Daniel Carter v. State of Connecticut (2013)

MEMORANDUM OF DECISION RE PETITION FOR NEW TRIAL

PROCEDURAL HISTORY

On March 6, 2013, the court conducted an evidentiary hearing on the petitioner Daniel Carter's petition for a new trial, pursuant to General Statutes § 52–270(a) and Practice Book § 42–55.   Additionally, the petitioner collaterally attacks the judgment of the underlying criminal action, State v. Daniel Carter, CR–95–0413735.   The basis of the petition is that deoxyribonucleic acid (DNA) testing unavailable at the time of Mr. Carter's underlying criminal trial has now eliminated Mr. Carter as a contributor to several tissues which Mr. Carter claims exonerates him from the crime.

At the conclusion of the petitioner's case, the respondent moved to dismiss the petition pursuant to Practice Book § 15–8 for failure to make out a prima facie case.

FINDING OF FACT

The court finds the following facts.   On June 6, 1996, the petitioner was convicted of five felonies in connection with a kidnapping and rape which occurred on or about May 24, 1995.   In that underlying criminal action, testimony was elicited that, among other criminal acts, while in a parked car, the petitioner attempted to force his penis into the complainant's anus.   He was unsuccessful in his attempt and subsequently ejaculated in the complainant's vagina.   Thereafter, he wiped his penis and genital area with tissues which he subsequently threw out of the car window.

Approximately fifteen hours subsequent to the incident, the police recovered some tissues, which had fecal material on them, but no presence of sperm.   The tissues were retained by the police as evidence.

Polymerase chain reaction [PCR] DNA testing was available in 1995 and 1996 which may have excluded the petitioner as a source of the genetic material on the tissues, but neither the petitioner nor the respondent sought to have such testing performed at that time.   In 2008 and 2009, more sophisticated short tandem repeat [STR] DNA testing was conducted, which revealed that biological material recovered from the tissues excludes the petitioner as a source of the complete male DNA profile taken from the tissues.

LEGAL STANDARD

“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.”   General Statutes § 52–270(a).

“No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of, except that a petition based on DNA (deoxyribonucleic acid) evidence that was not discoverable or available at the time of the original trial may be brought at any time after the discovery or availability of such new evidence.”  General Statutes § 52–582.

“[A] petition for a new trial is addressed to the discretion of the trial court whose decision thereon will be set aside on appeal only if it reflects a clear abuse of discretion ․ In deciding upon a petition for a new trial, the function of the trial court is to determine whether the evidence presented at the hearing on the petition together with the evidence presented at the original trial warrants the granting of the petition ․ The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done ․ and whether it is probable that on a new trial a different result would be reached.”  (Citations omitted;  internal quotation marks omitted.)  Demers v. State, 209 Conn. 143, 148–49, 547 A.2d 28 (1988).

The trial court should grant a petition for a new trial when it is satisfied 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 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.”  State v. Shabbazz, 259 Conn. 811, 820, 792 A.2d 797 (2002);  Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987).

A claim of newly discovered evidence involves evidence that “could not have been discovered previously despite the exercise of due diligence ․” State v. Shabbazz, 259 Conn. 820.   Although the statute governing petitions for a new trial also allows for such petitions “for other reasonable cause”;  General Statutes § 52–270;  “the circumstances in which reasonable cause may be found are limited.”  (Internal quotation marks omitted.)  Skakel v. State, 295 Conn. 447, 521, 991 A.2d 414 (2010).  “The basic test of ‘reasonable cause’ is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal.”  (Internal quotation marks omitted.)  Id., 522.

POSITIONS OF THE PARTIES

The petitioner asserts that STR DNA testing eliminates the petitioner as a contributor to biological material found on the subject tissues and, therefore, he is entitled to an order vacating the judgment in the underlying criminal action and is entitled to a new trial.

The respondent asserts that it was never the respondent's theory that the tissues recovered by the police were the tissues used by the petitioner to wipe himself, nor were the subject tissues utilized at trial.   The petitioner was convicted on other evidence and testimony of the complainant.   Additionally, the respondent asserts that PCR contributor eliminations were available at the time of trial and were not utilized by the petitioner and, therefore, the elimination evidence is not newly available.

ANALYSIS

A. Motion to Dismiss

At the conclusion of the trial on the petition for new trial, the state moved for dismissal for failure of the plaintiff to make out a prima facie case of newly discovered evidence, pursuant to Practice Book § 15–8.¹  The issues for consideration are whether PCR DNA testing, as it existed at the time of trial in 1996, could have been utilized to eliminate the petitioner as a contributor to genetic material contained on the tissues;  and whether STR DNA testing which may now exclude the petitioner as the contributor of genetic materials contained on the tissues constitutes “newly discovered evidence.”

The only witness in support of the petition was Dr. Carll Ladd, Forensic Science Examiner 3, a senior supervisor assigned to the DNA Unit at the Connecticut Forensic Laboratory.   According to Dr. Ladd, the current STR DNA testing is more sensitive, allowing the use of less genetic material, and is more discriminating than the PCR testing which existed in 1996, requiring one-tenth the amount of genetic material.   However, it is the opinion of Dr. Ladd that had PCR testing been done in 1996, the result would have been the same, that the petitioner was not a contributor to the genetic material contained on the tissues.

The petitioner has presented a hypothetical alternative, that there may have been contaminants in the samples, known as PRC inhibitors which, in 1996, may have prevented proper amplification to allow for profile testing.   The petitioner elicited testimony from Dr. Ladd that the presence of PCR inhibitors on the tissues could have prevented proper amplification for profile testing in 1996.   The DNA unit did not test for PCR inhibitors in 1996.

