State v. Smith

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State v. Smith

STATE OF CONNECTICUT v. BARRY J. SMITH
(AC 47278)
Moll, Westbrook and Eveleigh, Js.

Syllabus

The defendant, who previously had been convicted, after a jury trial, of
murder and felony murder, appealed from the trial court’s judgment deny-
ing his postconviction petition, pursuant to statute (§ 54-102kk (b)), seeking
DNA testing of fingernail scrapings that had been collected from the victim’s
body during the investigation of the murder. The defendant claimed that the
court improperly failed to conclude that exculpatory results of that DNA
testing would have created a reasonable probability that he would not have
been prosecuted or convicted had it been available at his criminal trial. Held:

The defendant failed to present sufficient evidence to establish that DNA
testing of the fingernail scrapings would have resulted in a reasonable prob-
ability that he would not have been prosecuted or convicted, as the absence
of his DNA or the presence of a third party’s DNA would not necessarily
mean that the defendant was not present at the murder scene or did not
participate in the commission of the crime, and it would not necessarily
discredit the testimony of a witness who saw him participate in the com-
mission of the murder.

Argued October 8, 2025—officially released May 5, 2026

Procedural History

Petition for postconviction DNA testing of certain
biological evidence collected in connection with the defen-
dant’s previous criminal trial, brought to the Superior
Court in the judicial district of Waterbury, where the
court, Klatt, J., denied the petition, and the defendant
appealed to this court. Affirmed.
Jennifer B. Smith, assistant public defender, for the
appellant (defendant).
Nicholas L. Scarlett, deputy assistant state’s attorney,
with whom, on the brief, was Maureen Platt, state’s
attorney, for the appellee (state).

Opinion

WESTBROOK, J. The defendant, Barry J. Smith (peti-
tioner), appeals from the denial of his postconviction peti-
tion for DNA testing of biological evidence under General
State v. Smith

Statutes § 54-102kk.1 The petitioner claims that the trial
court improperly concluded that a reasonable probability
did not exist that materially exculpatory evidence would
have resulted in the petitioner not being prosecuted or
convicted.2 We reject the petitioner’s claims and affirm
the judgment of the court.
1
General Statutes § 54-102kk provides in relevant part: “(a) Notwith-
standing any other provision of law governing postconviction relief,
any person who was convicted of a crime and sentenced to incarceration
may, at any time during the term of such incarceration, file a petition
with the sentencing court requesting the DNA testing of any evidence
that is in the possession or control of the Division of Criminal Justice,
any law enforcement agency, any laboratory or the Superior Court.
The petitioner shall state under penalties of perjury that the requested
testing is related to the investigation or prosecution that resulted in
the petitioner’s conviction and that the evidence sought to be tested
contains biological evidence.
“(b) After notice to the prosecutorial official and a hearing, the court
shall order DNA testing if it finds that:
“(1) A reasonable probability exists that the petitioner would not have
been prosecuted or convicted if exculpatory results had been obtained
through DNA testing;
“(2) The evidence is still in existence and is capable of being subjected
to DNA testing;
“(3) The evidence, or a specific portion of the evidence identified by
the petitioner, was never previously subjected to DNA testing, or the
testing requested by the petitioner may resolve an issue that was never
previously resolved by previous testing; and
“(4) The petition before the Superior Court was filed in order to dem-
onstrate the petitioner’s innocence and not to delay the administration
of justice.
“(c) After notice to the prosecutorial official and a hearing, the court
may order DNA testing if it finds that:
“(1) A reasonable probability exists that the requested testing will
produce DNA results which would have altered the verdict or reduced
the petitioner’s sentence if the results had been available at the prior
proceedings leading to the judgment of conviction;
“(2) The evidence is still in existence and is capable of being subjected
to DNA testing;
“(3) The evidence, or a specific portion of the evidence identified by
the petitioner, was never previously subjected to DNA testing, or the
testing requested by the petitioner may resolve an issue that was never
previously resolved by previous testing; and
“(4) The petition before the Superior Court was filed in order to dem-
onstrate the petitioner’s innocence and not to delay the administration
of justice. . . .”
2
The petitioner also claims that the trial court improperly relied on
clearly erroneous facts in reaching its conclusion to deny the petition.
State v. Smith

