Carter v. State

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DANIEL CARTER v. STATE OF CONNECTICUT
(AC 36184)
Sheldon, Mullins and Harper, Js.
Argued February 18—officially released August 11, 2015

(Appeal from Superior Court, judicial district of New
Haven, Young, J.)
Damon A. R. Kirschbaum, with whom, on the brief,
were Vishal K. Garg and Kevin W. Munn, certified legal
intern, for the appellant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and David Clifton, assistant state’s attorney,
for the appellee (respondent).
Opinion

SHELDON, J. The petitioner, Daniel Carter, appeals
from the judgment of the trial court dismissing his peti-
tion for a new trial, in which he challenged his convic-
tion for aggravated sexual assault in the first degree in
violation of General Statutes § 53a-70a (a) (1), attempt
to commit aggravated sexual assault in the first degree
in violation General Statutes § 53a-49 (a) (2) and § 53a-
70a (a) (1), kidnapping in the first degree in violation
of General Statutes § 53a-92 (a) (2) (A), and commission
of a class A, B or C felony with a firearm in violation
of General Statutes § 53-202k on the ground of newly
discovered DNA evidence. The narrow issue before this
court is whether the trial court properly determined
that the mode of DNA testing available at the time of
the petitioner’s criminal trial in 1996, the Polymarker
and DQ-Alpha test (Polymarker/DQ-Alpha test), could
have been utilized to eliminate the petitioner as a possi-
ble contributor of DNA to certain biological evidence
found at the crime scene, thus preventing the petitioner
from establishing that the exculpatory results of more
recent DNA testing of such evidence by the Short Tan-
dem Repeat (STR) method in 2008 constitute newly
discovered evidence. We conclude that the petitioner
failed to show that the DNA results from the STR testing
constitute newly discovered evidence and, therefore,
affirm the judgment of the trial court.
The following facts from the petitioner’s criminal trial
and procedural history are relevant to this appeal. The
petitioner’s conviction stemmed from a kidnapping and
sexual assault that occurred in the early morning hours
of May 24, 1995. At the time of the incident, the victim,
a self-identified chronic drug abuser, was battling a
$300 a day crack cocaine habit. To support her habit,
the victim frequently stole and engaged in prostitution.
On May 24, 1995, at approximately 2 a.m., the victim
left the apartment she shared with her fiance´ in the
Fair Haven section of New Haven to purchase and
smoke crack cocaine. She had last smoked crack
cocaine around 1:30 a.m. and was craving more. The
victim had walked about four blocks when she saw
a man in a burgundy car ‘‘driving around [her].’’ She
approached the car, and the man, who had his window
open, offered her a ride. The area was illuminated by
streetlights, and thus she was able to see the man’s
face. He was a black male, heavy set, with thick glasses,
very short hair, and a ‘‘little mustache.’’ He said his
name was ‘‘Devon.’’
The victim got into the car, and the man agreed to
take her to Quinnipiac Avenue. Shortly thereafter, he
said he had to make a quick stop. He stopped the car
on Bailey Street, sat back in his seat, and reached down
and pulled out a ‘‘big black gun.’’ The victim heard a
clicking noise, which she immediately recognized as
the sound of a gun being cocked. The man put the gun
to the victim’s head and told her that if she did what
he said, he would not harm her. He ordered the victim
to perform oral sex on him. Fearing for her safety, she
did so. After a few minutes, he told the victim to remove
her pants. The victim partially disrobed, removing one
of her pant legs. The man, still holding the gun to the
victim’s head, penetrated her vaginally with his penis.
He told the victim to turn over, and then he attempted
to penetrate her anally. The victim testified that ‘‘it was
hurting so bad, I started to holler and cry real loud.’’
He stopped, told the victim to stop crying, and handed
her some tissues from a tissue box on the backseat of
the car to wipe her eyes. He then penetrated the victim
vaginally a second time and ejaculated inside her.1 When
he had finished assaulting the victim, he got off of her,
put the gun down, wiped his penis off with tissues from
the backseat, and threw them out of the car window.
