159 Conn.App. 209
Conn. App. Ct.2015Background
- In May 1995 a woman was kidnapped and sexually assaulted; tissues were recovered at the scene and a tissue box was found in the defendant’s car. The defendant (Carter) was convicted in 1996 of aggravated sexual assault, attempt, kidnapping and firearm-related felony and sentenced to 70 years. Conviction affirmed on direct appeal.
- No DNA testing of the tissues was performed before or during the 1996 trial. The prosecution relied on eyewitness ID, vehicle/tissue observations, and a latent print consistent with the victim’s thumb.
- Under a 2008 consent petition the tissues were tested using modern STR (short tandem repeat) methods; four of five samples produced profiles that excluded Carter as a contributor.
- Carter filed a § 52-270 petition for a new trial claiming the 2008 STR results were newly discovered evidence because the pre-1996 Polymarker/DQ‑Alpha testing could not have produced profiles from those tissues.
- At the 2013 hearing the state presented no evidence; Carter’s sole witness, Dr. Carll Ladd (lab DNA supervisor), testified STR requires less DNA but that the 1995–96 Polymarker/DQ‑Alpha test (six loci) also would have produced usable profiles from the tested samples and that there was no evidence of PCR inhibitors in 2008. The trial court dismissed the petition for failure to make a prima facie Asherman showing; the dismissal was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2008 STR results are "newly discovered" under § 52‑270 because 1995–96 testing could not have produced profiles | Carter: Older Polymarker/DQ‑Alpha testing could not have identified the DNA on the tissues, so STR results are newly discovered and material | State: Expert testified the older Polymarker/DQ‑Alpha could have generated usable profiles from the same samples; petitioner failed to carry burden of showing evidence was unavailable with reasonable diligence | Held: The court affirmed dismissal — petitioner failed to show the 2008 DNA was newly discovered because available 1995–96 technology could have produced profiles |
| Whether petitioner exercised due diligence (Asherman) in obtaining DNA evidence before trial | Carter: Defense counsel reasonably could have foregone DNA testing in 1996 given the early state of DNA use and higher false inclusion risk | State: No evidence why defense did not seek testing; petitioner bears burden to show diligence and inability to obtain comparable results earlier | Held: Court refused to infer lack of diligence; petitioner presented no evidence about counsel’s choices, so Asherman diligence requirement not met |
Key Cases Cited
- Asherman v. State, 202 Conn. 429 (granting new trial requires newly discovered evidence, materiality, noncumulativeness, and probability of different result)
- Shabazz v. State, 259 Conn. 811 (clarifying Asherman standard)
- Skakel v. State, 295 Conn. 447 (explaining due diligence and burden on petitioner for newly discovered evidence claims)
- Nemhard v. Commissioner of Correction, 157 Conn. App. 368 (prima facie standard and Practice Book § 15‑8 motion to dismiss review)
- State v. Grimes, 154 Conn. 314 (petitioner’s burden to allege and prove facts entitling to a new trial)