Dr. Ladd agreed that, hypothetically, there could have been PCR inhibitors which would have prevented valid profiles from developing in 1996.   However, Dr. Ladd also testified that there was no evidence of such inhibitors when the samples were tested in 2008.   While this hypothetical alternative may be possible, the court does not find any evidence presented that such PCR inhibitors existed which would have prevented a proper amplification if PCR testing had been done in 1996.

The court concludes that, in 1996, there existed PCR DNA testing which could have been utilized with a sample size which was sufficient that would have yielded the same result as the 2008 and 2009 testing.   That result is that the petitioner was not a contributor to the genetic material on the tissues.   Therefore, it cannot be said that newer STR testing constitutes “newly discovered evidence.”

To avoid a dismissal pursuant to Practice Book § 15–8, the plaintiff has the evidentiary burden and therefore must “put forth sufficient evidence that, if believed, would establish a prima facie case ․” F.E. Crandall Disposal, Inc. v. Ledyard, 141 Conn.App. 442, 451, 62 A.3d 544 (2013).  “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.  [T]he evidence offered by the [petitioner] is to be taken as true and interpreted in the light most favorable to [the petitioner], and every reasonable inference is to be drawn in [the petitioner's] favor.”  (Internal quotation marks omitted.)  Hurlburt v. DeRosa, 137 Conn.App. 463, 468–69, 49 A.3d 249 (2012).   However, “[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony ․ It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.”  (Citations omitted;  internal quotation marks omitted.)  Cadle Co. v. D'Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004).   Accordingly, in such instances a trial court confronted with a motion to dismiss for failure to establish a prima facie case is permitted to conclude “that the plaintiff did not sustain its burden of proof.”  Id.

The court finds that exclusory DNA testing was available in 1996 and, therefore, new DNA testing which would provided the same result does not constitute newly discovered evidence.   As the petitioner has failed to establish a prima facie case of newly discovered evidence, the respondent's motion to dismiss is granted.

B. The Merits

Even if the court did not dismiss the petition pursuant to Practice Book § 15–8 for failure to make out a prima facie case, the petitioner has failed to satisfy three of four prongs of the Asherman test.   The first prong is essentially the same as the ground which the petitioner was required to establish to refute the respondent's motion to dismiss:  that the evidence offered in support of a petition for new trial “is newly discovered such that it could not have been discovered previously despite the exercise of due diligence ․” Asherman, 202 Conn. 434.   The court has found that DNA testing existed in 1996 which would have yielded the same result as the 2008 and 2009 testing.   Therefore, such new testing does not constitute “newly discovered” evidence.

While much of the testimony and evidence presented at the subject hearing centered around the limitations of DNA testing at the time of conviction as well as the availability of exclusion testing which may have been available at the time, it must be noted that two other Asherman prongs have not been met by the petitioner, that the newly discovered evidence “would be material to the issues on a new trial” and that it “is likely to produce a different result in the event of a new trial.”  Asherman, 202 Conn. 434.

The subject tissues were not recovered by the police from the scene until approximately fifteen hours after the incident had occurred.   Petitioner's exhibit 1, underlying trial transcript, p. 153.   The respondent specifically did not attempt to utilize these tissues in support of its case and, in closing argument, refuted that the tissues were to be considered by the jury, calling them a “red herring.”   Petitioner's exhibit 1, underlying trial transcript, pp. 429, 434, 473.

The petitioner makes much of the fact that there was a presence of fecal material on the tissues.   However, the petitioner ignores the complainant's testimony that the perpetrator was unsuccessful in his attempt at anal rape.   Although the petitioner presented the testimony of a social worker that the complainant told her that she was raped “anally, orally and vaginally,” petitioner's exhibit 1, underlying trial transcript, p. 404, the complainant herself testified, “He tried to penetrate my anus.”   Petitioner's exhibit 1, underlying trial transcript, p. 37.   The complainant informed the physician who interviewed her prior to conducting the rape examination that her rectum was not penetrated.   Petitioner's exhibit 1, underlying trial transcript, pp. 224, 245.   The investigating officer described the tissues as “very soiled” with feces.   Petitioner's exhibit 1, underlying trial transcript, p. 154.   Furthermore, the forensic examiner in the underlying trial testified that the tissues which had fecal material on them contained no sperm and did not match the tissues in the tissue box recovered from the petitioner's car.   Petitioner's exhibit 1, underlying trial transcript, pp. 367, 380–81.   Cumulatively, the testimony was that the complainant was not anally penetrated, and that the recovered tissues did not match the tissues in the tissue box recovered from the petitioner's car, had a substantial amount of fecal material and there no presence of semen on them.   As there was no evidence elicited in the underlying trial which tied the tissues to the crime, it is irrelevant that the petitioner was excluded as a source of the biological material contained in the tissues.

The petitioner has not met the burden of establishing the second and fourth prongs of Asherman, that the newly discovered evidence “would be material to the issues on a new trial” and that it “is likely to produce a different result in the event of a new trial.”  Asherman, 202 Conn. 434.   As the petitioner has failed to meet his burden of establishing newly available evidence which is material and likely to produce a different result in a new trial, the court cannot find that an injustice has been done.

Therefore, even if the motion to dismiss was not granted, the petition would be denied for failure to meet the burden of proof set forth in Asherman v. State, 202 Conn. 429, 434.

ORDER

The petition is dismissed.

Robert E. Young, Judge

FOOTNOTES

FN1. Practice Book § 15–8 provides:  “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case.   The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”.  FN1. Practice Book § 15–8 provides:  “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case.   The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

Young, Robert E., J.