Opinion
No. CV 02-081 88 51
May 14, 2003
MEMORANDUM OF DECISION
This is a petition for a new trial which was filed August 1, 2002. Petitioner alleges that mitochondrial DNA (mtDNA) evidence, relating to hair specimens, is newly discovered, could not have been discovered earlier by the exercise of due diligence, is material, not merely cumulative, and likely to produce a different result upon retrial. Following a careful consideration of the extensive information submitted, as well as the pertinent authorities, it is my best judgment, based on the analysis set forth herein, that this petition should be granted.
In their answer, respondents admit that the mitochondrial DNA evidence is newly discovered; but, deny the remaining grounds for the petition.
Petitioner was tried to a jury, before this court, on a two-count information charging Sexual Assault in the First Degree, General Statutes Section 53a-70 (a) (1), and Kidnapping in the First Degree, General Statutes Section 53a-92 (a) (2) (A). Evidence commenced on October 29, 1997, and on November 10, 1997, the jury returned verdicts of guilty on both counts.
The convictions were affirmed by the Connecticut Supreme Court on September 5, 2000. State v. Reid, 254 Conn. 540 (2000). The facts upon which the guilty verdicts were predicated are set forth, as follows, in the opinion of the Supreme Court.
The appeal was initially filed in the Appellate Court and was transferred to the Supreme Court (by the Supreme Court). Relevant to this petition, the defendant (petitioner) claimed that the trial court improperly: (1) admitted expert testimony relating to microscopic hair analysis, and (2) denied the defense motion to suppress the victim's out-of-court identification of him from a photographic array.
In the early morning hours of November 8, 1996, the victim walked from a bar in East Hartford to her home, which was also in East Hartford. While the victim was walking along Burnside Avenue, the defendant emerged from a path leading out of Martin Park and, after asking the victim for a light, grabbed her by the left wrist. The defendant pushed a sharp object into the victim's side and forced her approximately seven feet down the path into Martin Park. A struggle ensued between the victim and the defendant, and they both fell to the ground. The defendant put his hands around the victim's neck to quiet her screams and threatened to kill her. The defendant then carried the victim further along the path into Martin Park, and pushed her to the ground. The defendant straddled the victim and placed his knees upon her arms. The defendant began to choke the victim, with one hand on her nose and mouth and the other around her throat, and again threatened to kill her. The victim began to lose consciousness and, out of fear for her life, decided to stop struggling. The defendant then forced the victim to perform fellatio. He then placed a condom on his penis, turned the victim onto her front side and forced her to engage in vaginal intercourse. The defendant then pulled the victim to her feet and held her by her arm. After the victim pulled up and buttoned her pants, the defendant again threatened to kill her. The defendant continued to hold the victim by the arm, and in this manner forced her along the path toward Burnside Avenue. The defendant let go of the victim, and she walked to her home along Burnside Avenue. When the victim arrived home, she called a friend and told the friend that she had been raped. The victim then hung up and called the police. Officer Brian Fox of the East Hartford police department was dispatched to the home of the victim, and spoke with her about the assault. Fox took the victim to Manchester Hospital, where he secured as evidence her clothes and a screwdriver that she surreptitiously had picked up at the scene of the attack. The victim became increasingly upset, and elected not to be examined at the hospital. Fox then took the victim home. Because the victim was so upset, Fox did not take a statement from her. Fox did, however, obtain from the victim a description of the attacker, which included the fact that he had freckles across his nose and under his eyes.
On November 12, 1996, at the request of Officer Francis Malozzi of the East Hartford police department, the victim went to the East Hartford police station to give a statement concerning the attack. After the victim gave a statement about the attack, Malozzi showed her a photographic array containing photographs of eight persons that could have fit the description of her attacker. The victim identified the defendant as her attacker, and began to shake and cry. Later that afternoon, Malozzi searched the area where the attack took place and recovered an earring belonging to the victim. Approximately one week later, the defendant was arrested.
I . EVIDENTIARY MOTIONS
Prior to the commencement of the evidence in the criminal trial, this court conducted an evidentiary hearing on the defense motion to suppress the victim's pretrial identification of the defendant from the photographic array. The defense motion was denied and the Findings of Fact and Decision, following the evidentiary hearing, were placed on the record on October 29, 1997. This court, in denying the motion, stated that neither the composition of the array, nor the manner and circumstances of its presentation to the victim, was "in any way unnecessarily suggestive"; further, applying Brathwaite standards, that even if the array, or its manner of presentation, were somehow viewed as suggestive, the identification was nevertheless reliable upon an examination of the totality of the circumstances.
Early in the trial this court, outside the presence of the jury, conducted a lengthy Porter hearing on the defense motion to exclude hair analysis evidence. Two witnesses testified at the hearing, Mr. Kiti Settachatgul, lead criminologist, and Ms. Deborah Messina, supervising criminologist, both from the Connecticut State Police Forensic Laboratory. Mr. Settachatgul testified that he is a criminalist in the Trace Evidence Section of the State Laboratory, that he performed the hair analysis/comparison in this case, that he has been doing such analyses and comparisons since 1974, that he has been qualified to testify as a hair analysis expert in the courts of various jurisdictions over one hundred times, and in Connecticut on more than thirty occasions. The witness indicated that hair comparison analysis procedures have been employed for many decades (for perhaps over one-hundred years), that such comparison testimony has been accepted in all fifty states, in numerous other countries, and is generally accepted as reliable within the field of forensic science. He stated that the basic and primary tool used in hair analysis is the comparison or bridge microscope; this device permits the microscopic viewing of two specimens, the known and the unknown, side by side, in order to determine similar or dissimilar characteristics. Hair specimens are composed of various components, and based on the size, shape, distribution, and density of certain of those components, as observed microscopically, conclusions can be drawn by a trained and experienced examiner concerning the species or origin (human or animal) of the specimen (s), racial origin (Caucasian, Asian, or Negroid), and somatic origin (scalp, pubic, beard, etc.). Thus, when the known and unknown specimens are examined by means of the bridge microscope, the expert can determine the origins of the unknown specimen (human/animal, racial, and somatic), and formulate an opinion regarding the similarities or dissimilarities between the visible characteristics of the two specimens. The witness explained that other methods of hair analysis exist, but that the above-described methodology has been widely used because it is not destructive of the evidence and the slides can be preserved, allowing the specimens to be viewed by another examiner (or anyone else) in the future.
State v. Porter, 241 Conn. 57 (1997).
Ms. Messina testified that Criminalistics includes the Trace Section which performs analyses of hair, fibers, solids, and glass. In addition, the State Forensic Laboratory has an Instrumentation Unit which takes care of gun shot residue and instrumental analyses, an Arson and Explosives Unit which is part of the Chemistry Section, and a Forensic Biology Unit, which takes up standard serology and DNA analysis. Ms. Messina supervises all of the aforesaid sections or units. She testified that the standard and most widely used method for hair analysis is the microscopic comparison method employed in this case.
Mr. Settachatgul also testified to his education, training, and experience in forensic science.
After placing findings of fact and law on the record, this court denied the defense motion to exclude the microscopic hair analysis evidence, having determined that the offer satisfied the Porter/Daubert test. On appeal, the Supreme Court stated: "[w]e conclude that microscopic hair analysis is not the type of evidence that we contemplated in Porter to be subjected to the Daubert test." The Court went on to state: ". . . a hearing as to the admissibility of the evidence was not required by Porter, and the trial court properly admitted the evidence." 254 Conn. supra at p. 549. The Supreme Court also upheld the trial court's ruling that the hair analysis evidence was relevant, and any irregularities in procedures or methodology went to weight, not to reliability or admissibility.
State v. Porter, supra fn. 3; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
In such regard, the Supreme Court observed that "[a]lthough Mr. Settachatgul's training is based on science, he testified about a subject that simply required the jurors to use their powers of observation and comparison" with respect to a photographic enlargement of the known and unknown hair specimens.
The Supreme Court noted that, "even if a Porter hearing were necessary, the trial court properly conducted the hearing and found that the microscopic hair analysis satisfied the Porter test because of its general acceptance in the scientific community." 254 Conn. at 549, fn. 3.
II. CRIMINAL TRIAL A. Evidence
Although the facts established by the evidence, upon which the guilty verdicts were predicated, and as recited in the Supreme Court opinion, have been set forth above, other more detailed factual information developed at, and concerning, the criminal trial is relevant to the allegations contained in the petition, as well as to points raised by counsel in oral arguments (civil trial).