After he had zipped up his pants, he drove down the
street, took a right, and dropped the victim off at the
corner at her request. He then backed his car all the
way up the street, and left.
The victim, who had a criminal record and was on
probation, did not initially report the incident to the
police. Instead, she went home, showered, and went to
bed. The next morning, the victim met with her proba-
tion officer, Lisa D’Amato, at the Office of Adult Proba-
tion in New Haven.2 As the victim was exiting D’Amato’s
office, she saw a man in the hallway whom she immedi-
ately recognized as the man who had sexually assaulted
her. The victim went back into D’Amato’s office and
told her that she had been raped and that she had just
identified the man who had done it. D’Amato contacted
the police, and the victim went home, where she was
interviewed by Officer Martin D’Adio of the New Haven
Police Department. Shortly thereafter, the victim gave
D’Adio descriptions of her assailant and his vehicle.
She described the vehicle as a red, two door sedan.
The victim later identified the petitioner in a showup
identification conducted on the street outside of the
probation office. The police located the petitioner’s
vehicle parked on State Street, across from the proba-
tion office. The victim accompanied police officers to
that location, where she identified the vehicle as that
driven by her assailant. The victim told D’Adio that he
would find a box of tissues on the backseat of the
vehicle. When D’Adio looked inside the vehicle, he con-
firmed that there was a box of tissues on the backseat.
The victim then directed D’Adio to the location where
the assault allegedly had taken place. The victim
pointed out several tissues soiled with fecal matter lying
on the ground, and identified them as the tissues that
the petitioner had used to wipe himself off with follow-
ing the assault. D’Adio seized the tissues and bagged
them as evidence.3
D’Adio then drove the victim to Yale-New Haven Hos-
pital, where she was treated for sexual assault. A foren-
sic examination was performed and biological evidence
for a rape kit was collected. The victim reported to
attending medical personnel that she had been raped,
anally, orally and vaginally, at gunpoint.
The police later executed a search warrant at the
petitioner’s home, where they seized a black, semiauto-
matic handgun and a magazine from the second drawer
of a bureau in the bedroom. The petitioner’s wife testi-
fied that the handgun was in the drawer when the peti-
tioner left for work on the evening of the alleged assault,
and that it was still in the drawer at 2 a.m. The petition-
er’s car also was seized. Detective Christopher Grice
testified concerning the forensic investigation of the
petitioner’s vehicle. Grice testified that he had lifted a
latent print from the exterior passenger side door of
the vehicle that was consistent with the victim’s right
thumbprint. Detective Robert Benson also examined
the print and confirmed the identification.
The petitioner agreed to be interviewed by the police.
The petitioner stated that he had been working at the
Howmet Corporation in North Haven on the morning
of the assault. A subsequent check by the police of
the petitioner’s employment records, however, revealed
that he had clocked out of work at 1:44 a.m. on May
24. The petitioner’s supervisor at Howmet, Steve Nilsen,
related to the police that, on that day, the petitioner
had told him that his mother-in-law had died suddenly,
and therefore that he was needed at home. Nilsen did
not see the petitioner for the remainder of the shift. The
police subsequently determined, after speaking with the
petitioner’s wife, that his mother-in-law was still alive
and living in Hartford. When confronted by the police
about his employment records—specifically, his
recorded 1:44 a.m. departure time—the petitioner main-
tained that he had been at work for his full shift on
May 24, and suggested that he must have forgotten to
clock back in after his break. Unprompted, the peti-
tioner further offered that, on the day of the assault,
he had had sexual intercourse with an old friend named
Charmilla Brooks. He stated that this sexual encounter
took place in the front seat of his vehicle at a McDon-
ald’s restaurant around 10 a.m. Police investigators
were unable to locate a person named Charmilla
Brooks.
