitioner’s case. The petitioner’s present counsel rec-
ognizes that the prosecution would be allowed, at a
new trial, to probe the nonsterile manner in which the
jacket was treated by Harris, the earlier forensic exam-
iner looking for gunshot residue, the plastic bag issue
regarding DNA degradation, and the many opportuni-
ties for several persons to touch the jacket or deposit
tiny droplets of saliva upon it over the twenty year
period [that] elapsed between the incident and the 2010
DNA testing.
‘‘Because the eyewitness identification of the peti-
tioner was so compelling, despite the previous negative
test results and despite the recantation of Hodge and
new testimony of DeMaio, the DNA test results fail to
persuade this court, by a preponderance of the evi-
dence, that the combination of that new forensic evi-
dence with all the other evidence in this case would
likely produce an acquittal.’’ (Citations omitted; empha-
sis omitted; footnotes added.)
On appeal, the petitioner claims that the trial court
erred in concluding that the new DNA evidence would
not likely have produced an acquittal if he were granted
a new trial. He argues, more particularly, that the trial
court erroneously concluded that (1) ‘‘neither the victim
nor the perpetrator was wearing the jacket’’; (2) ‘‘the
new DNA evidence was consistent with the fact that
there was no forensic evidence linking [the petitioner]
to the crime’’; and (3) ‘‘the eyewitness testimony was
. . . so compelling as to counteract the import of the
newly discovered DNA evidence.’’
‘‘Pursuant to [General Statutes] § 52-270, a convicted
criminal defendant may petition the Superior Court for
a new trial on the basis of newly discovered evidence.
See Practice Book § 42-55. A trial court’s decision on
that ground is governed by the standard set forth in
Asherman v. State, [supra, 202 Conn. 434] . . . and
further refined in Shabazz v. State, 259 Conn. 811, 827–
28, 792 A.2d 797 (2002). Under the Asherman standard,
a court is justified in granting a petition for a new trial
when the petitioner demonstrates that the evidence
offered in support thereof: (1) is newly discovered such
that it could not have been discovered previously
despite the exercise of due diligence; (2) would be mate-
rial to the issues on a new trial; (3) is not cumulative;
and (4) is likely to produce a different result in the
event of a new trial. Asherman v. State, supra, 434. . . .
‘‘[Our Supreme Court] further explained in Shabazz
that, in determining whether a different result would
be produced in a new trial, a trial court necessarily
must engage in some form of credibility analysis. . . .
The trial court must always consider the newly discov-
ered evidence in the context of the evidence presented
in the original trial. . . . [Thus, if] the trial court deter-
mines that the evidence is sufficiently credible so that,
if a second jury were to consider it together with all of
the original trial evidence, it probably would yield a
different result or otherwise avoid an injustice, the
fourth element of the Asherman test would be satisfied.
[Shabazz v. State, supra, 259 Conn.] 827–28. By a differ-
ent result, we mean that the new evidence would be
likely to result in acquittal of the petitioner, not merely
that it might cause one or more jurors to have a reason-
able doubt about the petitioner’s guilt. Id., 823 (it must
be evidence which persuades the judge that a jury would
find him not guilty); [Lombardo v. State, 172 Conn. 391,
374 A.2d 1065 (1977)] (same); see also Asherman v.
State, supra, 202 Conn. 434, 436 (considering whether
admission probably would have led to petitioner’s
acquittal).’’ (Citations omitted; footnote omitted; inter-
nal quotation marks omitted.) Skakel v. State, 295 Conn.
447, 466–68, 991 A.2d 414 (2010).
‘‘One cogent reason for overturning the verdict of a
jury is that the verdict is based on conclusions that are
physically impossible. [A] verdict should be set aside
[w]here testimony is thus in conflict with indisputable
physical facts, the facts demonstrate that the testimony
is either intentionally or unintentionally untrue, and
leave no real question of conflict of evidence for the jury
concerning which reasonable minds could reasonably
differ.’’ (Internal quotation marks omitted.) State v.
Whipper, supra, 258 Conn. 247.