The record reveals the following facts underlying the
petitioner’s criminal conviction, as well as additional
relevant procedural history. On March 21, 1999, a tenant
at 17 Burton Street in Waterbury went to the basement
of the building to retrieve his bicycle when he discovered
the deceased and partially clothed body of the victim,
Michelle McMaster. A police investigation determined
that the victim had been asphyxiated by manual strangu-
lation and found evidence consistent with sexual assault.
The perpetrator was not found, but in the years that
followed the police came to suspect that a known drug
user, Donna Russell, had information regarding the
crime. Russell, who was associated with a group of known
drug users that included the petitioner and the victim,
did not cooperate with the police until January, 2008.3
At that time, she told investigators at the Waterbury
Police Department that she had been in the basement of
17 Burton Street on the evening of March 20, 1999, and
observed the victim arguing with Lawrence Andrews
regarding the victim’s refusal to give Andrews either
money or drugs. Russell also told the police that she
The court, in its memorandum of decision, adopted facts set forth by
our Supreme Court in its decision affirming the petitioner’s criminal
conviction, which facts our Supreme Court concluded the jury reasonably
could have found on the basis of the evidence presented at the petitioner’s
criminal trial. See State v. Smith, 313 Conn. 325, 328, 96 A.3d 1238
(2014). We summarily reject the petitioner’s claim. The petitioner has
cited no support, nor are we aware of any, for the proposition that this
court may review or contradict the factual recitations of our Supreme
Court. Rather, the contrary is true. See, e.g., Martin v. Plainville, 40
Conn. App. 179, 182, 669 A.2d 1241 (1996) (Appellate Court, as inter-
mediate court, is barred from “reexamining or reevaluating Supreme
Court precedent”), aff’d, 240 Conn. 105, 689 A.2d 1125 (1997).
3
In January, 2008, Russell, who had been arrested for crimes unrelated
to this appeal, was incarcerated in the York Correctional Institution in
Niantic. Richard Baxter, a detective with the Waterbury Police Depart-
ment, asked Russell if she would speak to him about the murder, to which
she agreed. No promises or agreements were made in exchange for her
statement. Russell gave the police three statements that resulted in the
arrest of the petitioner. At the petitioner’s criminal trial, Russell testi-
fied that her apprehension about cooperating with the police stemmed
from her fear of retribution from Andrews, Daniel, and the petitioner,
as well as her fear that her past would be exposed to her young children.
State v. Smith

had observed the petitioner standing near the victim
along with two other individuals, one of whom was later
identified as Orenthain Daniel.
Russell told the police that the argument between
the victim and the three men elevated to the point that
the victim was knocked to the ground. Andrews then
began to choke the victim, at which point Russell became
frightened and fled. As she fled, she heard the victim
gasping for air and pleading for help. She stated that she
was afraid of Andrews and the other men, and that her
fear caused her to ignore the victim’s pleas for help. The
last thing she saw as she left the basement was Andrews
choking the victim, while the petitioner held the victim’s
arms down and Daniel pulled down the victim’s pants.
A short time later, outside of the basement, Russell
encountered Andrews once again, during which time he
threatened her and told her never to say anything about
what happened in the basement. Russell also told the
investigators that she was familiar with the petitioner
and Andrews because they sold drugs in the neighbor-
hood and she had previously purchased drugs from the
petitioner many times.
In July, 2008, a few months after Russell’s initial
statement to the police, a DNA sample collected from a
vaginal swab of the victim was found to match a DNA
sample from Daniel. In March, 2009, the police showed
Russell a photographic array from which she identified
Daniel as the third man in the basement at the time of
the murder. Only Daniel’s DNA was recovered from the
items that were collected and tested.
The police also obtained a statement from Norman
Reynolds. Reynolds had used drugs with the petitioner in
the early to mid-1990s, and his wife was the petitioner’s
first cousin. During the summer of 1999, Reynolds and
the petitioner had been incarcerated at the Brooklyn
Correctional Institution. On one occasion, the petitioner,
after a visit from his girlfriend, seemed disturbed and
paranoid, according to Reynolds. Reynolds stated that
the petitioner later confided in him that he had killed the
State v. Smith