Beryl Novitch, a biochemist with the Connecticut
Forensic Science Laboratory (laboratory), was called
as a defense witness. Novitch testified concerning her
examination of the biological samples collected by med-
ical personnel who treated the victim for sexual assault,
the soiled tissues collected at the crime scene, and the
tissue box found on the backseat of the petitioner’s
vehicle. Novitch testified that the tests she performed
on these items did not detect the presence of spermato-
zoa or seminal fluid. She was able to detect the presence
of fecal matter on the tissues found at the crime scene.
On cross-examination, the prosecutor elicited testi-
mony that the waffle design on the soiled tissues did
not match the waffle design on the tissues found in the
open tissue box in the petitioner’s vehicle. Although
the difference in the waffle design was not highlighted
for the jury in the state’s closing argument, the prosecu-
tor did argue, consistent with D’Adio’s testimony, that
the soiled tissues at the crime scene had been collected
by the police out of prudence, even though it could not
be determined whether they had any connection to
the assault.4
On the basis of the previously described evidence,
the jury found the petitioner guilty of two counts of
aggravated sexual assault in the first degree, attempt
to commit aggravated sexual assault in the first degree,
kidnapping in the first degree, and commission of a
class A, B or C felony with a firearm. The court rendered
judgment in accordance with the jury’s verdict and
imposed a total effective sentence of seventy years
incarceration. This court affirmed the petitioner’s con-
viction in a per curiam decision; see State v. Carter, 45
Conn. App. 919, 696 A.2d 1322 (1997); and our Supreme
Court denied certification to appeal. State v. Carter,
243 Conn. 911, 701 A.2d 334 (1997).
In 2008, the petitioner filed a consent petition pursu-
ant to General Statutes § 54-102kk,5 requesting that the
soiled tissues recovered at the crime scene be subjected
to DNA testing. Neither the state nor the defense had
requested DNA testing in 1995 or 1996. Based on the
results of the DNA testing, which excluded the peti-
tioner as a possible contributor of DNA to the biological
material on the tissues, the petitioner filed the present
petition for a new trial pursuant to General Statutes
§ 52-270. His petition was based on a claim of newly
discovered evidence, which was supported by allega-
tions that ‘‘[t]he DNA testing procedures used for case-
work by the Connecticut Forensic Science Laboratory
before June 6, 1996, would not have been capable of
identifying DNA profiles from the biological material
recovered from the tissues.’’ The petitioner further
alleged, on that basis, that ‘‘the results of the DNA
testing are newly discovered evidence that was not
discoverable or available at the time of the original
trial.’’
A hearing on the petition was held on March 6, 2013.
The petitioner presented the testimony of a single wit-
ness, Dr. Carll Ladd, a senior supervisor assigned to
the DNA unit at the laboratory. Ladd testified about
the following: the manner in which DNA evidence is
currently collected and analyzed at the laboratory using
the STR method; the results of DNA testing of the evi-
dence samples collected in the petitioner’s case using
the STR method; and the likely results of DNA testing
of such evidence samples using the Polymarker/DQ-
Alpha method, had such testing been conducted at the
time of the underlying criminal investigation and the
petitioner’s resulting criminal trial in 1995 and 1996,
respectively.
According to Ladd’s testimony, both STR testing and
Polymarker/DQ-Alpha testing rely on a technique
known as Polymerase Chain Reaction (PCR), which
enables examiners to take a very small sample of biolog-
ical evidence from a crime scene and amplify it in vol-
ume to create a usable quantity of testable DNA. Both
procedures involve four common steps. The first step,
extraction, is the isolation of the DNA from the biologi-
cal material in the evidence sample, and the isolation
of the DNA from the exemplar taken from the individual
whose DNA is being compared to the DNA of unknown
origin. The second step is quantitation, which is the
process by which the amount of available DNA is deter-
mined. The third step is amplification, a sort of ‘‘molecu-
lar xeroxing’’ process that enables examiners to
duplicate the available DNA in the evidence sample to
facilitate an identification.6 In the fourth step of the
procedure, the PCR products that have been generated
are separated on the basis of their size, and a DNA
profile is created. The same technique is applied to the
DNA of known origin, and the two profiles are then
compared. If the genetic markers on the known DNA
profile and the unknown DNA profile are identical,
there is a ‘‘match,’’ and the known individual is included
as a possible source of the unknown DNA. If there is
no match, the DNA samples are considered to be from
different sources, and the known individual is excluded
as a potential contributor to the evidence sample.