The victim, M., testified that she was employed by a marketing service concern in East Hartford located approximately two miles from her residence. On the day preceding the incident, Thursday, November 7, 1996, she left work at 8:00 p.m., went home, had a bite to eat, and refreshed; shortly thereafter, a friend picked her up and they drove to the U. Café, arriving there at about 9:00 p.m. The Caf é is also approximately two miles from M.'s residence and is located on Main Street, just up from Burnside Avenue. The friend who accompanied M. to the Caf é was a white male; at the Café, M. socialized and played pool. She was at the Caf é for approximately four hours, leaving a little before 1:00 a.m. on November 8, 1996; during that time she consumed three drinks, all Bacardis and Coke. None of the persons with whom she was talking, drinking, or playing pool was African-American. M. did not own an operable car; when she left the Café, she walked south on Main Street a short distance to Burnside Avenue, and then east on Burnside (on the sidewalk) in the direction of her residence. There were sidewalks and street lights on Burnside Avenue. After M. had proceeded east on Burnside Avenue for approximately fifteen minutes, she was approached, as set forth above, by the person she later identified as the defendant, just past the entrance to Martin Park.
M. testified that the gentleman who gave her a ride to the Caf é leaves for work "early in the morning." For that reason, he left the Caf é earlier (about 11:30 p.m.), but before doing so, he asked if she needed a ride home; M. replied "she'd be alright."
As indicated by the factual recitation in the Supreme Court decision, M., following the sexual assault incident, walked along Burnside Avenue to her home, telephoned her girlfriend, told her she had been raped, and upon hanging up, called the East Hartford police department. Officer Brian C. Fox, who was working the midnight shift, testified he was dispatched to M.'s home on the sexual assault complaint. The victim told the officer that she had been sexually assaulted; she was crying and was very upset. M. stated to the police officer that she had been out drinking that night and she appeared to have been drinking. The officer testified that M. did not appear to be drunk, she did not slur her words, and she did not have any problems with her balance. Similarly, when Officer Fox transported her to the hospital, she had no trouble walking to the cruiser. Officer Fox requested that M. bring a change of clothes to Manchester Memorial Hospital; at the hospital the officer obtained and secured the clothes which were worn by the victim at the time of the incident.
M. testified that she was wearing suede boots, jeans, a shirt, a leather jacket, a bra, and underpants.
M., on the night of the attack, provided Officer Fox with a description of her attacker: 5' 6" or 7," stocky, light skinned black male, with freckles across his nose and under his eyes. Officer Fox did not take a written statement from M. because she was too upset. With respect to the description given by M. to the officer that night, he testified M. did not say anything about the shape or appearance of her assailant's eyes or nose.
The officer emphasized that he did not take a written statement from M. on the night of the incident because she was extremely upset, not because she had been drinking earlier in the evening. While Officer Fox did not take a written statement from the victim, he did prepare a written report regarding what occurred on November 8, 1996.
On November 12, four days after the incident, Officer Malozzi took a written statement from M. at the East Hartford police department. At that time she viewed a photographic array prepared by Officer Malozzi and selected photo #7, that of Mark Reid, as the person who attacked her in the early morning hours of November 8. She testified, before the jury, that there was no doubt whatsoever in her mind that the person portrayed in #7 was the person who sexually assaulted her, and further, that although freckles were not visible in the photograph, she recognized him immediately because of features "around his eyes [and] the bridge of his nose." After testifying before the jury as to her November 12 identification of Mark Reid from the array, she then proceeded to identify petitioner in court as her attacker.
As stated, Officer Malozzi testified that the victim began to tremble and cry when she pointed to photo #7 as the person who had accosted and violated her four days earlier.
In further describing her assailant to the police, M. stated that he had a stocky build, weighed about 230 pounds, was dressed in black clothing, and wore a baseball cap with the bill facing frontward. As to height and presence of facial freckles, defendant/petitioner's height was measured, before the jury, by means of a measuring device, as 6,' and, the jury was allowed to view his facial features by having him stand directly in front of the jury box.
The court having denied the motion to exclude hair analysis evidence, Mr. Settachatgul testified before the jury as set forth in the Supreme Court opinion:
Before the jury, Settachatgul testified that he had examined the clothes that the victim was wearing on the night of the attack and recovered three pubic hairs that did not come from the victim. Then, through a process known as microscopic hair analysis, Settachatgul compared these unknown [pubic] hairs to [pubic] hairs provided by the defendant. Settachatgul found that the characteristics of the known hairs from the defendant were similar to the characteristics of those recovered from the victim's clothing . . .
During his testimony, Settachatgul displayed an enlarged photograph of one of the defendant's hairs and one of the hairs recovered from the victim's clothing as they appeared side-by-side under the comparison microscope. Settachatgul explained to the jurors how the hairs were similar and what particular features of the hairs were visible. He also drew a diagram of a hair on a courtroom blackboard for the jurors. The jurors were free to make their own determinations as to the weight they would accord the expert's testimony in the light of the photograph and their own powers of observation and comparison.
Mr. Settachatgul testified that the three hairs recovered from the victim's clothing were pubic hairs. These hairs were rootless, indicating that they were shed, not plucked; one was found on the victim's jeans, another on a sock, and another on her lower undergarment (panty). According to Mr. Settachatgul, the pubic hairs were recovered from the aforesaid items of clothing by a standard process of combing or scraping down the clothing surface. The rootless hair specimens so recovered were then microscopically compared with the pulled or plucked pubic hairs contributed by the defendant. Based on the microscopic analysis, Mr. Settachatgul's conclusion was that the three rootless hairs recovered from M.'s clothing were Negroid pubic hairs which had similar characteristics to the pubic hairs supplied by petitioner. The witness indicated that he could state, "to a reasonable degree of scientific certainty," that the pubic hairs found on the victim's clothing were microscopically similar to those pubic hair samples taken from Mark Reid.
Mr. Settachatgul emphasized that all he could determine from his microscopic analysis was that the hairs recovered from the clothing were pubic hairs, that they were negroid pubic hairs, and that they were similar to the pubic hairs obtained from defendant; that is, the pubic hairs recovered from the victim's clothing (sock, jeans, and panty) had characteristics similar to those pubic hairs supplied by defendant. Mr. Settachatgul clearly stated that the microscopic comparative analysis procedure would not, and could not, permit him to conclude that the clothing pubic hairs were identical to the samples provided by defendant.
Mr. Settachatgul explained to the jury the microscopically visible similarities using State's Exhibit #11, a photograph depicting a "hundred magnification" of two strands of pubic hair, each on a slide, as they would appear to a viewer through the comparison microscope (on the left hand slide was a pubic hair recovered from the victim's clothing; on the right slide was the pubic hair contributed by Mark Reid). In explaining the use of the bridge microscope, and the viewing of the components of a strand of hair, the witness drew on the blackboard, for the jury, a diagram of a hair strand showing, essentially, what components would be visible for making the comparison. It was abundantly clear, as confirmed by the language in the Supreme Court decision, that Mr. Settachatgul was testifying only to the very "narrow opinion" that the three pubic hairs recovered from the victim's clothing were similar to the samples obtained from the defendant, and, that he, Settachatgul could not say that the questioned specimens were the pubic hairs of petitioner/defendant. Cf. 254 Conn. at p. 551.
State's Ex. #11 is not a large blown-up mounted, placard type photo, but rather, is a small, normal size photo depicting the enlarged or magnified speciments as they appeared when viewed through the comparison microscope. The photograph, Ex. #11, was circulated among the jurors during trial and, of course, was included among the exhibits with the jury during its deliberations.
Before the jury, Officer Francis Malozzi testified regarding the November 12, 1996 written statement he took from the victim, M.; also, his request that M. view the array consisting of eight similar photos, including a one-month-old photo of Mark Reid. As stated, when M. viewed the array, she began to "tremble and her eyes watered" as she pointed to photo #7 (petitioner). Officer Malozzi stated that he first saw petitioner when he was arrested and, at that time, petitioner looked as he appeared in the photo; that is, his hair was longer at the time of his arrest and in photo #7, than it was the day the officer testified.
Officer Malozzi testified, and an inspection of photo #7 indicates, that facial freckles were not visible in the photo. (Ex. #8, Photo Array, criminal trial.)