‘‘It is within the discretion of the trial court to deter-
mine, upon examination of all the evidence, whether
the petitioner has established substantial grounds for
a new trial, and the judgment of the trial court will be
set aside on appeal only if it reflects a clear abuse of
discretion.’’ Asherman v. State, supra, 202 Conn. 434.
‘‘In determining whether there has been an abuse of
discretion, the ultimate issue is whether the court could
reasonably conclude as it did.’’ (Internal quotation
marks omitted.) State v. Orr, 291 Conn. 642, 667, 969
A.2d 750 (2009). ‘‘[If an] appeal, however, raises the
issue of whether the trial court correctly applied the
standard for determining whether to grant a petition
for a new trial as set forth in Asherman . . . our review
is plenary.’’13 Shabazz v. State, supra, 259 Conn. 820.
The only issue on appeal in this case is whether the
petitioner satisfied the fourth and final element of the
Asherman test: that the newly discovered evidence was
likely to produce a different result if the petitioner were
granted a new trial. We conclude that the trial court
did not abuse its discretion in denying the petitioner’s
petition on the ground that he failed to prove that
element.
We first note that we disagree with the court that the
‘‘pertinent nexus’’ between the jacket and the perpetra-
tor was one of ‘‘possessor and occupancy of the victim’s
vehicle’’ rather than one of ‘‘garment and wearer.’’ The
identity of the man who wore the camouflage jacket
retrieved by Harris from the dumpster after the shooting
was of vital importance in this case. All eyewitnesses
saw a man, identified by some as the petitioner, wearing
a camouflage jacket at or about the time of his fatal
altercation with the victim. Hodge testified that the man
he saw approaching the victim’s vehicle was wearing
an army or flannel jacket. Harris’ testimony that she
watched the petitioner take off a camouflage jacket and
throw it in the dumpster provided a direct link between
the jacket retrieved from the dumpster and the peti-
tioner. That jacket, moreover, contained evidence link-
ing its wearer to the victim, specifically the two year
old repair bill for the victim’s vehicle that was found
in one of the jacket’s pockets. Against this background,
evidence tending to establish that the petitioner had
never worn the jacket would have been immensely help-
ful to the defense in this case.
As the court aptly noted, however, the DNA evidence
in this case did not tend to establish that the petitioner
had never worn the jacket retrieved from the dumpster,
much less that he had not worn it on the day of the
victim’s murder. Instead, it merely tended to show that
none of the petitioner’s testable DNA was found in the
places swabbed on the jacket when it was examined for
that purpose many years after the jacket was recovered
from the dumpster. Although evidence was presented
at the hearing on the petition for a new trial that the
petitioner was wearing that very jacket just minutes
before it was recovered by Harris from the dumpster,
and that persons wearing the jacket could have depos-
ited skin cells containing their nuclear DNA in those
parts of the jacket that were swabbed by Lopes-Phelan,
it also heard evidence explaining why the material
recovered from the jacket might have contained none
of the petitioner’s DNA even if he did wear the jacket.
Evidence was presented that some people are not
‘‘good’’ shedders of skin cells, and that even if they are,
their wearing of other clothing under the jacket could
prevent the transfer of their skin cells to the jacket. No
testimony was presented as to what kind of shirt or
other clothing the man identified as the petitioner was
wearing on his upper body before or after he threw
the jacket into the dumpster shortly after the shooting.
Even, moreover, if some of the fleeing man’s skin cells
were shed into the jacket before he removed it and
threw it away, such skin cells could have been lost or
contaminated when the jacket was subjected to forensic
testing in the early days of the police investigation and/
or handled by police, court personnel, attorneys and
jurors during the two trials of this case in the early
1990s. Indeed, the possible contamination of at least
some of the DNA in the two tested samples of biological
material collected from the jacket retrieved by Harris
from the dumpster was confirmed in this case by the
presence of telltale sloping in the charts depicting the
results of nuclear DNA testing by the STR method. In
light of these uncertainties as to the true significance
of the absence of any testable DNA from the petitioner
in the biological samples collected from the jacket, the
court did not abuse its discretion in concluding that
the petitioner failed to establish a reasonable probabil-
ity that evidence of the new test results would probably
lead to his acquittal if he were granted a new trial.