At the time of the petitioner’s criminal trial, the DNA
unit at the laboratory used the Polymarker/DQ-Alpha
test. This PCR based testing process generated a DNA
profile using DNA sequences from six locations, or loci,
on the DNA molecule. The Polymarker/DQ-Alpha test
had a random match probability of approximately 1 in
3000, which means that the expected frequency with
which the DNA profile of an individual selected at ran-
dom would match the DNA profile generated from the
tested sample was approximately 1 in 3000.
In 1999, a more sophisticated form of PCR based
testing, known as STR testing, replaced the Polymarker/
DQ-Alpha test. STR testing determines the numbers of
short repeat sequences that appear in tandem at fifteen
different loci on the DNA molecule. DNA of unknown
origin, the evidence sample, is amplified using PCR,
and a DNA profile is generated based upon the number
of short tandem repeats that appear at each locus.
Because the DNA profile is generated based upon data
from fifteen loci on the DNA molecule, STR testing is
more discriminating than preexisting testing methods
such as the Polymarker/DQ-Alpha test that examined
data from fewer DNA loci. STR testing enables examin-
ers to obtain results with less genetic material than
earlier testing methods made possible. Thus, for exam-
ple, whereas Polymarker/DQ-Alpha testing required 100
copies of the DNA molecule to create a usable DNA
profile, STR testing can produce a usable profile with
only ten copies of the DNA molecule.
With both STR testing and Polymarker/DQ-Alpha test-
ing, the DNA profile that is generated from the evidence
sample is compared to the DNA profile generated from
a sample of known origin, and that comparison is used
to determine whether the source of the known sample
must be excluded or can be included as a possible
source of the evidence sample of DNA. Because STR
testing is far more discriminating, in optimal cases, the
random match probability is less than 1 in 7 billion, a
figure chosen because it is the estimated human popula-
tion living on the earth.7
In the petitioner’s case, five evidence samples were
taken from the tissues recovered at the crime scene
and analyzed using STR testing. Four of these samples
contained enough genetic material to generate a usable
DNA profile. The DNA profile generated from these
four samples was compared to the petitioner’s DNA
profile, and he was excluded as a possible contributor
to the DNA from the tissue samples.
The petitioner’s counsel sought to elicit testimony
that because the Polymarker/DQ-Alpha testing available
in 1995 and 1996 required more genetic material to
generate a DNA profile than STR testing, a DNA profile
could not have been generated from the genetic material
on the tissues at the time of the petitioner’s criminal
trial. Ladd testified, however, that the samples with
sufficient genetic material to generate a DNA profile
using STR testing in 2008 would have been capable
of generating a DNA profile using the Polymarker/DQ-
Alpha testing available in 1995 and 1996. Ladd testified
that three of the four samples submitted for testing in
2008 contained an optimal amount of genetic material,
and one sample contained an amount that, although not
optimal, was sufficient to generate a usable DNA profile.
The petitioner’s counsel then asked Ladd whether
the presence of PCR inhibitors may have prevented
a DNA profile from being generated using the older
technology.8 Ladd stated that, based on the testing per-
formed in 2008, there was no evidence of any problem
arising from the presence of PCR inhibitors. Because
no DNA testing was performed in 1995 and 1996, Ladd
could not ‘‘categorically eliminate’’ the possibility that
PCR inhibitors may have been present then. He stated,
however, that ‘‘to a reasonable degree of scientific cer-
tainty,’’ he expected that a usable DNA profile could
have been generated using Polymarker/DQ-Alpha
testing.
Finally, Ladd testified concerning the frequency of
use of DNA testing in criminal cases in 1995 and 1996.
Ladd testified that the DNA unit at the laboratory
worked on twenty-five cases in 1995 and approximately
forty cases in 1996. He could not recall how many times
examiners testified in criminal trials in 1995 and 1996,
except to say that it was a limited number of times.