Officer Malozzi further testified that having had twenty-three years experience as a member of the East Hartford police department, he was familiar with Burnside Avenue. It's heavily traveled by both cars and pedestrians, and is a "well lit thoroughfare." He stated that by Martin Park, near the S turn in Burnside, the area is well lit by street lights, a flashing traffic light, and lights from businesses (including Kentucky Fried Chicken, a Seven-Eleven store, and the funeral home directly across the street with its illuminated front). Burnside is well lighted in this area because of the S turn — the two sharp curves in the road. Officer Malozzi further testified that in the course of the investigation of this case, and at the request of the Assistant State's Attorney, he and another officer entered, at night, the field area of the park where this crime occurred and, with the ambient lighting, were able to clearly observe each other's features up to a distance of approximately ten feet.
In ruling on the Motion to Suppress, this court specifically found that the evidence clearly established that there was ambient lighting from the street known as Burnside Avenue, as well as lights from a restaurant and businesses on that main thoroughfare. In discussing the Brathwaite reliability factors, I stated "[t]here was evidence of ambient lighting . . . that this occurred some eight feet back or into the field from . . . [the] sidewalk [and] [t]here was ambient lighting from establishments on the thoroughfare . . . [and] from the thoroughfare, Burnside Avenue."
Officer Frederick J. Paquette, of the East Hartford police department, testified that he was part of the Community Out-Reach Division, which division exists for the purpose of improving "the way of life" in any particular area of the town. His responsibilities entailed "work . . . at Burnside Avenue as an area," getting to know the residents and the business people. The officer got to know Mark Reid, knew that he was living at 42 Burnside Avenue, and would see him "on foot" on Burnside Avenue "numerous times . . . on a given week, at that time, more than a dozen times."
As set forth in the previous recitation of facts (Supreme Court opinion), Officer Fox, upon responding to the sexual assault complaint in the early hours of November 8, 1996, took the victim, M., to Manchester Memorial Hospital where he received as evidence her clothes and the screwdriver which she surreptitiously slid into the sleeve of her jacket while on the ground during the attack. Officer Jeffrey Rodick, East Hartford police department, testified that he delivered the evidentiary items obtained from the victim to the State Police Forensic Laboratory, Evidence Receiving Unit. He indicated that although his duties as Evidence Officer included processing evidence for fingerprints, he did not "process" the evidence in this case; rather, it was all processed at the State Police Forensic Lab. Officer Rodick further stated that with respect to the screwdriver, the fingerprint analysis performed by the State Police Laboratory disclosed that there were no identifiable prints found on the screwdriver; that is, there were "no prints . . . that could've been identified as belonging to a specific individual."
The defendant did not testify at trial. The defense case consisted of the measurement of defendant's height before the jury, a close-up viewing of his facial features by the jury, and the testimony of the custodian of the records of Preferred Consumer Network International, successor to the victim's 1996 employer, United Buyers Service.
The purpose of this testimony was to undertake to show that M., contrary to her testimony, was no longer employed at United Buyers on November 7, 1996. The evidence was admitted over the State's objection that it was impeachment on a collateral subject. The records showed that M. was paid through November 3; however, the witness could not confirm that M. was no longer in the employ of United Buyers after that date, as the witness was not with the company at that time. The witness testified that employees of Preferred Consumer's "usually get paid the week after you've worked . . . [s]o if you were paid through November third, it was for the prior week." The employment records contained the W-2 form reflecting the same amount of earnings as set forth in the payroll records. On cross-examination, the witness stated she did not know what the usual payday was for United Buyers, and that the records did not show when the victim picked up her last paycheck. The witness acknowledged that she was not the record keeper at that time, had been so only since May 1997, that the person who maintained the payroll records before May 1997 was no longer with the company, and that the records, prior to May 1997, were not kept the way the witness would keep them. Further, the records do not show a termination date for M. The jury heard this testimony and was entitled to give it whatever weight, if any, it felt it merited. The Assistant State's Attorney argued in her summation: "The records don't show when she [M.] picked up her last paycheck; [t]he records don't even show her termination date . . . the victim may in fact have been at work that day . . . [w]e don't know because this woman, who came in and testified, wasn't there with the company at that point in time, and doesn't know."
B. Summations
The Assistant State's attorney, in her opening summation, commented on the following evidentiary matters which are germane to the instant petition. She referred to Officer Fox's testimony that the victim told him she had been drinking, that he noticed the smell of alcohol on her breath, but that she did not appear to the officer to be drunk. The Assistant State's Attorney also stated to the jury that the parties had stipulated that no readable prints were found on the screwdriver; she further referred to Officer Rodick's testimony that the likelihood of getting a readable print would not have been good because of the screwdriver's small and convoluted upper surface, that much would depend on the manner in which the implement was held, and also, on the number of people who had handled it after the incident. Also mentioned by the prosecutor was the fact that Officer Malozzi searched the area of the assault and found the victim's lost earring. The attorney emphasized the victim's identification on November 12, 1996 of defendant as her attacker from the photo array of eight light-skinned black males, all similar in appearance; it was pointed out that M., upon seeing the defendant's photo in the array (photo #7), began to tremble and cry.
With regard to the hair analysis evidence, the Assistant State's Attorney argued:
The victim's clothes that were taken from her [at the hospital] are sent to the lab and they are processed for hair. Hairs from the defendant are also sent to the lab for comparison. Three Negroid pubic hairs are found on the victim's clothing and are compared with the defendant's pubic hairs. The examiner's opinion is that the hairs are microscopically similar.
Hair comparison analysis does not allow you to state that it is an exact match. So, the conclusion that is drawn by the examiner is that they are microscopically similar.
The defense attorney, in her summation, stressed the discrepancy between the height description given to Officer Fox by the victim (5' 7") inches, and defendant's actual height (5' 11 3/4"), as viewed by the jury during the in-court measurement. Similarly, she questioned the victim's description of defendant's having "a lot of freckles across the nose [and] under his eyes," in light of the jury's close-up view of defendant standing before the jury box. Counsel also commented that she (M.) never described for the police the perpetrator's eyes, nose, or facial structure, yet she indicated that upon viewing the array, she recognized defendant immediately because of those facial features. The attorney stressed, with respect to the identification, that the victim had been at the bar for approximately four hours, had been drinking, and, when Officer Fox observed her, he smelled alcohol on her breath, and she appeared to have been drinking. Further, relevant to the identification, the defense pointed out that when the two officers went to Martin Park on a subsequent night to ascertain at what distances facial features could be observed, there was no indication in the evidence that it was a rainy night or that they were wearing hats with bills; furthermore, the defense argued, the ability to recognize the features of your partner would be "entirely different" from one's "ability to see the details of total strangers."
The defense attorney referred to certain inconsistencies, and/or omissions, by M. in verbal statements to Officer Fox and the written statement to Officer Malozzi. With reference to the screwdriver, it was argued that based on the cross-examination of Officer Rodick, it would be expected that there would be fingerprints, considering the manner in which one would ordinarily hold such an implement.
One such inconsistency stressed by the defense was that M. had not told Officer Fox that after the sexual assault, defendant continued to hold her by the arm forcing her along the path toward Burnside Avenue; rather, she stated that after the incident, defendant got up and ran away. Additionally, it was pointed out that the verbal statement to Officer Fox did not include any reference to the fact that defendant, for several minutes, had been reaching into his pockets and looking around at the ground for his keys.
Concerning the hair analysis evidence, the defense attorney argued to the jury, as follows:
The hair evidence, I will just talk about briefly. I'd ask you to recall the demeanor of the witness on the stand. Yes, he's been doing it by eyeballing it and not measuring anything. And the reason why I put in that Forensic handbook, which he seems to think is no big deal, is the one important thing that it talks about is how important it is to measure.
This is a witness who guesses. He guesses at the amount of hair analysis he's done. You know, can we credit anything that he says with his regard to his work? He appeared to be a little bit defensive. I don't think he wanted to be questioned or challenged at all with regard to his work.
He didn't follow his own procedure, which indicates that you should put in your reports that this procedure is not something by which you can identify someone. There's no way you can identify someone by hair analysis. You can't even say whether the hair came from a man or woman.
And just referring to the Forensic handbook, which you'll have in evidence, and I invite you to look through that when you go back into the jury deliberation room, there's a discussion. And I'm looking at — around pages two hundred to two hundred and eight. About the specific measurement required. That you should measure diameter. You should note diameter. You should record diameter. Note and record changes that you see in the hair shafts because hair shafts can change within themselves.