victim but did not implicate anyone else. According to
Reynolds, the petitioner stated that he was in the base-
ment with Andrews and another man, Marvin Slade,
and that the men had given the victim drugs in exchange
for sex. After the encounter, the men left the basement.
The petitioner later returned for more drugs or money
but instead took drugs with the victim and attempted to
have sex with her, once again, while wearing a condom.
When the victim resisted his advances, the petitioner
became frustrated and began punching and strangling
the victim, which resulted in her death. Reynolds stated
that the petitioner had told him that he did not intend to
kill the victim and that her death was accidental.
In March, 2009, largely on the basis of the statements
provided to the police by Russell and Reynolds, the peti-
tioner was charged with felony murder and murder in
violation of General Statutes §§ 53a-54a and 53a-54c,
respectively. He entered a plea of not guilty and elected
a jury trial. The jury deliberated for one day, during
which it requested a playback of Russell’s testimony.
The jury found the petitioner guilty on both counts. The
trial court merged the conviction4 of the two offenses
and rendered judgment, sentencing the petitioner to a
term of sixty years of incarceration.
The petitioner appealed from his conviction and claimed
that the trial court had improperly admitted evidence of
uncharged sexual misconduct, rejected his claim that he
was denied a fair trial, and permitted the prosecutor to
exercise a peremptory challenge with respect to an Afri-
can American venireperson in violation of United States
Supreme Court precedent. State v. Smith, 313 Conn. 325,
328, 96 A.3d 1238 (2014). Our Supreme Court upheld
the judgment of the trial court. See id., 360.
On August 14, 2023, the petitioner filed a petition
pursuant to § 54-102kk (b) for postconviction DNA test-
ing of fingernail scrapings that had been collected from
4
We note that, after the petitioner was sentenced, our Supreme Court
decided that vacatur rather than merger was the appropriate remedy for
a defendant convicted of greater and lesser included offenses. See State
v. Polanco, 308 Conn. 242, 255, 61 A.3d 1084 (2013); see also State v.
Miranda, 317 Conn. 741, 745, 120 A.3d 490 (2015).
State v. Smith

the victim’s body as part of the police investigation.5
In his petition, citing § 54-102kk (b) (1), the petitioner
argued that “[t]here is a reasonable probability that, if
exculpatory results had been or could have been obtained
through DNA testing” of the fingernail scrapings, he
would not have been prosecuted or convicted.6 He argued
that the absence of his DNA in the fingernail scrapings
or the presence of a third party’s DNA would be materi-
ally exculpatory considering the totality of the evidence
in his case. The petitioner, who has always maintained
his innocence, further argued in the petition that the
state’s case against him was “not so overwhelming as to
counteract the persuasive value of exculpatory evidence.”
Ultimately, the petitioner wanted the court to conclude
that DNA testing was warranted because it could reveal
that the petitioner’s DNA was not present under the
victim’s fingernails. The petitioner contends that this
would be inconsistent with Russell’s trial testimony
that he was present in the basement and that she saw
him holding down the victim’s arms.
The court, Klatt, J., held a hearing on October 30,
2023, during which the petitioner presented witnesses
whose testimony established the existence of the finger-
nail scrapings and the ability to potentially recover DNA
evidence from the scrapings.7 The witnesses, however,
5
Prior to the filing of his petition for postconviction DNA testing, the
petitioner filed a petition for a writ of habeas corpus, which remains
pending, and intended to use in that action any materially exculpatory
DNA evidence in support of a claim of actual innocence. See Smith v.
Commissioner of Correction, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX-S.
6
In its memorandum of decision denying the petition for postconvic-
tion DNA testing, the trial court found that, during the petitioner’s
criminal trial, he was offered the opportunity to have the fingernail
scrapings tested for the presence of DNA but opted not to do so and
that the state forensic laboratory did not test the evidence on its own,
as that would have “exhaust[ed]” the sample. The court further found
that “[a] letter was sent to both the state and the defense at the time of
the scientific testing, [but] neither party pursued the matter further.”
7
During a brief colloquy with the petitioner’s counsel, the trial court
inquired whether counsel intended to argue the request for DNA testing
under subsection (b) of § 54-102kk:
State v. Smith

could not eliminate the possibility that any DNA samples
tested might be too degraded for analysis. At the hear-
ing, the prosecutor argued that the petitioner had not
proven that “a reasonable probability exists that the
petitioner would not have been prosecuted or convicted
if exculpatory results had been obtained through DNA
results from scientific testing.” See General Statutes
§ 54-102kk (b) (1). Additionally, the prosecutor argued
that the petitioner’s DNA was not expected to be found in
the fingernail scrapings, and, in the prosecutor’s opinion,
the absence of the petitioner’s DNA would not require
a finding that the results were materially exculpatory.8
The prosecutor conceded that the petitioner had met the
remaining statutory requirements.
On December 7, 2023, the trial court denied the peti-
tioner’s petition, concluding that, “[b]ased on a consid-
eration of the totality of the evidence that was presented
at the [petitioner’s] trial, the court cannot find that
testimony concerning the absence [of the petitioner’s]
DNA, or the presence of an unnamed third party[’s] DNA
resulted in an unfair trial or that the court’s confidence
in the jury verdict would have been undermined.” The
court concluded that the petitioner had failed to meet his
“The Court: . . . I’m reviewing the statute. I just want to be certain
that . . . you’re going under . . . [§] 54-102kk (b).
“[The Petitioner’s Counsel]: Yes.
“The Court: . . . Do you have a statute in front of you? All right, so I
just want to be clear here. It says a reasonable probability exists that the
petitioner would not have been prosecuted or convicted if exculpatory
results had been obtained for DNA testing. . . . As to the prosecuted
part, obviously . . . that’s something that’s up to the state of Connecticut
. . . . But, or convicted. I mean, DNA can be anywhere on anything at
any time. The absence of DNA doesn’t mean that you didn’t do it. The
presence of DNA doesn’t mean that he did do it.”
8
In its pretrial memorandum of law in opposition to the petitioner’s
petition, the state argued that “Russell was the only eyewitness who
testified. She testified that she saw the [petitioner] holding down the
victim’s arms while Andrews was choking her and Daniel was pulling
down her pants. Daniel’s DNA was found on the vaginal swab. Therefore,
given these facts, the state does not expect the [petitioner’s] DNA to
be found on the fingernail scrapings. The presence of someone else’s
DNA would not mean or otherwise prove that he did not hold down the
victim’s arms.”
State v. Smith