Ladd testified that in recent years, by contrast, the DNA
unit has handled approximately 1000 cases per year.
At the close of the petitioner’s case, the state moved
to dismiss the petition for a new trial pursuant to Prac-
tice Book § 15-8 for failure to establish a prima facie
case. The court reserved judgment on the state’s motion
to dismiss. The state rested without presenting any evi-
dence. After receiving posttrial briefs from the parties,
the court issued a memorandum of decision. On the
basis of the evidence presented, the court concluded
that the petitioner had failed to present evidence that
the DNA technology available at the time of his trial
could not have been utilized to exclude him as a contrib-
utor of DNA to the biological evidence on the soiled
tissues, thus foreclosing his claim that the results from
the DNA testing performed in 2008 constituted newly
discovered evidence under § 52-270. The court thus dis-
missed the petition for a new trial.9 The court thereafter
granted the petitioner’s petition for certification to
appeal, and this appeal followed.
On appeal, the petitioner claims that the court
improperly dismissed his petition for a new trial on
the ground that he failed to demonstrate that the DNA
evidence was newly discovered, a necessary element
for establishing a prima facie case under § 52-270.10
We disagree.
We begin with the legal principles that govern our
resolution of the petitioner’s claim. ‘‘Pursuant to § 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 stan-
dard set forth in Asherman v. State, 202 Conn. 429, 434,
521 A.2d 578 (1987), and further refined in Shabazz v.
State, 259 Conn. 811, 827–28, 792 A.2d 797 (2002). Under
Asherman, 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 discov-
ered such that it could not have been discovered pre-
viously despite the exercise of due diligence; (2) would
be material 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.’’ Skakel v. State, 295 Conn. 447, 466–67, 991 A.2d
414 (2010).
On a petition for new trial on the basis of newly
discovered evidence, ‘‘[t]he question which must be
answered [with respect to whether the petitioner had
exercised due diligence in preparing his case] is not
what evidence might have been discovered, but rather
what evidence would have been discovered by a reason-
able [person] by persevering application, [and] untiring
efforts in good earnest.’’ (Internal quotation marks omit-
ted.) Id., 507. ‘‘It is the petitioner’s burden to prove
that efforts used to find [the evidence] would not have
yielded the same result had they been applied earlier.’’
(Emphasis in original.) Id., 514. ‘‘This strict standard is
meant to effectuate the underlying equitable principle
that once a judgment is rendered it is to be considered
final, and should not be disturbed by posttrial motions
except for a compelling reason.’’ (Internal quotation
marks omitted.) Asherman v. State, supra, 202 Conn.
434.
‘‘The legal principles governing a trial court’s decision
to dismiss a claim for failure to present a prima facie
case pursuant to Practice Book § 15-8 are well settled.
A prima facie case, in the sense in which that term is
relevant to this case, is one sufficient to raise an issue
to go to the trier of fact. . . . In order to establish a
prima facie case, the proponent must submit evidence
which, if credited, is sufficient to establish the fact or
facts which it is adduced to prove. . . . In evaluating
the [granting of] a motion to dismiss, [t]he evidence
offered by the plaintiff is to be taken as true and inter-
preted in the light most favorable to [the plaintiff], and
every reasonable inference is to be drawn in [the plain-
tiff’s] favor. . . . Whether the plaintiff has established
a prima facie case entitling the plaintiff to submit a
claim to a trier of fact is a question of law over which
[this court’s] review is plenary.’’ (Internal quotation
marks omitted.) Nemhard v. Commissioner of Correc-
tion, 157 Conn. App. 368, 373–74, A.3d (2015).
Thus, the issue on appeal is whether the petitioner
submitted sufficient evidence, viewed in the light most
favorable to him, to satisfy the necessary elements that
must be shown to sustain a petition for a new trial. As a
threshold matter, the petitioner must present sufficient
facts to show that his claim is predicated on newly
discovered evidence. Evidence is newly discovered if
it was not available at the time of trial, or it could
not have been obtained by the exercise of reasonable
diligence. Skakel v. State, supra, 295 Conn. 506–507.