And of course, as you remember, this witness did not note very much at all. And testified that in fact he couldn't really testify to — to many things without having his microscope and the hair — the — at issue in front of him.
But, at page two hundred, it does indicate that characteristics, with regard to racial origin, the things that you look at to determine the racial origin of a hair, apply normally — or primarily, rather, to head hair. That it's not a foolproof procedure. That racial mixtures, limited sample size, and poorly defined characteristics — remember, he has his own definition for the characteristics — may make it difficult, if not impossible, for the hair examiner to conclusively identify a hair's racial origin.
So, with regard to that testimony, I would submit that that is just not at all probative, not reliable, not something that you should consider because it doesn't tell us much at all. He can't even say what percentage of the black population would have similar hair as those three pubic hairs.
And, of course, we don't know where the hair came from. We don't know who she may have had contact with. Who may have placed that hair there. Even her own hair wasn't tested.
In her rebuttal argument, the Assistant State's Attorney addressed the height discrepancy emphasizing that when the victim observed the defendant in the Martin Park Field, they were struggling, he was not standing on a flat surface as in the courtroom demonstration, the path she was dragged down sloped downward, and she could not observe his height at the time he was over her with his knees pinning down her arms. And, also, the victim had indicated that as he walked her out of the park, she was focusing on his face, because "she wanted to remember it." The Assistant State's Attorney reminded the jury that the defense did not mention the victim's weight estimate, which description was quite accurate.
The attorney reminded the jury that with regard to freckles, the defendant stood in front of the jury box where his face could be closely observed. She pointed out that the photo in the array was a head shot, and only a one-month-old photo; it was his face which the victim recognized, based not on freckles, which were unobservable in photo #7, but on the shape and structure of his face — his facial features. As to the victim's opportunity to observe her attacker, the Assistant State's Attorney stressed that there was evidence of adequate ambient lighting from Burnside Avenue, he was on top of the victim for several minutes during which time she could observe his face at close range, and that the victim got an even closer look at his face while he was "allegedly looking for his keys," and, while he was walking her out of the park. It was further emphasized that it was a quite recent photo of the defendant, that the identification was made only four days after the incident, and that there was no doubt or uncertainty by the victim when she selected defendant's photo, or when she identified him in court.
In her summation, the attorney suggested that defendant was actually looking for the screwdriver which the victim had secreted in the sleeve of her jacket, not for his keys.
Very early on in her rebuttal, the Assistant State's Attorney responded to defense comments regarding the hair analysis evidence. She reminded the jury of Mr. Settachatgul's twenty-three years of experience in forensic hair analysis, and his testimony that his laboratory used the pattern recognition method of hair comparison, not the measurement method referred to in the article placed in evidence by the defense; further, that the methodology used by the Connecticut State Police Laboratory was the procedure employed by most forensic hair examiners. The attorney commented that the hairs had observable characteristics under the microscope. In comparing the hairs from the victim's clothing with those of the defendant, they appeared to be the same color, both had an abundance of fuci, and both exhibited the shadow of twisting, indicative of pubic hair. The attorney pointed out that Mr. Settachatgul testified that the defense could have asked to have another examiner review his conclusion, and/or could have had their own comparison expert view the hair specimens. Additionally, the State's Attorney referred to the Settachatgul testimony that statistics are not done in the comparison field, since the only conclusion that can be drawn is similar or dissimilar characteristics, not the percentage of the population which shares those hair characteristics. She told the jury:
. . . this is not conclusive evidence. I agree with the defense to that degree. It is not conclusive. But it is supportive of the victim's I.D. So keep that in mind."
The Assistant State's Attorney, in her rebutting comments, argued to the jury that although the hair comparison evidence was not conclusive, the Negroid origin of the unknown pubic hairs, and their similarity with defendant's pubic hairs, were significant with respect to establishing defendant's involvement in this crime. She told the jury:
. . . keep in mind that these were the only three Negroid hairs found on the victim's clothes. And, remember, she testified she did not come in contact with any other black individuals on that evening. And that her jeans were clean when she put them on that night . . .
Mr. Settachatgul testified that these are hairs that fell out. They did not have their root attached. Is it not a reasonable inference that, when her attacker was on top of her, and his pubic hairs fell out, that they landed on the nearest surface, the surface that he was sitting on? The victim, and the victim's jeans, and the victim's underwear. You are allowed to draw reasonable inferences, ladies and gentlemen. The judge will tell you that.
And is it also not a reasonable inference that, when she stood up and he was helping her do her pants, or trying to do her pants, and she did her pants, that one of those hairs went down the leg of her jeans and ended up in her socks? Ask yourself if that's not also a reasonable inference.
And think about it, ladies and gentlemen. This was three Negroid pubic hairs, all similar to the defendant's on three separate items of clothing. It's not a case where one was similar and two were not. They are all hairs that are consistent with the defendant's. And these are the only Negroid hairs on her clothing . . .
And two of the items the hairs were found on were covered by her jeans. Her underpants and her socks . . . So, I submit to you it's far less likely that those [pubic] hairs ended up on her by chance . . .
And, with regard to the photo of the hair [State's Exhibit #11], you don't have to be an expert hair examiner with twenty-three years experience to look at those two hairs and know that those two hairs are similar. You can recognize the similarities yourself. Just like the victim, in looking at this photo, was able to recognize that this is the defendant's face, the face of her attacker.
C. Charge
In the court's instructions, following the summations of counsel, the jury was told that the State had the entire burden of proof, and that the burden was proof beyond a reasonable doubt; the standard explanation of those terms was, of course, included in the jury charge. Regarding expert testimony, the jury was instructed that the same considerations of credibility are to be applied to an expert witness as are applied to any other witness; that the jury should consider the expert's education, experience, and ability in the particular discipline about which he testified; that the proof or lack of proof should be considered, along with the completeness or lack of completeness of the facts considered by the expert in forming his opinion or conclusion; and, that while the expert testimony must be considered by the jury, it is not binding on the jury, and is subject to being disregarded, in whole or in part, depending on what weight, if any, the jury determines it merits. With respect to identification the jury was instructed that the State had the burden of proving, beyond a reasonable doubt, that defendant was the perpetrator of the crime. The jury was instructed that the value of identification testimony is dependent on the opportunity and ability of the witness to observe the offender at the time of the event and make an accurate identification later. The court concluded its identification instruction: "You must be satisfied beyond a reasonable doubt of the identity of the defendant as the one who committed the crime, or you must find him not guilty."
D. Deliberations
The case went to the jury at 3:16 p.m., on Wednesday, November 5, 1997. Verdicts of guilty on both counts were returned on Monday, November 10, 1997. On November 5, the jury requested by note to "[r]ehear testimony of victim" on "Thursday, a.m." On November 6, at 10:20 a.m. (prior to the replay of the victim's testimony), another note was received from the jury; it read:
When hearing the play-back, can the tape be stopped and replayed? Can we take notes in the courtroom as the tape is being played? Can we receive the typed report of Officer Fox and Malozzi [sic]? And can we hear how the photo array was developed and selected (processed) ?
The jury was advised by the court, after conferring with counsel, that they could take notes during the replay, that the stopping and replaying of the tape was not feasible, but that they could request that the testimony, or any portion thereof, be replayed as many times as they wished, and that the police report would not be furnished since it was not admitted as a full exhibit. Regarding how the photo array was "developed and selected," the jury was told that any evidence pertaining thereto was primarily included in Officer Malozzi's testimony which could be replayed.
Following the full replay of M.'s testimony, another note was received from the jury on November 6, at 3:25 p.m., requesting replays of the entire testimony of both Officer Fox and Officer Malozzi. The replays of the officers' testimony were completed the morning of Friday, November 7. Before the replay of Officer Malozzi's testimony on Friday morning, the jury sent out another note at 10:00 a.m. reading: "After Officer Malozzi, please re-read The Court's instructions as pertains to reasonable doubt." The monitor then proceeded with the replay of Officer Malozzi's testimony and I again instructed on reasonable doubt. Thereafter, the jury resumed its deliberations and, at 4:45 p.m., on November 7, sent out a note stating: "We would like to come back Monday." At 11:30 am., Monday, November 10, the jury, by note, informed the court that verdicts had been reached, which verdicts were thereafter accepted on the court record.