burden of showing that DNA test results of the fingernail
scrapings would have “[created] a reasonable probability
that the [petitioner] would not have been prosecuted or
convicted had that evidence been available at trial.” This
appeal followed.
We begin by setting forth our standard of review
and relevant legal standards. “[T]he determination of
whether a reasonable probability exists that the peti-
tioner would not have been prosecuted or convicted if
exculpatory results had been obtained through DNA
testing pursuant to § 54-102kk (b) (1) is a question of law
subject to plenary review, while any underlying histori-
cal facts found by the trial court are subject to review
for clear error. . . .
“[R]easonable probability within the context of
§ 54-102kk (b) (1) means a probability sufficient to under-
mine confidence in the outcome. . . . [T]he focus is not
whether, based upon a threshold standard, the result of
the trial would have been different if the evidence had
been admitted. We instead concentrate on the overall
fairness of the trial and whether [the unavailability] of
the [exculpatory] evidence was so unfair as to undermine
our confidence in the jury’s verdict.” (Citation omit-
ted; internal quotation marks omitted.) State v. Jeffrey
G., 222 Conn. App. 411, 420–21, 305 A.3d 313 (2023)
(citing State v. Butler, 129 Conn. App. 833, 21 A.3d
583, cert. denied, 302 Conn. 923, 28 A.3d 340 (2011)),
cert. denied, 348 Conn. 936, 306 A.3d 1072 (2024); see
State v. Dupigney, 295 Conn. 50, 62–64, 988 A.2d 851
(2010); see also State v. Marra, 295 Conn. 74, 88, 988
A.2d 865 (2010).
We disagree with the petitioner’s claim that the trial
court improperly failed to conclude that the petitioner
would not have been prosecuted or convicted had excul-
patory DNA evidence been admitted at trial.
In reviewing the petitioner’s claim that exculpatory
DNA evidence would result in a reasonable probability
that the petitioner would not have been prosecuted or
State v. Smith

convicted, our review is plenary, and “we must consider
this evidence within the context of the entire trial.” State
v. Butler, supra, 129 Conn. App. 841; see also State v.
Marra, supra, 295 Conn. 90 n.10 (reasonable probability
analysis requires court to take into account totality of
evidence adduced at trial to determine whether absence
of exculpatory DNA evidence undermines confidence
in jury’s verdict). “In analyzing the effect of DNA evi-
dence, § 54-102kk (b) (1) directs us to consider the effect
of potential exculpatory results obtained through DNA
testing. At this point, it is evident that the petitioner will
not know with certainty what DNA testing will show.
Thus, § 54-102kk (b) (1) requires the court to consider the
effect of the most favorable result possible from DNA
testing of the evidence . . . .” (Internal quotation marks
omitted.) State v. Jeffrey G., supra, 222 Conn. App. 421.
In the present case, the petitioner argues that the DNA
evidence derived from the victim’s fingernail scrapings
could “[exclude] the petitioner as the source of the DNA
and/or [show] that one or more third parties were the
source of the DNA . . . .” (Emphasis omitted.) We agree
with the petitioner that this is the most favorable result
of DNA testing and will, accordingly, assume that DNA
testing would exclude the petitioner or show the presence
of third-party DNA.
Additionally, this court has previously stated that
“the hypothetical lack of DNA evidence on [a victim’s]
clothing does not create a reasonable probability that the
petitioner would not have been prosecuted or convicted
had that evidence been available at trial.” State v. Jef-
frey G., supra, 222 Conn. App. 428. “DNA is not always
detectable, meaning that it is possible to have someone
touch an object but not leave behind detectable DNA
because . . . some people leave more of their skin cells
behind than others, i.e., some people are better shedders
of their DNA than others. There are also other factors
that affect the amount of DNA left on an object, such as
the length of contact, the roughness or smoothness of
the surface, the type of contact, the existence or nonex-
istence of fluids, such as sweat, and degradation on the
State v. Smith

