William Coleman v. Waterbury States Attorneys Office (2012)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The plaintiff William Coleman brings this Petition for New Trial, from his 2005 conviction of sexual assault in a spousal relationship, unlawful restraint in the first degree, and other crimes.   The conviction was upheld on appeal.   State v. William C., 103 Conn.App. 508, 930 A.2d 753, certification den., 284 Conn. 28, 934 A.2d 244 (2007).   Coleman's subsequent Petition for Writ of Habeas Corpus was heard and dismissed, TSR CV05 4000622 (Nazarro, J.), and Coleman's appeal from that decision was dismissed by the Appellate Court.

In his Petition, the plaintiff advanced several grounds, all of which were stricken by the court (# 103.01, Dooley, J.) except the claim that certain DNA evidence which may have been unavailable at the time of Coleman's criminal trial demonstrates either that he is actually innocent or that a retrial will more likely than not produce a different outcome.

The defendant Waterbury States Attorney's Office has filed a Motion for Summary Judgment (# 110) on the grounds that even if the DNA evidence is considered to be “newly discovered,” it fails to prove support the plaintiff's contentions.   The States Attorney argues that the undisputed facts compel a judgment in the defendant's favor.

The plaintiff opposes summary judgment.   However the plaintiff has submitted no memorandum of law in opposition to summary judgment and has submitted no documents in opposition, although there were a number of documents, such as partial uncertified hearing transcripts, appended to his original petition for new trial.   On November 27, 2012, the court heard argument on the Motion for Summary Judgment from the plaintiff and from the defendant.

THE ELEMENTS OF A CAUSE OF ACTION FOR A NEW TRIAL

Conn. Gen.Stat. § 52–270(a) governs petitions for a new trial.   The statute permits the Superior Court to grant a new trial “for the discovery of new evidence.”   Case law defines the elements that must be present for a plaintiff to succeed on his petition.   The plaintiff must demonstrate, by a preponderance of the evidence, that:  (1) the proffered evidence is newly discovered, 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.  Asherman v. State, 202 Conn. 429, 434, 521 A.2d 797 (2002).

THE STANDARDS FOR SUMMARY JUDGMENT

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.  Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).   The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that the party is entitled, under principles of substantive law, to a judgment as a matter of law.  Id.

In ruling on a motion for summary judgment, the court's function is not to decide the issues of material fact, but rather to determine whether any such issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts.  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).

In supporting or opposing summary judgment, Conn. P.B. § 17–45 requires that a party file affidavits and other documentary evidence sufficient to establish or refute the existence of a disputed issue of fact.   Unadmitted allegations in the pleadings are not considered competent evidence and do not constitute proof of a material fact.  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).   Rather, in moving for or opposing summary judgment, a party must submit documentation that would form the basis for evidence admissible at trial.  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).   See also Conn. P.B. § 17–46.

The court notes that both sides rely on a document attached as Appendix A to the State's Memorandum in Support of Summary Judgment.   The plaintiff has appended this exact document to his Petition for New Trial at pages 54–56.   The document is on the letterhead of the State of Connecticut Department of Public Safety Division of Scientific Services, Forensic Science Laboratory, and is dated June 18, 2009.   The document is entitled DNA Section/DNA Report.   The substance of the report contains a DNA analysis of samples taken from three sections of a pair of undershorts and one sample taken from the plaintiff William Coleman as a known exemplar.   The report is signed by two Forensic Science Examiners who are presumably employed by the Forensic Science Lab.

The document, as presented, is not admissible.   There is no accompanying affidavit from anyone with knowledge of the records or reporting procedure of the State Forensic Science Laboratory identifying the document, and more, providing some evidence to qualify the report as admissible under some rubric that excepts the proffered exhibit from the hearsay rule.   Conn.Code of Ev. § 8–1, 8–2.   Without some affidavit at least identifying the report as a genuine copy of what it purports to be, it cannot be admitted under Conn.Code of Ev. § 8–3(7) or under the business record exception, Conn. Gen.Stat. § 52–180, since the document is under no circumstances self-authenticating.

However, neither side has objected to the court treating the report as admissible for purposes of this proceeding.   Indeed, if the report were properly authenticated and if the contents of the report were supported by the testimony of one of the forensic examiners who performed the analysis, it might form the basis for admissible evidence, were its contents to be found relevant and material.   For that reason, and in the interest of resolving this matter, the court will ignore the admissibility problem, and proceed to determine this matter as though the information in the report were properly before the court.

THE NEWLY DISCOVERED EVIDENCE

Appendix A, as discussed above, is an analysis of DNA from a pair of undershorts.   The report indicates that the shorts were “submitted” to the Forensic Lab by the Habeas Unit of the Public Defenders Office on February 18, 2009.   The report indicates that swabs were taken from three areas on the shorts, and that the lab had a fourth piece of evidence:  a known DNA sample from Coleman.   In testing and analyzing the three swabs from the shorts, the lab reported that all three swabs tested as containing a “mixture” of DNA, and that Coleman was, to a high degree of probability, a contributor of some of the DNA in each swab.   The report does not indicate how many other contributors of DNA might be in each mixture or who those other contributors might be.   It should also be noted that the report does not indicate from what bodily emission any of the DNA was likely deposited, i.e., from semen, as opposed to urine, sweat, fecal matter, blood, saliva, or other sloughed tissue.