At oral arguments on this petition, counsel stated that "the jury was out for four days." The record reflects that the jury actually deliberated for approximately two and one-half days (given the intervening weekend), and much of that time was consumed by replays.
III . CIVIL TRIAL — INSTANT PETITION
The trial on this petition was, indeed, quite brief. The petitioner presented no testimony; however, a number of petitioner's exhibits were marked: Exhibits #1 and #2 are each three-page reports of Mitotyping Technologies, LLC regarding separate mtDNA analyses, dated May 9, 2002 and June 3, 2002, respectively; Exhibits #3 through #7 are transcripts of the entire trial (voir dire through acceptance of verdicts, including the court's charge and the Porter hearing). The court also took judicial notice of the official court file in the criminal case. The respondent presented the testimony of Dr. Terry Melton, President and CEO of Mitotyping Technologies. After the admission of her Curriculum Vitae (respondent's Exhibit A), and the establishment of her extensive qualifications, Dr. Melton testified that mtDNA testing is a form of analysis which is often applied to specimens such as skeletal remains and rootless hair samples which are not susceptible to standard nuclear DNA testing. Such testing is used to exclude individuals as the contributors of samples because it is possible to obtain a DNA type; it is a mitochondrial DNA profile, which is a DNA sequence. Thus, this method of analysis can eliminate an individual as the contributor of samples. Its primary difference from nuclear DNA testing is that mtDNA is not a unique identifier; unlike nuclear DNA which is found at the center of the human cell, and which is inherited from both parents, only maternal lineage exhibits the same mitochondrial profile.
MtDNA hair analysis evidence, of course, has been accepted and admitted in Connecticut following a Porter evaluation: State v. Pappas, 256 Conn. 854 (2001) ("After carefully reviewing the record, we conclude that the trial court properly admitted the expert testimony regarding mtDNA evidence"). In Pappas, the mtDNA evidence was offered by the State to inculpate, i.e., to include the accused as a possible contributor of two strands of hair found on a discarded garment recovered along the flight path of the bank robber.
With regard to Dr. Terry Melton, her qualifications are set forth in detail in the three-page CV admitted as respondent's Exhibit A. Dr. Melton has qualified in a number of other jurisdictions, including New York. In People v. Klinger, 185 Misc.2d 574, 713 N.Y.S.2d 823 (2000), which considered the admission of mtDNA evidence using a Frye standard, Dr. Melton's qualifications were set forth in detail, and there was discussion of the controls in place at the Mitotyping lab to address contamination and heteroplasmy (presence of two or more mtDNA sequences in an individual). See also: State v. Juan Sierra-Omini, Case No. 00 CV 3800, District Court, City and County of Denver, Colorado, (2001) (citing Klinger and Pappas). In Sierra-Omini, Dr. Melton's qualifications were summarized, generally consistent with the CV in evidence here, as follows:
The People seek to qualify Dr. Terry Melton as an expert in the field of mitochondrial DNA analysis . . . Dr. Melton also testified . . . in other cases nation-wide. See, e.g., Klinger v. New York, 713 N.Y.S.2d . 823 (2000). Dr. Melton has been working in the field of mitochondrial DNA (mtDNA) analysis since 1991, and is employed by Mitotyping Technologies, L.L.C., a commercial laboratory in Pennsylvania which conducts mtDNA analysis. She has a doctorate from Penn State University in genetics. She is a member of Sigma Xi, a research society, and a provisional member of the Academy of Forensic Sciences. Dr. Melton has published at least 11 articles in the area of mtDNA and has published numerous papers on the subject which were subject to peer review. The laboratory of which Dr. Melton is employed exclusively performs mtDNA analysis, and Dr. Melton has performed hundreds of DNA analysis and thousands of PCR amplifications. She has also testified as an expert in the field of genetics, PCR, and mtDNA in the state and federal courts in at least eight states . . .
As set forth in Pappas, mitochondrial DNA is to be distinguished from nuclear DNA. Within a human cell, DNA is located in either of two places, the nucleus or the mitochondria. Nuclear DNA, which is found at the very center of the cell, is inherited from both parents in the form of chromosomes. MtDNA is found outside the nucleus of the cell in the mitochondria, which are organelle within the cell's cytoplasm surrounding the nucleus. MtDNA analysis can be used on materials without a nucleus, such as a piece of hair without a root segment. Therefore, mtDNA provides forensic scientists with an alternative procedure when, as in the instant case, the unknown hair specimen (s) cannot be analyzed by nuclear DNA testing. Nuclear DNA consists of approximately three billion base pairs of nucleotides, as well as many discrete markers, which may be compared to establish a positive match between DNA samples; in the smaller, circular mtDNA, on the other hand, there are only sixteen and a half thousand nucleotide bases. Accordingly, the probability of a random match becomes much higher between mtDNA samples than between nuclear DNA samples. Therefore, mtDNA is significantly less probative of identity than is nuclear DNA; mtDNA is not a unique identifier. In conducting the mtDNA analysis, the sequence of the known and unknown samples are compared; if there is not perfect symmetry, the known sample is excluded as the source of the unknown. However, if there is a common base at every position, then it can be concluded that the contributor of the known sample cannot be excluded as a contributor of the unknown sample (hair). Through the mtDNA comparative analysis, then, a known sample may be excluded or included as the possible source of the unknown sample; the sample is included if the data (sequence) reveals an exact match. And, if it is included, a statistical analysis indicates what percentage of the population would have the same sequence.
See United States v. Coleman, 202 F. Sup.2d 962 (E.D.Mo. 2002); State v. Pappas, supra; State v. Juan Sierra-Omini, supra; People v. Johnson, SCD 155728, Superior Court, State of California, County of San Diego, November 29, 2001 ( Frye standard; citing Pappas); State v. Hammons, I.D. No. 9809019760, Superior Court, State of Delaware, New Castle County, March 28, 2002 ( Daubert standard; citing Pappas).
In her brief testimony, Dr. Melton testified, consistent with the 5/9/02 report, entered in evidence as petitioner's Exhibit #1, that her laboratory was requested to develop mtDNA profiles from the three questioned hairs in evidence at the criminal trial and to compare them to the mtDNA profile of petitioner to determine if Mark Reid could be excluded as the contributor of those hairs. The mtDNA sequences for the three unknown or questioned hairs did match one another, but did not match the sequence of 2212K1 (Mark Reid). Therefore, petitioner is excluded as the contributor of the three questioned hairs, all of which could have come from the same unknown individual.
Dr. Melton further testified, consistent with the 6/3/02 report, petitioner's Exhibit #2, that Mitotyping Technologies received from the Connecticut Forensic Science Lab buccal sample swabs taken from the victim, M., which sample was designated 2212K2. Mitotyping was requested to develop an mtDNA profile from the known buccal swab (s) to ascertain if M. could be excluded as the contributor of the unknown hairs. Dr. Melton testified her lab could not exclude the unknown hairs as coming from the victim. As explained in Exhibit #2, the mtDNA sequences of 2212Q1, 2212Q2, and 2212Q3, the questioned pubic hairs, match the sequence of 2212K2, the know swab, and accordingly, M. cannot be excluded as the contributor of the three questioned hairs. That is, the mtDNA sequence that Mitotyping observed in the three questioned or unknown hairs that were tested as set forth in the May 9, 2002 report (Exhibit #1) was "a match to or exactly the same" as the mtDNA sequence in 2212K2, the saliva sample (swab) from M., as set forth in Exhibit #2.
Exhibit 2, Dr. Melton's 6/3/02 report, states that a search was made of the SWCDAM data base of human mtDNA sequences, which database is maintained by the FBI (DNA Unit II — mtDNA unit), for the sequence observed in 2212Q1, Q2, and Q3 and 2212K2. It was determined that the sequence had never been seen in the database, which at the time of the search contained 4,839 human mtDNA sequences of North American forensic significance. In other words, M.'s DNA type, Dr. Melton explained, has not previously been observed in the database; therefore, upon engaging in "a very simple statistical calculation, which is based on some sampling theory," Dr. Melton concluded that 99.94% of North Americans would not be expected to have this profile." Or, conversely, "no more than six one-hundredths of one percent of North Americans would be expected to have this type." Therefore, 99.94% of the population of North America would be excluded as the source of this particular DNA sequence.
Dr. Melton stated that while microscopic hair analysis and mtDNA testing are "complimentary" or "used in conjunction," mtDNA testing is "more discriminating." Microscopic hair analysis looks at the physical characteristics of the sample, while mtDNA testing considers its genetic characteristics.
