Opinion
KNLCR15128402
12-07-2017
STATE of Connecticut v. Dennis FOSTER
UNPUBLISHED OPINION
OPINION
Jongbloed, J.
On October 18, 2017, the defendant, Dennis Foster, filed a motion to dismiss the charges against him based upon the failure of the Norwich Police Department to preserve potentially useful evidence. He relies upon the Due Process Clause in article first, § 8, of the Connecticut Constitution and State v. Morales, 232 Conn. 707 (1995) and its progeny.
The court heard argument on the motion on October 27, 2017. Based on the facts set forth below, and for the reasons set forth below, the motion to dismiss is denied.
The parties agreed at the hearing on this motion that the court could consider the testimony and exhibits admitted at a previous hearing held on September 12, 2017 in connection with the defendant’s motion for an order pursuant to Practice Book Section 40-5. Three witnesses testified at that hearing, Lucinda Lopes-Phelan and Jillian Echard, both of the State of Connecticut, Department of Emergency Services and Public Protection, Division of Scientific Services, and Anthony Gomes, a detective with the Norwich Police Department. Following the hearing on that motion, the state determined that it was not seeking to introduce DNA evidence as to certain plastic baggies which were the subject of that motion, and the motion was therefore denied as moot. The State filed a memorandum in opposition to this motion to dismiss on October 27, 2017.
FINDINGS OF FACT
The court credits the testimony on September 12, 2017 of Lucinda Lopes-Phelan and Jillian Echard of the State Forensic Laboratory, as well as the testimony of Detective Anthony Gomes of the Norwich Police Department (" NPD"), and finds the following facts based on that testimony and exhibits submitted during the hearing.
1. On August 6, 2015, the Norwich Police Department executed a search and seizure warrant for 94 Wawecus Hill Road, Norwich, CT and the person of Dennis Foster. The warrant was based in part upon information from a reliable confidential informant (" CI") that a person known as " Jamaican D." lived at 94 Wawecus Hill Road in Norwich and was trafficking narcotics out of that address. The warrant was also based on information from two concerned citizens about suspicious activity occurring at 94 Wawecus Hill Road, including heavy vehicular and pedestrian traffic, subsequent surveillance and additional investigation.
2. Upon entering the residence at 94 Wawecus Hill Road, officers executing the warrant observed the defendant and another individual, Jimmy Wiggins, fleeing through the back sliding glass door. Both were detained on the back porch. Foster kept looking at a location in the back yard where the police subsequently located a clear plastic baggie containing crack cocaine and powder cocaine. (NPD Evidence Item # 1.) Police also recovered a plastic bag which contained a number of smaller bags which contained crack cocaine in the basement, (Item # 10), and white powdered substances in the kitchen which tested positive for acetaminophen, (Item # 4), and bathroom which tested positive for inositol, (Item # 7), a glass jar which appeared to contain cocaine residue, (Item # 2), a digital scale, (Item # 5), sandwich baggies, (Item # 6), and a total of $10, 634 in cash from the rear bedroom (Items # 8 and 9). No items were seized from the upstairs rooms. The police recovered $1, 061 from Foster. (Item # 11.)
3. NPD Detective Anthony Gomes was assigned to the group of officers executing the search warrant at 94 Wawecus Hill Road on August 6, 2015. He had no role in handling the evidence at the scene. Later, however, on March 7, 2017, he was asked to " repackage" some of the evidence collected at the scene. Specifically, he stated that it was his understanding that a decision had been made to conduct DNA testing on the bags themselves and that this necessitated separating the drugs contained within the bags from the bags. In order to accomplish this, Detective Gomes opened three items of evidence, (identified as items # 4, 7 and 10), separated the content of the bags from the bags and then placed all of the plastic baggies into a single manila envelope to send to the laboratory. Gomes’s report did not indicate that item # 1 had been repackaged and was included in the manila envelope, however the laboratory report reflects that item # 1 was received at the laboratory. Detective Gomes was unable to state whether this was a labeling error or an error in his report. He testified that prior to repackaging the evidence, he called the state forensic laboratory and spoke with Joy Rehoe and then packaged the evidence as he believed he had been instructed by placing all of the plastic bags together in one envelope. He stated that he used gloves to avoid transfer of evidence and changed gloves each time he handled a different piece of evidence.