object.” (Internal quotation marks omitted.) Id., 427; see
State v. Butler, supra, 129 Conn. App. 840–41 (assum-
ing that DNA testing of mask would reveal presence of
third party’s DNA would establish only that third party
wore mask at some unknown point in time but would not
establish that third party was involved in crime); see also
State v. Rosa, 196 Conn. App. 480, 507, 230 A.3d 677
(sweatshirt found near scene of crime that contained
DNA of known felon was not needed at trial for defendant
to present third-party culpability defense), cert. denied,
335 Conn. 920, 231 A.3d 1169 (2020).
Subsection (b) (1) of § 54-102kk, unlike subsection (c),
requires a petitioner to prove that “a reasonable prob-
ability exists that the petitioner would not have been
prosecuted or convicted if exculpatory results had been
obtained through DNA testing . . . .” (Emphasis added;
internal quotation marks omitted.) State v. Jeffrey G.,
supra, 222 Conn. App. 420; see also footnote 1 of this
opinion. The petitioner’s claim that the absence of his
DNA or the presence of another person’s DNA in the
victim’s fingernail scrapings would have resulted in a rea-
sonable probability that he would not have been convicted
or prosecuted is unavailing for several reasons. First, the
absence of the petitioner’s DNA does not necessarily lead
to the conclusion that the petitioner was not present at
the murder scene, as it is within the realm of possibility
that the petitioner held the victim’s arms and simply
did not leave any traceable amounts of DNA under her
fingernails. Conversely, the presence of a third party’s
DNA would not reach the threshold either because the
presence of third-party DNA under the victim’s finger-
nails does not necessitate a finding that the petitioner
either (1) did not hold down the victim as Russell testi-
fied or (2) was not present in the basement during the
murder.9 As this court stated in Butler, the presence of
9
Whether the petitioner held one or both of the victim’s arms is
not material to the ultimate question of his guilt. The petitioner was
charged with and found guilty of both felony murder and murder. See
footnote 4 of this opinion. Even if we assume that exculpatory DNA
evidence were presented that could have undermined the possibility
State v. Smith

a third party’s DNA could simply mean that the victim
came into contact with another individual prior to her
death. Such a finding would have little bearing on the
ultimate question of whether a reasonable probability
exists that the petitioner would not have been prosecuted
or convicted had the DNA test results been admitted into
evidence at his criminal trial.
The petitioner also argues that the DNA evidence
would sufficiently undermine Russell’s testimony. The
DNA evidence, however, bears little relation to Rus-
sell’s testimony. The petitioner argues that exculpatory
DNA evidence would tend to prove that Russell’s story
was either fabricated or inaccurate. Exculpatory DNA
evidence would not necessarily discredit Russell’s tes-
timony. Her testimony that she watched as the victim
was held down by the petitioner may be just as compel-
ling regardless of whether the petitioner’s DNA was not
found or another person’s DNA was found in the finger-
nail scrapings. Ultimately, the petitioner is asking this
court to make a credibility determination with respect
to Russell’s testimony, which was a task for the jury.
Additionally, the petitioner argues that the trial court
was simply “tasked with determining whether the intro-
duction of exculpatory DNA evidence would have under-
mined confidence in the verdict.” Although it is true that
the test for determining reasonable probability under
§ 54-102kk (b) (1) requires a determination of whether
the lack of DNA evidence was unfair to the point that it
“ ‘undermine[s] confidence in the jury’s verdict’ ”; State
v. Marra, supra, 295 Conn. 88; the ultimate question
is still whether a reasonable probability exists that “the
petitioner would not have been prosecuted or convicted
had exculpatory evidence derived from DNA testing of
the biological material been available at trial.” Id., 90.
With respect to that question and its underlying require-
ment, the petitioner has not presented sufficient evidence
that the petitioner had held the victim down at all, that still would not
necessitate the conclusion that the petitioner was not present during
the murder and did not participate in some capacity.
State v. Smith

to establish a reasonable probability that potentially
exculpatory DNA evidence would have resulted in the
petitioner not being convicted or prosecuted had it been
available at his criminal trial. Therefore, testing was not
required under § 54-102kk (b).
The judgment is affirmed.
In this opinion the other judges concurred.