As for the fact that uncontaminated DNA from two
other individuals was found in the biological material
collected from the swabbed areas inside the jacket, the
exculpatory tendency of such evidence would necessar-
ily depend upon establishing the high probability, if not
the certainty, that material collected from those areas
had been left there by the person who shot the victim.
The evidence in this case did not establish when or
how those other individuals may have deposited their
DNA on the jacket. One of them, of course, could have
done so by wearing the jacket at the time and place of
the shooting. All others, of course, could not have done
so, for only one person was wearing the jacket at that
time and place. More importantly, perhaps, there is
nothing about the collected material, or the circum-
stances in which it was found and collected, to suggest
that it was probably deposited by the person who shot
the victim. Unlike DNA left in a semen stain on a rape
victim’s recently washed clothing, which was very prob-
ably left by the rapist; cf. State v. Hammond, supra,
221 Conn. 280; or blood or tissue found in scrapings
from the fingernails of a homicide victim who evidently
resisted her attacker’s efforts to subdue her, the DNA
in this case, from skin cells deposited inside a jacket
where wearers of garments typically deposit them,
could have been left there by any wearer of the jacket
at any time. Indeed, the evidence showed that they
could even have been left there by a nonwearer who
handled the jacket at some time before or after the
jacket was retrieved from the dumpster. In light of this
evidence, the court reasonably concluded that the
proven presence of DNA from other persons in the
biological material found inside the jacket had no logi-
cal tendency to exonerate the petitioner in connection
with the victim’s murder.
In a similar vein, evidence tending to establish that
the petitioner was not in the victim’s vehicle just prior
to the homicide also would have been helpful to the
defense. The mtDNA testing of hairs retrieved from the
victim’s vehicle, however, merely excluded the peti-
tioner as the source of those particular hairs, and did
not establish that the petitioner had not been inside the
victim’s vehicle. The petitioner argues that the fact that
he was excluded as the contributor of the two unidenti-
fied Negroid type hairs supports his defense that the
eyewitnesses misidentified him as the black man they
saw arguing with the victim in or near the vehicle.
However, here, as with the skin cells deposited inside
the jacket, which Harris retrieved from the dumpster,
mtDNA testing could not establish when those hairs
were left in the victim’s vehicle, and no evidence was
presented from which a jury reasonably could have
concluded that the victim had never had a black person
inside his vehicle prior to the morning on which he was
shot and killed. Indeed, the tested hairs could have been
inside the victim’s vehicle for a considerable period of
time before the day of the shooting, for the evidence
presented at trial was that the victim’s vehicle did not
have a well-kept interior and did not look like it had
recently been vacuumed. In light of that evidence, the
court did not abuse its discretion in concluding that
the presence in the victim’s vehicle of two Negroid type
hairs from persons other than the petitioner raised no
doubt about the petitioner’s guilt, let alone established
that a new trial in which such evidence was presented
would likely result in his acquittal.
Finally, the trial court properly evaluated the newly
discovered DNA evidence in light of the evidence pre-
sented at trial. The court focused on the fact that the
jury in this case believed the eyewitnesses who identi-
fied the petitioner as the perpetrator of the homicide
over the eyewitnesses who testified that the petitioner
was not the perpetrator. The lack of forensic evidence
on the jacket or in the victim’s vehicle does not contra-
dict any eyewitness’ account.
We are not persuaded that the newly discovered DNA
evidence excluding the petitioner as the source of the
hairs found in the victim’s vehicle or of the biological
material found on the jacket, considered in the context
of all the evidence presented at the second trial of the
underlying case, ‘‘would be likely to result in acquittal
of the petitioner, not merely that it might cause one
or more jurors to have a reasonable doubt about the
petitioner’s guilt.’’ Skakel v. State, supra, 295 Conn. 468.
Accordingly, the trial court did not abuse its discretion
in denying the petitioner’s petition for a new trial on
the basis of newly discovered evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes (Rev. to 1989) § 53a-54b (3) provides: ‘‘A person is guilty
of a capital felony who is convicted of any of the following . . . (3) murder
committed by one who has previously been convicted of intentional murder
. . . .’’ The petitioner was convicted of intentional murder in 1976. State v.