4. Witnesses from the forensic laboratory testified that they received an envelope from the Norwich Police Department which contained evidence in the form of a number of small plastic bags or fragments of bags obtained from evidence items # 1, 4, 7 and 10. Ms. Echard testified that there were 20 itemized pieces of plastic in the submission and that the bags within the envelope were not separated or labeled in any way but all were mixed together. Ms. Echard testified concerning DNA transfer including the variables that effect transfer such as the length of time of contact between items, how much DNA was on the item and what type of cells were at issue. For example, she stated that there was a greater possibility of transfer of cells if the substance was a liquid such as blood, saliva or semen, as opposed to epithelial, touch or " skin-type" cells. In this case, she noted that the samples tested as skin or epithelial cells. Ms. Echard stated that it was possible that there could have been transfer from one to another of the bags because they had come into contact with each other when they were put together in the envelope and that although there was nothing which conclusively showed a transfer of cells between the items tested, she could not give an opinion to a reasonable degree of scientific certainty as to where the samples originated.
5. As set forth in reports prepared by Ms. Echard, (Exhibits J, K and L), three items were initially tested at the laboratory (submissions 5-14S1, 5-18S1 and 5-19S1). Those three items were consumed in testing and thus not available for any further testing. (Exhibit J.) The three items were found to contain a mixture of DNA and when compared with known DNA from the defendant, the defendant’s DNA was found to be included as a contributor in the DNA on the sample for two of the submissions, and, as to the third, his DNA could not be eliminated. (Exhibit K.) Subsequently, five more items from the original submission were tested, four of which were found to contain a mixture of DNA. Only limited data was detected from the fifth item, (item 5-11S-1), such that the comparison to the defendant’s DNA was inconclusive. (Exhibit L.) With regard to the four mixtures, as to one of the submissions, (item 5-13S1), the results were inconclusive. As to item 5-15S1, the defendant could not be eliminated as a contributor. As to both items 5-16S1 and 1-20S1, the defendant’s DNA was found to be included. (Exhibit L.) All five of these items were also consumed in the testing.
The chart showing the Conclusions/Summary of the findings contained in Exhibit L, shows that as to submission 5-20S1 the defendant " cannot be eliminated." This appears inconsistent with the written portion of the report which reads: " ... the DNA profile from item # 5-20S1 is at least 100 billion times more likely to occur if it originated from D. Foster and two unknown individuals than if it originated from three unknown individuals. Thus, the court relies on the written portion of the report rather than the summary in finding that the results showed the defendant was " included" as opposed to " cannot be eliminated."
DISCUSSION
The defendant claims that his due process rights were violated by the state’s failure to preserve certain items of evidence which now are not available for testing. Relying on article first, § eight, of the Connecticut Constitution, he seeks dismissal of the charges on the ground that the failure to properly process the packaging of items 1 and 10 precludes him from presenting evidence on his behalf at trial. He argues that if the evidence had been properly packaged it would have established the absence of his DNA and fingerprints on items 1 and 10.
In support of his motion, the defendant cites State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995). In Morales, our Supreme Court addressed the issue of whether a failure to preserve evidence that might be useful constitutes a violation of a defendant’s right to due process. The Morales court " considere[d] (1) what degree of protection the due process clause of our state constitution offers to criminal defendants when the police fail to preserve potentially useful evidence, and (2) what remedy should follow if the defendant has established that a failure to preserve such evidence has violated his state constitutional rights." Id., 713.