In the present case, the petitioner alleged in his peti-
tion for a new trial that the DNA testing methods avail-
able at the time of his trial would not have been capable
of identifying DNA profiles from the genetic material
recovered from the tissues, and thus that the results of
DNA testing using the modern STR method were not
discoverable or available at the time of his criminal
trial. The petitioner’s sole witness, Ladd, refuted this
claim. Contrary to the petitioner’s assertions, Ladd testi-
fied that the prior DNA technology was capable of gen-
erating a usable DNA profile. Ladd premised his
conclusion on the fact that the amount of genetic mate-
rial in the evidence samples met or exceeded the
amount necessary to perform the Polymarker/DQ-
Alpha test.
The petitioner attempted to elicit evidence that the
possible presence of PCR inhibitors in the evidence
samples would have prevented a DNA profile from
being generated. Because the evidence was not submit-
ted for testing prior to the petitioner’s criminal trial,
Ladd testified that he could not rule out the possibility
that there may have been PCR inhibitors present in the
evidence samples at that time. Ladd stated, however,
that there was no evidence of PCR inhibitors when the
testing was performed in 2008. Thus, he concluded,
‘‘to a reasonable degree of scientific certainty,’’ that a
usable DNA profile could have been generated using
the Polymarker/DQ-Alpha test. In light of this testimony,
the petitioner failed to offer any evidence to establish
one of the essential prima facie elements of his claim.
On appeal, the petitioner argues that there was evi-
dence in the record from which the trial court could
have found that it was too speculative to conclude that
the petitioner would have been eliminated as a DNA
contributor to the soiled tissues had DNA testing been
conducted at the time of his criminal trial. The peti-
tioner contends that whether the DNA tests available
in 1995 and 1996 would have been capable of generating
a DNA profile is ‘‘an untested and untestable hypothe-
sis.’’ Thus, he argues, the issue must be resolved in his
favor. This argument misconstrues the applicable legal
standard. It was the petitioner’s burden to produce
evidence to support his theory that a new trial was
warranted in this instance. See Skakel v. State, supra,
295 Conn. 515. The failure of the petitioner’s trial coun-
sel to subject the evidence samples to DNA testing
prior to his criminal trial, and his subsequent failure to
present any evidence to support the assertions
advanced in his petition for a new trial, left the court
without any basis from which to draw the necessary
inference that the testing available in 1995 and 1996
would not have produced the same results as the
2008 testing.
The petitioner also contends that dismissal of his
petition was inappropriate because a fact finder reason-
ably could have found, on the basis of the evidence
presented in support of his petition, that reasonable
diligence did not require criminal defendants to pursue
DNA testing in 1995 and 1996. More specifically, he
argues that Ladd’s testimony regarding the limited use
of DNA testing in criminal trials in 1995 and 1996 demon-
strated that, ‘‘while the science behind DNA evidence
was gaining acceptance, there was still substantial
uncertainty as to how the evidence should be utilized
in court.’’ The petitioner further argues that the high
probability of a ‘‘coincidental inclusion’’ in 1995 and
1996 presented a significant risk of false inculpatory
evidence. Thus, he claims, a fact finder reasonably
could have found that the uncertainty and degree of
imprecision surrounding DNA evidence discouraged
defense attorneys from seeking DNA testing.11 The
record shows, however, that the petitioner did not pre-
sent any evidence concerning how the state of DNA
technology in 1996 impacted defense lawyers’ decisions
at that time. More importantly, the petitioner presented
no evidence as to the reasons why his own trial attorney
did not investigate or seek DNA testing on the soiled
tissues at the time of his criminal trial.
‘‘[T]he petitioner has the burden of alleging and prov-
ing facts which would, in conformity with our settled
equitable construction of the statutes, entitle him to a
new trial on the grounds claimed . . . .’’ State v.
Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966). Here,
the petitioner alleged that the DNA evidence was newly
discovered on the ground that it could not have been
obtained using the technology that was available in 1995
and 1996. Ladd, however, debunked that proposition
entirely, and the petitioner presented no other evidence
from which the trier of fact could have drawn an infer-
ence to the contrary. Thus, the petitioner cannot suc-
ceed on his petition for a new trial, the ground for
which must be premised on newly discovered evidence
that could not have been discovered by the exercise of
reasonable diligence prior to his criminal trial. Accord-
ingly, we conclude that the court properly dismissed
the petition.
The judgment is affirmed.
In this opinion the other judges concurred.
1
There was conflicting testimony at trial on this subject. Medical personnel
who treated the victim following the assault testified that she reported that
her assailant ejaculated into a tissue. The victim testified that her assailant
ejaculated inside her.
2
The victim testified that D’Amato had prepared a violation of probation
arrest warrant based on the victim’s drug use and prostitution.
3
The victim’s testimony on cross-examination by defense counsel con-
cerning the tissues, which were marked as an identification exhibit, was
as follows:
‘‘Q. And later on you took the police officer back to those same tissues?
‘‘A. That’s right.
‘‘Q. And those tissues you claim he wiped himself . . . [b]ut you saw
him throw the tissues out the window?
‘‘A. Those were the same tissues he wiped himself off after he had raped
me, those were the same tissues.
‘‘Q. Because you later identified those tissues as being the same tissues,
isn’t that true?
‘‘A. Yeah, they’re the same tissues. I seen him thr[ow] them out the window.
‘‘Q. Yes. And a police officer took you back to that scene, that location
at Bailey Street, isn’t that right?
‘‘A. Yes. What are you trying to say, that I didn’t get raped? . . .
‘‘Q. The officer took you back to Bailey where the alleged assault took
place, is that correct?
‘‘A. Yes, he did.
‘‘Q. You pointed out these tissues on the ground to the police officer,
isn’t that right?
‘‘A. Yep.’’
4
On appeal, the state argues that the tissues are immaterial because they
were not relied upon by the state at trial as a basis for the petitioner’s con-
viction.
5
General Statutes § 54-102kk provides in relevant part that ‘‘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. . . .’’
6
Using PCR, the DNA molecule is copied, the copy of the DNA molecule
is then copied, and so on.
7
Testing at fifteen loci permits additional points of comparison and, thus,
provides additional opportunities for the known individual to be excluded
as the source of the DNA.
8
Ladd explained that in some cases the presence of organic compounds
that have not been fully removed during the DNA extraction may inhibit
the amplification process. These compounds are referred to as PCR inhibi-
tors. Ladd further explained that PCR inhibitors are a potential factor with
both Polymarker/DQ-Alpha and STR testing.
9
Alternatively, the court concluded that the petitioner could not prevail
on the merits under Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578
(1987), reasoning that: (1) the evidence was not newly discovered; (2) the
evidence would not be material to the issues in a new trial; and (3) the
evidence was not likely to produce a different result in a new trial. Because
we decide that the court properly dismissed the petition for a new trial, we
do not reach this alternative ground.
10
General Statutes § 52-270 (a) provides: ‘‘The Superior Court may grant
a new trial of any action that may come before it, for mispleading, the
discovery of new evidence or want of actual notice of the action to any
defendant or of a reasonable opportunity to appear and defend, when a just
defense in whole or part existed, or the want of actual notice to any plaintiff
of the entry of a nonsuit for failure to appear at trial or dismissal for
failure to prosecute with reasonable diligence, or for other reasonable cause,
according to the usual rules in such cases. The judges of the Superior Court
may in addition provide by rule for the granting of new trials upon prompt
request in cases where the parties or their counsel have not adequately
protected their rights during the original trial of an action.’’
11
On this score, the petitioner claims that the court incorrectly interpreted
§ 52-270 to require him to prove that the DNA testing available at the time
of his criminal trial would not have excluded him as a contributor, which
he argues, ignores the ‘‘qualitative difference’’ between DNA technologies
then and now.