3 Conn. App. 225 | Conn. App. Ct. | 1985
After a jury trial, the defendant was convicted of carrying a pistol without a permit in violation of General Statutes § 29-35 and of altering or removing a pistol identification number in violation of General Statutes § 29-36. On appeal, he claims that the trial court erred in admitting into evidence the results of a scientific test and in denying his motion for a new trial.
The jury could reasonably have found the following facts: On April 23,1983, Officer Joseph Horesco of the Bridgeport police department was patrolling a housing project on foot when he heard a gunshot. About thirty to fifty feet away from him, he saw three men running and carrying what appeared to be rifles or shotguns. Horesco chased one of the men, who was later identified as the defendant, into a building. During the chase, Horesco noticed that the defendant was carrying what appeared to be a .38 caliber revolver. After
At trial, Horesco testified that the gun was wet with what appeared to be blood on the right side near the trigger. He also testified that the gun, which was placed in evidence by the state, was the same gun he found in the cinderblock windowsill. Trooper Robert Mills of the state forensic laboratory testified that he tested the gun for the presence of blood, that he found human blood on the weapon, that the amount of blood was insufficient for blood grouping, and that the test he performed was destructive of the sample. He opined, however, that if the defense were to run tests on the weapon, they might be able to ascertain whether blood was found there.
The defendant’s argument as to the admissibility of evidence in connection with the test is based on Practice Book § 738, which provides: “If a scientific test or experiment to be performed upon any object which has been the subject of a disclosure order may preclude or impair any further tests or experiments, the opposing party and any other person known to have or believed to have an interest in the matter shall be given reasonable notice and opportunity to be present and to have an expert observe or participate in the test or experiment, unless the judicial authority for good cause shall order otherwise.” (Emphasis added.) The defendant contends that a supplemental motion for discovery and production which he filed gave rise to the necessary disclosure order but that he was never given notice of the test.
In State v. Asherman, supra 723-726, our Supreme Court has provided us with a thorough review and a detailed analysis of the consequence of the consumption of blood samples during scientific testing. The court, quoting State v. Kersting, 50 Or. App. 461, 623 P.2d 1095, 1103-1104 (1981), stated that “where evidence sought to be disclosed has been functionally destroyed, but was subjected to scientific testing by the state prior to its destruction, a defendant must show that a retest would have been possible and must challenge the state’s test results, either by attacking the manner in which the test was conducted or by other evidence.” State v. Asherman, supra, 725. The defendant has not attacked the state’s findings nor has he offered any evidence that further testing would have resulted in the discovery of exculpatory evidence.
The defendant makes no claim that the state acted in bad faith or engaged in prosecutorial misconduct. The state disclosed its findings to the defendant, and
The admission of evidence of experiments, demonstrations or tests rests in the sound discretion of the trial court. Marko v. Stop & Shop, Inc., 169 Conn. 550, 561, 364 A.2d 217 (1975). The granting of a motion for a new trial also rests within the court’s discretion. A motion for a new trial may be granted “in the interests of justice” for constitutional or other material injurious error. Practice Book § 902. There was no such error here. Under the circumstances of this case, we hold that the trial court did not abuse its discretion in admitting evidence as to the test or in denying the defendant’s motion for a new trial.
There is no error.
In this opinion the other judges concurred.
The defendant learned that tests were to be conducted on the blood samples on the weapon during open file discovery provided by the state in