From all of the aforesaid, it seems that petitioner is excluded as the contributor of the three pubic hairs recovered from M.'s clothing, and admitted into evidence at the criminal trial; further, that based on this evidence, it would appear likely that the three pubic hairs were those of the victim. On cross-examination, however, Dr. Melton stated that neither the gender nor the race of a possible contributor could be determined by mtDNA testing.
Most of the brief civil trial consisted of the final arguments of counsel. Petitioner maintained that the mtDNA testing evidence would, quite likely, result in a different outcome on retrial. Petitioner's attorney characterized this criminal prosecution as primarily a one-witness case based almost entirely on the victim's rendition of what had occurred, and her identification of the defendant. He questioned the reliability of the identification, noting that the victim had been drinking for some time prior to the incident, and emphasizing the time of, the place of, and the circumstances surrounding, the attack. It was observed that there was no fingerprint evidence on the screwdriver, and no rape kit or other scientific evidence developed from the victim as she left the hospital before being examined. Thus, petitioner argued, the only forensic evidence tending to corroborate the victim's identification was the microscopic hair comparison which would not be before the jury at a retrial since the mtDNA excludes Mark Reid as the contributor of the three unknown pubic hairs. Therefore, at a new trial, the victim's identification would stand alone, without the buttressing effect of Mr. Settachatgul's testimony of similarities between the pubic hair from M.'s clothing and those obtained from defendant. It was further argued that the composition of the photo array was based on a somewhat general description by M. of her attacker, that the jury while deliberating requested information regarding how the array was "developed and selected," and that the Assistant State's Attorney, in her rebuttal summation, relied quite extensively on the Settachatgul testimony to, in petitioner's words, "bolster" the identification. Observing that at a new trial, the State's case would stand essentially on the identification alone, without forensic corroboration, petitioner argued that the outcome of a new trial would likely be different, particularly with the mtDNA evidence establishing that any pubic hairs on the victim's clothing were not those of Mark Reid.
Petitioner's attorney emphasized that the case had gone to the jury with Mr. Settachatgul's expert testimony that the unknown pubic hairs were Negroid pubic hairs similar to the pubic hairs of defendant. Yet, the victim is white, the mtDNA cannot exclude her as the contributor of those hairs, and defendant is excluded as the contributor of those pubic hairs. Mr. Settachatgul testified "unequivocally that these [unknown pubic hairs] were Negroid pubic hairs."
Respondent, at the civil trial, emphasized that it was made clear to the jury that comparative hair analysis is not an exact science, and that neither the testimony nor the summations ever suggested an exact match, but rather, merely a similarity. The State's counsel argued that the Settachatgul evidence came in with an inherent disclaimer that it had limitations and was not conclusive; and, that that point was brought out clearly and repeatedly in the testimony of the hair examiner and in the closing arguments by both sides. The attorney argued that the new mtDNA evidence is not evidence which excludes petitioner as the perpetrator of the crime, but merely excludes him as a source of the unknown pubic hairs. Further, the State maintained that it is not evidence which would establish the existence of another suspect, or evidence that would legally disqualify a crucial State's witness, or establish a legal defense to the crime. It was further pointed out that the closing arguments of counsel at the criminal trial were not evidence, and the jury was so advised; also, that the remarks of the Assistant State's Attorney were simply responsive to the comments made by defense counsel on the hair analysis evidence, and moreover, arguments of counsel are normally not a basis for the granting of a new trial petition. Essentially, it was, and is, respondent's position that the jury heard all of the circumstances surrounding the identification of the defendant as the perpetrator, the jury was instructed that to convict it must find the identification proven beyond a reasonable doubt, and that in order to find the petitioner guilty, the jury had to accept the testimony of the victim — the identification. Since the jury was informed, repeatedly, that the comparative hair analysis evidence was not conclusive, the attorney stated it now would be entirely speculative to undertake to determine what weight, if any, the jury accorded the Settachatgul testimony. In returning its guilty verdicts, the jury accepted the victim's identification; therefore, respondent argued, since the mtDNA evidence does not exclude Mark Reid as the perpetrator, but only as the contributor of the unknown pubic hairs, and, since the mtDNA evidence shows that the victim herself may well have been the source of those hairs, it is not likely that the new evidence would effectuate a different result — that is, according to respondents, the new evidence is not such as would justify, under established precedents, the granting of a new trial and the disrupting of the finality of these verdicts.
IV. LEGAL STANDARD
This petition for a new trial is brought pursuant to General Statutes Section 52-270 and Practice Book Section 42-55. The latter provides: "A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes Section 52-270." The statute reads: "The Superior Court may grant a new trial of any action that may come before it, for . . . the discovery of new evidence . . ." At trial, the parties were in substantial agreement that the decision on this petition is governed by the standard set forth in Asherman v. State, 202 Conn. 429, 434 (1987):
The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.
As made clear in Asherman, and other precedents, this is a "strict standard" and is "meant to effectuate the underlying `equitable principle that once a judgment is rendered it is to be considered final' and should not be disturbed . . . except for a compelling reason." Id.
The standard articulated in Asherman has roots that can be traced back to certain of Connecticut's earliest precedents; in Hamlin v. State, 48 Conn. 92, 93-94 (1880), the Connecticut Supreme Court "articulated the test in terms virtually identical to that . . . later adopted in Asherman." Shabazz v. State, 259 Conn. 811, 821 (2002) (cases cited therein). See also Lombardo v. State, 172 Conn. 385, 391 (1977); Taborsky v. State, 142 Conn. 619, 623 (1955); Smith v. State, 141 Conn. 202, 208 (1954). A petition for a new trial is a civil action; accordingly, the petitioner's burden of proof is a preponderance of the evidence. Lombardo v. State, supra at p. 390-91. A petition for a new trial should never be granted except on "substantial grounds." Shabazz v. State, supra at p. 821-22; Lombardo v. State, supra at p. 390-91. Indeed, new trials are granted "only with great caution . . . in the most extraordinary circumstances." United States v. Biaggi, 823 F. Sup. 1151, 1156 (S.D.N.Y. 1993), aff'd., 48 F.3d 1213 (2d Cir. 1994).
USCS Fed. Rules Crim.Proc.R. 33 reads: ". . . the court may vacate any judgment and grant a new trial if the interest of justice so requires . . ." In Biaggi, the Court (Motley, J.) stated: "A district court should only grant Rule 33 motions in the most extraordinary of circumstances, i.e., when the new evidence would probably lead to an acquittal." In Connecticut, as early as 1836, our Supreme Court observed: "It hardly need be remarked, that a petition for a new trial . . . will never be granted but upon substantial, and not merely formal grounds . . ." Lester v. The State, 11 Conn. 415, 418 (1836).
V. APPLICATION OF ASHERMAN STANDARD A. CT Page 6768
The first requirement under Asherman is that the proffered evidence be newly discovered such that it could not have been discovered earlier by the exercise of due diligence. The petition alleges that the State stipulated, prior to the filing of this petition, that the mtDNA results were newly discovered; respondent's answer admits this allegation. However, the petition also alleges, as a ground for the petition, that the mtDNA evidence could not have been discovered earlier by the exercise of due diligence; that allegation is denied. At trial, the Assistant State's Attorney indicated that she stipulated just to "newly discovered," not to the exercise of due diligence by the defense in obtaining the mtDNA testing. With regard to this Asherman requirement, very little substantiation was presented that the mtDNA evidence, the basis for this new trial petition, could not have been obtained through due diligence for the criminal trial. Petitioner merely relied on the testimony of Mr. Settachatgul during the Porter hearing; the germane portions of that testimony disclosed, in substance, that it was possible to conduct standard DNA analysis on hair at the Connecticut Forensic Laboratory, that such standard DNA analysis could not be conducted on the questioned hairs because they were rootless, that mtDNA testing was not available at the Connecticut Lab, that such hair analysis was "still very new," and that in Mr. Settachatgul's view, mtDNA testing was not yet reliable as it was in the beginning stages of research. Before the jury, Mr. Settachatgul maintained his contention that mtDNA hair analysis was yet not reliable, and that the FBI lab was "experimenting with DNA testing on hair shaft." However, he stated that had the defense attorney asked to have the hair samples sent to the FBI lab, he would have done so.
This information was brought out on cross-examination of the expert:
Q Okay . . . you testified . . . that one of the other methods of analyzing hair is DNA. Is that correct?