The standard under the U.S. Constitution is governed by Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), reh. denied, 488 U.S. 1051, 109 S.Ct. 885, 102 L.Ed.2d 1007 (1989). Pursuant to Arizona v. Youngblood, supra, 488 U.S. 58, " unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. In Youngblood, the police failed to refrigerate clothing and failed to test semen samples that were collected. Id. The Supreme Court stated that these failures by the police " can at worst be described as negligent." Id. The Supreme Court determined none of the information was concealed from the defendant at trial. Id. The Supreme Court agreed with the Arizona Court of Appeals, which found there was no suggestion of bad faith on the part of the police, and determined there was no due process violation. Id.
In rejecting the bad faith standard of Arizona v. Youngblood, supra, 488 U.S. 51, the Supreme Court held that " in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the Asherman balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: ‘the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.’ State v. Asherman, [193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985) ]." State v. Morales, supra, 232 Conn. 726-27. " Moreover, the Asherman test does not require the police to preserve every shred of physical evidence, every object it seizes from a crime scene, no matter how remote or tangential to the case the item seems to be. The trial court should include on its Asherman scale the reason for the unavailability of an item of evidence, as well as the motivation and good or bad faith of the police in failing to preserve that evidence." Id., 723. With regard to the appropriate remedy for any such due process violation, Morales states:
In State v. Hayles, 52 Conn.App. 564, 568 n.2, 727 A.2d 762, cert. denied, 249 Conn. 903, 732 A.2d 776 (1999), the Appellate Court noted that the Asherman and Morales standard apply to circumstances in which evidence is never made available to the defendant, whereas State v. Walker, 214 Conn. 122, 127, 571 A.2d 686 (1990), applies to late disclosures. The appropriate standard under Walker " is whether the disclosure came so late as to prevent the defendant from receiving a fair trial." (Internal quotation marks omitted.) State v. Walker, supra, 127. As discussed, applying the Asherman factors to the present case does not warrant dismissal. To the extent that this case might be viewed as presenting a late disclosure, the disclosure of the method used in repackaging of the bags is not so late as to prevent the defendant from receiving a fair trial. Here the defendant has been provided with evidence of the repackaging well in advance of trial and he is free to use that information in whatever manner he deems appropriate at trial. The state has represented that it does not intend to offer the results of the DNA testing of the bags. However, Detective Gomes and others will testify and be available for cross examination regarding the handling of the evidence.
[I]f the trial court concludes that a defendant’s due process rights have been violated, the court is not required to dismiss the charges, even if the state’s failure to preserve evidence has adversely affected the defendant’s right to a fair trial ... The trial court is not faced with the Hobson’s choice of either dismissing all criminal charges or denying any relief whatsoever to a criminal defendant who possibly has been prejudiced as a result of the negligence of the state ...
Rather, the trial court may fashion another remedy that appropriately ameliorates or offsets the prejudice that the defendant has suffered as a result of the unavailability of the evidence ... In some extreme cases, the trial court may have no choice but to dismiss the charges against the defendant. In another case, however, the appropriate remedy may differ, depending on the circumstances and the degree and type of prejudice to the accused.
Put simply, a trial court must decide each case depending on its own facts, assess the materiality of the unpreserved evidence and the degree of prejudice to the accused, and formulate a remedy that vindicates his or her rights ... The ultimate question for the trial court in such a case is: What remedy best serves the interests of justice? (Citations omitted.) Id., 729.
In applying the Asherman factors to the present case, the court hereby finds that the defendant’s due process rights have not been violated. With regard to the first factor, the materiality of the missing evidence, " [t]he measure of materiality is whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (Internal quotation marks omitted.) State v. Valentine, 240 Conn. 395, 417-18, 692 Conn. 727 (1997). In the present case, the court cannot conclude that " there is a reasonable probability that, had the evidence been disclosed ... the result of the proceeding would have been different." See id. Here the defendant speculates that if the evidence had been available for testing, it would have been beneficial. The defendant’s speculation that the evidence could have been beneficial " simply does not meet the standard necessary to prove materiality." State v. Barnes, 127 Conn.App. 24, 33, 15 A.3d 170 (2011), aff’d, 308 Conn. 38, 60 A.3d 256 (2013). On remand, the Appellate Court in Morales reasoned that it was pure speculation as to whether scientific tests could have been performed on a jacket which had been returned to a sexual assault complainant or whether such tests if performed would have produced scientifically useful evidence. State v. Morales, 39 Conn.App. 617, 623-24 (1995). Here scientific tests were in fact performed on the items and DNA results were obtained. While the method of repackaging the evidence generated the possibility of DNA transfer, that possibility is dependent on many variables as described by Ms. Echard. It is speculation on the part of the defendant that the results would have been any different if the evidence had been properly packaged. Thus the court cannot find that " there is a reasonable probability that, had the evidence been disclosed [or available for testing] ... the result of the proceeding would have been different." See id. The issues raised by the defendant with regard to the packaging of the evidence which led to the inability to perform further DNA testing may be raised during the trial, and it will be for the jury to evaluate and weigh any effect this may have in assessing the evidence and the credibility of the witnesses.
