Opinion
No. CR-95-0412193
February 25, 2011
MEMORANDUM OF DECISION
By motion dated November 23, 2010, the state moves to dismiss petitioner's Petition for DNA Testing of Biological Evidence dated October 29, 2010, based upon principles of res judicata. Both parties filed memorandums in support of their positions and argument was heard by the court on February 14, 2011.
PROCEDURAL HISTORY
Petitioner stands convicted of Murder, Section 53a-54a, Carrying a Pistol Without a Permit, Section 29-35(a), and Criminal Possession of a Pistol or Revolver, Section 53a-217c. These convictions were affirmed on appeal, State v. Dupigney, 78 Conn.App. 111 cert. denied, 266 Conn. 1 919 (2003). The charges arose from a dispute between alleged drug dealers, including the petitioner and the victim, culminating in the alleged shooting of the victim by the petitioner.
The petitioner's first petition for DNA testing was filed September 12, 2007 pursuant to Section 54-102kk of the General Statutes. The petition sought to perform DNA testing on the blood, hair and any other biological evidence on and in a black ski-type knit hat seized at the location of the shooting. Several witnesses at the trial had testified that the petitioner was wearing a black hat at the time of the murder and the hat had been admitted into evidence. The trial court held a hearing on the petition December 4, 2007 and ultimately denied the petition from the bench. This denial was affirmed by the Connecticut Supreme Court, State v. Dupigney, 295 Conn. 50 (2010).
Petitioner then filed a second petition for DNA testing of the same hat. In the second petition, petitioner proposes to put on additional testimony that was not offered at the trial, which, petitioner alleges, will establish "a probability sufficient to undermine confidence in the outcome of the jury trial," citing State v. Dupigney, 295 Conn. 50, 64 (2010). He alleges, further, that this proposed testimony will alleviate the deficiencies cited by the Supreme Court in Dupigney.
The state responds in its Motion To Dismiss that the issue has been fully and fairly litigated as a result of the first petition and, thus, the principles of res judicata and collateral estoppel prevent any further litigation of the same claim or issue.
LAW AND ANALYSIS
In Dupigney the first issue resolved by the Court was the standard of proof required for a petition filed pursuant to Section 54-102kk. The Court determined that access to DNA testing is only required in situations in which, "if exculpatory results were discovered by DNA testing, these results would undermine confidence in the outcome of the trial." State v. Dupigney, supra, 67.
As to the merits of the petition, the Court noted that the trial court, Damiani, J., reasonably determined that petitioner had not established a conclusive link between the hat seized at the site of the shooting and the hat worn by the shooter; and, further, noted ". . . the strong evidence, entirely unrelated to the hat, identifying the petitioner as the shooter." Id., 72.
Therefore, in its second petition, petitioner now proposes additional evidence not offered at trial, to directly tie the hat seized to the shooter and to diminish the element of "strong evidence," unrelated to the hat, identifying the shooter and noted by the Court.
There is no question that the petitions, in substance, are identical. Nor is there any question that the first petition was heard, on the merits; a judgment rendered, appealed and affirmed by the Court. The second petition simply proposes additional evidence, beyond the context of the trial record, to support the same claim.
"Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but, also as to any other admissible matter which might have been offered for that purpose." (Citations omitted.) State v. Aillon, CT Page 6041 189 Conn. 416, 423-25 (1983).
"The difficulty has always been in determining what matters are precluded by the former adjudication. The rule of claim preclusion prevents reassertion of the same claim even though additional or different evidence or leal theories might be advanced in support of it." (Citation omitted; internal quotation marks omitted.) State v. Ellis, 197 Conn. 436, 464 (1985).
"Res judicata . . . should be applied as necessary to promote its underlying purposes . . . (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation . . . But by the same token, the internal needs of the judicial system do not outweigh its essential function in providing litigants a legal forum to redress their grievances . . . The doctrine of legal preclusion . . . should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies." (Citations omitted; internal quotations marks omitted.) State v. Ellis, supra, 465-66.
With this element of "flexibility" in mind, this court considered petitioner's offer of proof in connection with its second petition.
Petitioner proposed calling Aisha Wilson, a witness called by the state at the trial. Petitioner anticipates that this witness will testify that the hat admitted into evidence "appears to be the same hat that she saw the shooter wearing . . ." and that the victim was not wearing a hat at the time of the shooting. (In other proceedings petitioner accuses his attorney at trial of failing to introduce this evidence through the witness and failing to seek DNA testing of the hat.)
Obviously, this evidence was not only available at trial, but, absent any indication to the contrary, available at the time of the hearing on the first petition. Furthermore, testimony that the hat "appears" to be the same hat, offered approximately one decade after the trial, would be, in all probability, less than conclusive evidence linking the hat to the shooter.
Petitioner, further, proposes calling Kevin Moore, a party who did not testify at the first trial. Petitioner anticipates Mr. Moore would testify that he had been robbed by the victim in 2004 and that his friend and associate, Aubrey Rodney, killed the victim in retaliation and, in fact, reported the killing to him while both were incarcerated. Pending cases and related Fifth Amendment privilege prevented his availability at trial.
No explanation was given as to Mr. Moore's availability in connection with the first petition and, apparently, this witness provides no further connection between the shooter and the hat seized at the scene. Furthermore, the late disclosure and the obvious credibility issues relative to a "jail house informant," State v. Arroyo, 292 Conn. 558, 567-70 (2009), make it difficult to anticipate any significant impact with respect to the "strong evidence," unrelated to the hat, referred to by the Court in Dupigney.
Given the fact that this additional testimony tying the hat to the shooter was available both at trial and at the time of the first petition and, given the totality of the offer of proof, principles of res judicata should prevail and petitioner's second petition should be dismissed.
Additionally, petitioner's proposal of "new evidence," in addition to the DNA testing of the hat, in order to undermine confidence in his conviction, suggests a potential issue not raised by the parties.
Clearly, once the trial court has imposed sentence, the court loses jurisdiction absent certain exceptions established in common law and by statute. Section 54-102kk of the General Statutes appears, on its face, to confer jurisdiction to the court in order to allow for DNA testing in situations where exculpatory results would undermine confidence in the conviction; that is, the conviction resulting from the evidence at trial. In fact, in the first petition, petitioner argued the request for DNA testing in the context of the trial evidence. Would petitioner's proposal, in the second petition, of DNA testing in the context of new evidence be consistent with the limited jurisdiction afforded the trial court pursuant to Section 54-102kk? Would such new evidence constitute, in effect, a new trial without satisfying the legal necessity of a petition for a new trial? It is, however, entirely possible that the legislative intent behind Section 54-102kk was to allow for DNA testing no matter what the context, trial evidence or new evidence, if exculpatory results would undermine the original conviction.
In any event, the legislative history sheds little light on the issue. Therefore, this court, for the purpose of these proceedings, exercised a presumption in favor of subject matter jurisdiction absent a strong showing of legislative intent to the contrary. Merrill v. NRT New England, Inc., 126 Conn.App. 314,320 (2011).
The petition is Dismissed based on principles of res judicata for the reasons previously recited.