Jones, 50 Conn. App. 338, 341 n.3, 718 A.2d 470 (1998), cert. denied, 248
Conn. 915, 734 A.2d 568 (1999).
2
General Statutes (Rev. to 1989) § 29-35 (a) provides: ‘‘No person shall
carry any pistol or revolver upon his person, except when such person is
within his dwelling house or place of business, without a permit to carry
the same issued as provided in section 29-28. The provisions of this subsec-
tion shall not apply to the carrying of any pistol or revolver by any sheriff,
parole officer or peace officer of this state, or sheriff, parole officer or peace
officer of any other state while engaged in the pursuit of his official duties,
or federal marshal or federal law enforcement agent, or to any member of
the armed forces of the United States, as defined by section 27-103, or of
this state, as defined by section 27-2, when on duty or going to or from
duty, or to any member of any military organization when on parade or
when going to or from any place of assembly, or to the transportation of
pistols or revolvers as merchandise, or to any person carrying any pistol
or revolver while contained in the package in which it was originally wrapped
at the time of sale and while carrying the same from the place of sale to
the purchaser’s residence or place of business, or to any person removing
his household goods or effects from one place to another, or to any person
while carrying any such pistol or revolver from his place of residence or
business to a place or person where or by whom such pistol or revolver is
to be repaired or while returning to his place of residence or business after
the same has been repaired, or to any person carrying a pistol or revolver
in or through the state for the purpose of taking part in competitions or
attending any meeting or exhibition of an organized collectors’ group if such
person is a bona fide resident of the United States having a permit or license
to carry any firearm issued by the authority of any other state or subdivision
of the United States, or to any person carrying a pistol or revolver to and
from a testing range at the request of the issuing authority, or to any person
carrying an antique pistol or revolver, as defined in section 29-33.’’
3
The basis for the granting of the petition for a new trial was the newly
discovered evidence of an additional eyewitness, Pasquale DeMaio.
4
Our Supreme Court reversed the petitioner’s conviction in his first trial
because the trial court had failed to bifurcate the guilt phase of that trial
to ensure that the jury would not learn of the petitioner’s prior murder
conviction, as required for proof of capital felony under § 53a-54b (3), before
deciding if he was guilty of murder with respect to the victim or of carrying
a pistol without a permit. State v. Jones, 234 Conn. 324, 348–51, 662 A.2d
1199 (1995).
5
Mercado testified as follows: ‘‘[T]he [black] guy that . . . killed the white
guy, he kept opening [the car door] and hitting [the white guy] on the throat
. . . . The black guy was hitting him with the door, his head, I guess, he
was laying . . . in the driver’s with his head sticking out the door.’’
6
Mercado testified at trial that the black male had a ‘‘few’’ braids. Her
testimony was as follows:
‘‘[The Prosecutor]: . . . [W]hat did the braids look like and how many
approximately would you say there were?
‘‘[Mercado]: I didn’t—I couldn’t count them, there were a few.
‘‘[The Prosecutor]: Okay. And a few I take it you mean less than ten?
‘‘[Mercado]: Yes.’’
7
Delgado testified that the petitioner had braids, but did not specify the
number of braids.
8
The state also presented testimony that the size extra small jacket that
the petitioner was wearing when the police arrested him also tested negative
for gunshot residue or blood. The extra small jacket was lost prior to the
start of the petitioner’s first trial and never was admitted into evidence.
9
The DNA samples were retested in 2012 due to possible manufacturing
defects in the testing kits used in 2010. The results were the same in
both tests.
10
The victim was also excluded as the source of the two hairs that may
have come from the same source. The third hair, which was a Caucasian
hair, was consistent with the victim’s hair.
11
Although the respondent claims that it had not agreed prior to the
evidentiary hearing that the evidence was not cumulative, on appeal, it is
not pursuing a claim that the evidence was cumulative.