With respect to the second factor, there is little likelihood of mistaken interpretation of the evidence. The defendant will be permitted to cross examine the witnesses with respect to the investigation, the collection of the evidence, and the decision to combine the bags sent for DNA testing. The court finds that the likelihood of mistaken interpretation is minimal.
With respect to the third factor, the reasons for the nonavailability of the evidence, the court has found the absence of any bad faith conduct on the part of the Norwich Police Department and the defendant claims none. Although the defendant argues that the action taken was erroneous and that there should be " consequences" as a result of the error, he does not claim bad faith on the part of law enforcement. The police are under no obligation to perform any particular testing or to test every piece of evidence. See State v. Morales, supra, 232 Conn. 723; State v. Conn, supra, 234 Conn. 118. The decision to send the bags themselves, as distinguished from the content of the bags, to the laboratory to attempt to determine whether " touch DNA" evidence was on the bags was made as part of the investigation. However, the police were under no obligation to test the bags separately. Finally, any prejudice to the defendant is minimal and does not necessitate dismissal of the charges in the information. The court will permit wide latitude and extensive cross examination of the law enforcement witnesses with regard to the collection, packaging and testing of the evidence. The handling of the evidence goes to the weight the jury may assign to it. The defendant may make any appropriate arguments to the jury regarding the processing of the evidence and the thoroughness of the police investigation. Therefore, in light of all the circumstances, the defendant has not demonstrated any prejudice that cannot be cured by the time permitted and the wide latitude that the court will permit during cross examination. See State v. Barnes, 127 Conn.App. 24, 36, 15 A.3d 170 (2011), aff’d, 308 Conn. 38, 60 A.3d 256 (2013). Accordingly, the defendant’s due process rights under the state constitution have not been violated pursuant to the Asherman factors set forth in State v. Morales, supra, 232 Conn. 727. In view of all of the circumstances surrounding the unavailability of the specified evidence for further testing, the requested remedy of dismissal is not warranted.
For all the reasons set forth above, the motion to dismiss is DENIED.
It is so ordered, this 7th day of December 2017.
Here, the conduct of Detective Gomes may be described as error or oversight, and occurred as a result of miscommunication between the detective and the forensic science laboratory, but there has been no evidence of bad faith or an intentional failure to preserve evidence. Detective Gomes improperly packaged the evidence by putting all of the plastic bags and fragments into one large envelope instead of packaging each bag separately and then placing them all together in one envelope for transportation to the forensic science laboratory. Mixing the bags together raised the possibility of transfer of DNA evidence from one bag to another or others as testified to by Ms. Echard. However, " [t]he due process clause of the federal constitution is not violated when the police fail to employ a particular investigatory tool. Arizona v. Youngblood, [supra, 488 U.S. 59]. [T]he police do not have a constitutional duty to perform any particular tests ... State v. Conn, 234 Conn. 97, 118, 662 A.2d 68 (1995) ..." (Citations omitted; internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn.App. 726, 736, 779 A.2d 156 (2001). No claim of bad faith has been made and the court does not find any bad faith conduct on the part of the Norwich Police Department. Therefore, under the circumstances here, there can be no due process violation under the U.S. Constitution for the failure to preserve evidence that might be useful to the defendant.