Neither the report nor any other submission by either party indicates where the item of clothing was originally located in relation to the date of the criminal acts, or when the Public Defender's Office obtained custody of the shorts, or where the shorts were located and who handled them during the time between the crime, which took place in 2002, and the date the shorts were submitted to the lab for analysis in 2009.   The plaintiff argues that the shorts are his, and that the report of a “mixture” of DNA on the shorts means that, in addition to his own DNA, at least two other persons contributed DNA on the shorts.   He argues that this proves that the victim was lying about the sexual assault of which the plaintiff was convicted.   Rather proves that the plaintiff had consensual sexual contact with the victim together with a third person, such that the plaintiff could not have sexually assaulted the victim and the victim was lying about the assault.   The court notes that the plaintiff has submitted no admissible evidence on any of these points, meaning the plaintiff has not submitted any “affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like,” Conn. P.B. § 17–45, from which the court could determine even the most basic facts about the chain of custody of the shorts, or even whether the shorts belonged to or were worn by the plaintiff during any relevant time.   The plaintiff has not even submitted his own affidavit.   See, e.g., Conn. P.B. § 17–46.

THE SIGNIFICANCE OF THE DNA EVIDENCE

The State concedes that it is likely that the shorts belonged to the plaintiff and were worn by him at the time of his arrest.¹  Beyond that, the state argues that there is no inference that can be drawn to support the plaintiff's theory that the DNA evidence would be material at a new trial or would alter the outcome at a retrial.  Asherman, supra, 434.   The court agrees.

Assuming for the sake of argument that the plaintiff, in the exercise of due diligence, could not have obtained the DNA evidence in time to present it at his criminal trial or at his habeas corpus hearing, the evidence simply lacks the materiality assigned to it by the plaintiff.   The evidence is that the shorts the plaintiff was wearing on the day of his arrest contained his own DNA and the DNA of at least one other unknown person.   This evidence has no tendency to prove or disprove that he sexually assaulted the victim.

There is no evidence of whether any of the DNA was derived from a bodily fluid associated with sexual activity, either from the plaintiff or any other person.   There is no evidence that the plaintiff was wearing the shorts at or about the time of the crime or at or about any other period in which he may have had sexual congress with the victim or anyone else.   If it were a sexual emission that contributed the plaintiff's DNA in the shorts, there is no evidence that it occurred as a result of a consensual sexual act as opposed to a sexual assault.   There is no evidence as to the period of time over which the shorts were worn, such that any DNA from the plaintiff and one or more other persons may have been deposited at different times over a number of hours or days.

The report concerning the DNA evidence is not material, as it is not probative, directly or circumstantially, of the lack of the sexual assault of which the plaintiff was convicted.   For that reason the DNA evidence would not produce a different result at a new trial.

CONCLUSION

The State has met its burden to show that the undisputed facts compel judgment in its favor.   There is no set of facts presented here upon which the court could grant the plaintiff's petition for new trial.   Accordingly, the Motion for Summary Judgment is granted.

Patty Jenkins Pittman, Judge

FOOTNOTES

FN1. The State has submitted a partial transcript (uncertified) of Coleman's testimony at a court hearing on July 6, 2004, in which Coleman refers to the existence of a pair of shorts he was wearing at the time of the arrest and to the fact that, if the shorts were tested, they would reveal the DNA of a person named Heather (who is not the victim).The State argues from this that the three year statute of limitations on petitions for a new trial, Conn. Gen.Stat. § 52–582, ran out long before the plaintiff commenced this action, since the plaintiff has always been aware that DNA evidence from the shorts he was wearing at the time of his arrest might contain (disputed) exculpatory evidence.   Since the court has no information about whether, or under what circumstances, such DNA evidence was “available” before 2009, the court declines to decide this case on the statute of limitations grounds..  FN1. The State has submitted a partial transcript (uncertified) of Coleman's testimony at a court hearing on July 6, 2004, in which Coleman refers to the existence of a pair of shorts he was wearing at the time of the arrest and to the fact that, if the shorts were tested, they would reveal the DNA of a person named Heather (who is not the victim).The State argues from this that the three year statute of limitations on petitions for a new trial, Conn. Gen.Stat. § 52–582, ran out long before the plaintiff commenced this action, since the plaintiff has always been aware that DNA evidence from the shorts he was wearing at the time of his arrest might contain (disputed) exculpatory evidence.   Since the court has no information about whether, or under what circumstances, such DNA evidence was “available” before 2009, the court declines to decide this case on the statute of limitations grounds.

Pittman, Patty Jenkins, J.