A Right.
Q And —
A That's one of the few.
Q One of the few.
A Right.
Q And it is possible to analyze hair through the use of DNA, but that cannot be done at your lab. Is that correct?
A No. We — we can do that in our lab.
Q Oh, you can do it in your lab?
A But, in this case, we cannot do it because there no — no root, no cell attached to the root.
Q Okay. But, it is possible to conduct it on this hair with a different procedure. Is it right?
A They have a procedure they call that monoconrail (phonetic). I don't know how exactly to spell it.
Q Okay.
A Because the procedure's very — still very new. And it's not really reliable yet. They not — they not — what they do is that they grau (phonetic) up the — the hair, the whole hair.
Q Okay. But that procedure — and that's for hair without root. Is that correct?
A Right.
Q If I understand it. And that procedure cannot be done at your lab, if I understood you.
A Right.
A And I wanted to add there too though. Like I told you before, the procedure is not reliable yet.
Q The DNA procedure on rootless hair.
A Right.
Q Okay. And in seven words or less, what — why is it not reliable?
A Because the procedure have not be study. And it's still like what I tell you, that probably the sample is still — still not in the — in the research.
Q Beginning stages of research?
A Yes.
In such regard, Mr. Settachatgul testified as follows:
Q And is the F.B.I. — F.B.I. lab presently doing or experimenting with DNA testing on hair shafts?
A Right.
Q And you indicated, I believe, that your opinion was that's not reliable?
A Right.
Q At this — at this point in time.
A At this moment.
Q If the defense attorney had asked to have the hairs sent to the F.B.I. lab, would you have done so?
A Sure.
Q And if the defense attorney had asked to have the — your work reviewed by another examiner, would you have done so?
A Yes, Ma'am.
Q And would you have allowed a defense expert to review your work?
A Sure.
Q And was that requested?
A No.
It would appear to court that there exists a question as to whether petitioner has established, by the required burden, due diligence in procuring mtDNA testing of the unknown hair samples, particularly in view of Mr. Settachatgul's testimony that, upon request, the samples would have been submitted to the FBI laboratory. At the trial (civil), counsel, as stated, while addressing the due diligence requirement, referred primarily to the opinion of Mr. Settachatgul that he believed the mtDNA testing in 1997 by the FBI to be unreliable. This case was tried in late 1997; information set forth in certain cases previously cited indicates that mtDNA research began at the FBI in 1992, and testing commenced in 1996. MtDNA analysis was first implemented for forensic purposes by the FBI in June of 1996. People v. Klinger, supra; State v. Hammons, supra; State v. Sierra-Omini, supra. The Klinger opinion states that as early as 1989, a scientist employed by the FBI for seventeen years described mtDNA as a possible genetic tool; in 1993, that expert co-wrote one of the first guidelines for the use of mtDNA sequencing in forensic science; and in 1995, he co-authored a peer review journal describing the procedure developed by the FBI for the extraction, amplification and sequencing of mtDNA from human hair shafts. Additionally, in 1995, a peer review article was co-authored by that expert on the validation of those procedures for their application to case work. Within a few years thereafter, in certain cases in which the criminal trials either preceded petitioner's, or were apparently proximate in time thereto, evidence of mtDNA hair analysis performed at the FBI lab was admitted to exclude (and to not exclude) individuals as possible donors of questioned hair samples. State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231 (1999), writ improvidently allowed, 352 N.C. 669, 535 S.E.2d 33 (2000). See also: State v. Council, 335 S.C. 1, 515 S.E.2d 508, cert. denied, 528 U.S. 1050, 145 L.Ed.2d 489, 120 S.Ct. 588 (1999) (cited in Underwood).
Petitioner's attorney argued that ". . . it could not have been discovered earlier by the exercise of due diligence . . . the State's own expert testified that at the time of trial . . . this mitochondrial DNA testing was not considered reliable . . . that the FBI was beginning to perform mitochondrial DNA but it was not reliable at that time . . . not accepted within the scientific community." In presenting this argument, reference was made to a legal memorandum filed by the defense, post-verdict, in the criminal court file. A review of that file discloses that the memorandum was filed on July 28, 2001 in connection with what had transpired at a July 18th hearing on the defendant's post-verdict motion for DNA testing. That memorandum makes reference to Mr. Settachatgul's reservations concerning the reliability of mtDNA testing, and a representation by a member of the State's Attorneys Office at a "pre-trial discussion" on August 20, 1997 that "there existed no evidence in this case for DNA testing." The memorandum states that at the July 18, 2001 hearing, the State maintained that "the defense `strategically' chose not to request DNA testing at the time of trial."
In Underwood, the judgment of conviction appealed from was entered July 25, 1997. At that trial, Dr. DiZinno, chief of the FBI's DNA analysis unit number 2, testified that based on mtDNA testing, it was his opinion that the murder victim could not be excluded as a possible source of hair specimens found in the trunk mat of the defendant's vehicle. In determining the admissibility of new scientific evidence, and the reliability thereof, North Carolina did not adhere to a strict Frye standard, but adopted reliability factors substantially similar to Daubert.
In Council, Dr. DiZinno, of the FBI, testified that the mtDNA hair analysis excluded a suspect as the one who deposited hair samples found at the crime scene. Further, that the mtDNA analysis could not exclude the defendant/appellant as the depositor of those hairs.
Also: State v. Scott, 33 S.W.3d 746 (Tenn. 2000) (appeal from guilty verdicts returned April 23, 1997; mtDNA testing by FBI indicating that the defendant/appellant was the probable donor of hair removed from the victim; reversed, and new trial ordered, on other grounds: denial of defense request for a court-appointed expert, and, failure of the State to establish proper chain of custody for the hairs taken from the victim).
Notwithstanding the above, this court is disposed to consider the first Asherman requirement satisfied. The State has admitted the newly discovered allegation in this petition, and, has acknowledged an earlier stipulation that the mtDNA evidence was newly discovered. Given Asherman's express characterization of "newly discovered" — "such that it could not have been discovered . . ." — it would seem that such stipulation would, or should, be understood as encompassing "due diligence." Furthermore, the State's own expert's assessment of the reliability of mtDNA evidence in 1997 is entitled to some weight and cannot be dismissed; additionally, the State, at trial, neither argued the absence of due diligence, nor cited any authorities or treatises specifically dealing with the availability and/or reliability of such testing at or before the time of petitioner's criminal trial. And, finally, as is gleaned from Pappas, at the time of Mark Reid's criminal trial, the admissibility of such evidence (mtDNA) under a Porter/Daubert standard had not yet been considered by our Supreme Court.
B.
The second Asherman prong is that the newly discovered evidence would be material on retrial. Evidence is material when it involves a central issue in the case and is not collateral. Adams v. State, 259 Conn. 831, 836 (2002). Here, the mtDNA evidence is material because it directly relates to, and tends to dispute, evidence presented at the trial on a central issue — identification, i.e. defendant's culpability respecting this crime. The paramount issue at the criminal trial was the identity of defendant as the perpetrator. The microscopic hair comparison testimony of Mr. Settachatgul was offered as circumstantial evidence that petitioner committed the sexual assault because Negroid pubic hairs, having characteristics similar to his, were found on the victim's clothing. No evidence concerning the mtDNA makeup of the three pubic hairs was presented at trial; the mtDNA evidence now available tends to refute trial evidence that the unknown pubic hairs are "substantially similar to the hair of the defendant." The mtDNA evidence, along with the trial evidence that the hair recovered was from someone of Negroid heritage, may tend to strengthen the defense claim that someone other than the defendant committed this crime. The newly discovered evidence excluding Mark Reid as a depositor of the unknown hair samples is relevant to the identification of petitioner, is not collateral, and under Pappas likely would be admissible at a new trial. Therefore, it is concluded that the mtDNA evidence is material.
C.