12
We note that the petitioner’s conviction after his first trial was reversed,
and, accordingly, we give no weight to the fact that he was found guilty by
the first jury.
13
The petitioner and the respondent disagree on the appropriate standard
of review in this case. The petitioner argues that we should apply de novo
review pursuant to our Supreme Court’s decision in Lapointe v. Commis-
sioner of Correction, 316 Conn. 225, 269, 112 A.3d 1 (2015). The respondent
argues for the abuse of discretion standard.
In Lapointe, the habeas court was tasked with evaluating the materiality
of a petitioner’s claims under Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963), and Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Lapointe v. Commissioner of
Correction, supra, 316 Conn. 267. Our Supreme Court applied de novo review
when assessing the habeas court’s determination ‘‘that the testimony of the
petitioner’s experts, when viewed in light of [the respondent’s expert’s]
testimony, was not sufficiently credible to give rise to a reasonable probabil-
ity of a different result at the original trial . . . .’’ Id. Our Supreme Court
concluded that the ‘‘habeas court’s assessment of the testimony of [the
petitioner’s experts] was not predicated on their demeanor or conduct on
the witness stand, nor was it related to anything else that would reflect
adversely on their credibility, such as untruthfulness, bias, poor memory or
substandard powers of observation. That assessment also was not dependent
on any underlying factual findings requiring the trial court’s firsthand obser-
vation and determination of the credibility or reliability of other witnesses.
Rather, the . . . habeas court rejected the opinions of [the petitioner’s
experts] solely because, in its view, those opinions lacked an adequate
foundation, first, because they were premised on facts that were contrary
to the record in the case, as reported by [the respondent’s expert], and,
second, because the court did not credit the scientific underpinnings of
those opinions. In such circumstances, when the habeas court’s assessment
of the expert testimony has nothing to do with the personal credibility of
the expert witness but instead is based entirely on the court’s evaluation
of the foundational soundness of the witness’ professional opinion, this
court is as well situated as the habeas court to assess that testimony for
Brady purposes.’’ Id., 268–69. Accordingly, the court ‘‘[saw] no reason to
defer to the . . . habeas court’s predictive or probabilistic judgment as to
whether the original jury reasonably might have credited the testimony of
the petitioner’s experts.’’ Id., 272.
Our Supreme Court limited its holding in Lapointe in several ways. First,
it stated that ‘‘[its] conclusion [was] limited to the kind of fact-finding that
is implicated in the Brady context.’’ Id., 272 n.42. The court noted, however,
that an appeal from a petition for a new trial ‘‘requires exactly the same
analysis as claims under Brady and Strickland . . . .’’ Id., 308. In fact, in
reaching its decision in Lapointe, it relied on an Indiana Court of Appeals
decision reviewing the denial of a petition for a new trial on the basis of
newly discovered evidence. Id., 269–70. Second, our Supreme Court empha-
sized that it is only in rare cases that an appellate court should apply de
novo review to assessments of expert testimony, and that those cases must
be factually similar to Lapointe. See id., 307.
The petitioner argues that Lapointe extends to this case because the
court here was not required to make a credibility assessment of the expert
testimony and merely applied the law of Asherman by determining whether
the new evidence was likely to produce a different result at a new trial.
The respondent, however, claims that Lapointe does not apply because the
trial court here, unlike the court in Lapointe, determined that the DNA
evidence was credible.
We agree with the respondent that this case is not one of the rare cases,
factually similar to Lapointe, that require de novo review. Unlike the habeas
court in Lapointe, the trial court here did not have to evaluate the testimony
of various experts with differing opinions. The experts in this case merely
testified as to the methods employed in performing STR and mtDNA testing
and the results of those tests. The trial court found that the DNA testing
methods employed in this case were ‘‘scientifically appropriate, that the
methods were expertly executed, and that the outcomes obtained were
accurate.’’ In other words, even though the trial court ‘‘determine[d] that
the evidence [was] sufficiently credible,’’ it ultimately decided that ‘‘if a
second jury were to consider it together with all of the original trial evidence,
it probably would [not] yield a different result . . . .’’ Shabazz v. State,
supra, 259 Conn. 827–28.