The third requirement is that the newly discovered evidence is not merely cumulative. "By cumulative evidence is meant additional evidence of the same general character, to the same fact or point which was the subject of proof before." Waller v. Graves, 20 Conn. 305, 310 (1850). It is evidence of the "very same fact and the same attending circumstances, testified to upon the former trial, and . . . of the very same nature as that before offered in proof of that same fact.'" Reilly v. State, 32 Conn. Sup. 349, 355 (1976), citing Apter v. Jordan, 94 Conn. 139, 141-42 (1919). "[E]vidence which brings to light some new and independent truth of a different character, although it tends to prove the same proposition or ground of claim before insisted on, is not cumulative within the true meaning of the rule." Anderson v. State, 43 Conn. 514, 519 (1876); Waller v. Graves, supra; Reilly v. State, supra. "Moreover, evidence merely cumulative, if it . . . [has] the effect to render clear and positive that which was before equivocal and uncertain, will justify the granting of a new trial." Anderson v. State, supra at p. 519. The mtDNA evidence is not merely cumulative because it is the only evidence tending to contradict testimony of the State's expert that the unknown pubic hairs were characteristically similar to petitioner's hair.
D.
The final, and dispositive, Asherman component is that the newly discovered evidence is likely to produce a different result in a new trial. "In determining whether a new trial should be granted `the primary test is whether an injustice has been done and whether it is probable that at a new trial a different result would be reached.'" Reilly v. State, supra at p. 356; also: Shabazz v. State, supra at p. 821. The Asherman language "likely to produce a different result," as well as the trial court's proper role in applying that language, was subject to clarification in Shabazz v. State, supra, and Adams v. State, supra. Both cases indicate that "likely to produce a different result" rises to the somewhat higher level of "probably would [not could] yield a different result." (Emphasis added.) This is the same standard referred to in Morant v. State, 68 Conn. App. 137, 149-50 (2002), quoting from State v. Roberson, 62 Conn. App. 422, 427 (2001): "[W]hether a new trial should be granted does not turn on whether the evidence is such that the jury could extend credibility to it . . . The plaintiff must persuade the court that the new evidence . . . will probably, not merely possibly, result in a different verdict at a new trial . . . It is not sufficient for him to bring in new evidence from which a jury could find him not guilty . . . it must be evidence which persuades the judge that a jury would find him not guilty." (Emphasis in original.) In Morant, the Court affirmed the trial judge's denial of the petition on several grounds including an assessment that it was "not probable" that the alibi testimony " would result in a different verdict at a new trial." (Emphasis added.)
The Supreme Court decisions in Shabazz and Adams were released on the same date, March 26, 2002. Morant v. State was released by the Appellate Court on February 12, 2002. At the trial on this petition, the Assistant State's Attorney relied on Morant as establishing the requirement that the new evidence would, not could, result in a not guilty verdict at a new trial. Reading these cases, and those that preceded them, it is clear that the test is whether the new evidence probably would produce a different result upon retrial.
It is virtually axiomatic that the court, in reaching its determination on a petition or a new trial, must always consider the newly discovered evidence in the context of the evidence presented at the original trial. Adams v. State, supra at p. 838; Shabazz v. State, supra at p. 827; Reilly v. State, supra at p. 356 (court to determine "whether the evidence presented at the hearing considered with the evidence at the original trial warrants the granting of a new trial.").
With respect to this fourth prong of the Asherman standard, our Supreme Court, in Shabazz, described the role of the trial court on a petition for a new trial:
. . . it must first determine that the [new] evidence passes a minimum credibility threshold . . . If . . . the trial court determines that the evidence is sufficiently credible so that, if a second jury were to consider it together with all of the original trial evidence, it probably would yield a different result . . . the fourth element of the Asherman test would be satisfied.
The court has reviewed the testimony of Dr. Melton at the civil trial, as well as the reports of Mitotyping Technologies which were admitted in evidence as petitioner's exhibits. I can find no basis for concluding that the testing methodology employed was deficient, or that the professional opinion of Dr. Melton excluding the petitioner as a source of the unknown pubic hairs is unsound. Respondent has never suggested that the new mtDNA evidence was unreliable or not credible; both parties rely on the mtDNA testing: petitioner to exclude himself as a depositor of the questioned hairs, and respondent to establish that the mtDNA from the questioned hairs is consistent with the victim's mtDNA obtained from the buccal swab. As stated in Shabazz, although the trier of the new trial petition is more than simply a "gatekeeper," anticipatorily ruling on the admissibility of the new evidence at a second trial, it also is not "the final and sole arbiter of credibility in evaluating the evidence alleged to justify a new trial." 259 Conn. at p. 826-27. The new mtDNA evidence satisfies the initial, required threshold on credibility; if a new trial were granted, this expert testimony would, likely, be before the second jury, with the usual instruction on expert testimony, permitting the jury to accord it whatever weight, if any, that jury felt it merited. Cf. 259 Conn. at p. 827 fn. 11.
Having determined, preliminarily, that the new evidence excluding petitioner as the contributor of the pubic hairs found on M.'s clothing (as well as establishing that the mtDNA sequence for all three questioned samples is the same, and the same as M.'s) satisfies the minimum credibility prerequisite, the dispositive issue necessarily becomes whether, in the context of the criminal trial evidence, it probably would produce a different result on retrial. Resolution of that issue requires, initially, some assessment of the crucial evidence presented at the criminal trial. In such regard, this court has conducted a careful and deliberate study of all the original trial transcripts. Having presided at the criminal trial, I was in the position of not just reading the cold record, but also of recollecting, to an extent, witness demeanor and conduct, as well as the manner in which the evidence had been developed and presented to the jury. See, State v. Edwards, 10 Conn. App. 503, 516 (1987); State v. Reilly, supra at p. 356; but see also State v. Hammond, 221 Conn. 264, 270 fn. 2 (1992).
The crucial evidence at the criminal trial included, of course, M.'s identification of the petitioner as the perpetrator of this crime. The new mtDNA evidence does not, in and of itself, conclusively exclude petitioner as the perpetrator of the crime, but rather, as the source of the pubic hairs on the victim's clothing. For the reasons stated in my ruling on the motion to suppress the identification, it was my view that the identification procedure was reliable. Having heard and observed the victim testify, and on the basis of the totality of the evidence (including the Settachatgul testimony), I considered, as the jury apparently did, M. to be credible. Both the jury and the court heard all of the circumstances of the Martin Park incident, Officer Fox's testimony regarding M.'s sobriety when he arrived at her residence, the testimony of Officer Malozzi as to M.'s emotional reaction and degree of certainty when she selected defendant's picture from the array, and the Settachatgul hair comparison testimony. M. was cross-examined at great length, she remained adamant in her identification of Mark Reid as the perpetrator of this crime, and, provided reasons supporting her recognition of the attacker from his one-month-old photo. Among those reasons were the time she had to view the perpetrator's face; the ambient lighting enabling her to do so; the proximity of the attacker's face to hers at various times; her statement that she was concentrating on his facial features; and her description of the facial features she recalled in selecting petitioner's photo from the array.
At the civil trial, this court commented on the State's interest (indeed, society's interest) in the finality of judgments. That interest is particularly significant in a case involving a forcible, dreadful sexual assault; the victim has come into court, identified petitioner as the perpetrator, articulated reasons supporting that identification, and has been subjected to extensive cross-examination. Sound public policy requires that all litigation come to an end; the longstanding maxim "interest republicae it sit fivis litium," an acknowledged embodiment of "wisdom and justice"; Reilly v. State, supra; demands, understandably, that this victim not be required to again testify, and thereby relive that frightful experience, absent-a compelling reason to do so. Such is the very underpinning of the strict Asherman standard; Asherman v. State, supra at p. 434; which serves to aptly signify the grave responsibility of a trial court in ruling on a petition for a new trial.
Petitioner at the civil trial, as he did at the motion to suppress hearing, placed considerable emphasis on M.'s having been told that the police had a suspect. For the reasons stated in my denial of the motion, and in the Supreme Court affirmance, I do not, and did not, attach a great deal of significance to that circumstance in assessing reliability. There was nothing in the out-of-court identification process which emphasized petitioner's photo; any victim may be expected reasonably to believe that he or she is being asked to view an array because the police have a suspect, and that the suspect's photo is included in the array; and, the victim testified that she did not recall being told there was a suspect's photo in the array, and that such fact played no role in her selection of photo #7.
Regarding the identification, and its reliability, petitioner's counsel has pointed to evidence not before the jury, but adduced during the suppression hearing, relating to circumstances leading up to the inclusion of Mark Reid's photo in the array; i.e., what circumstances led to petitioner's becoming a suspect within just a few days after the incident. As stated in the Supreme Court decision, petitioner's photo was placed in the array when other East Hartford officers advised Officer Malozzi that Mark Reid fit the victim's description. Counsel argued at the civil trial:
There was no independent investigation by the East Hartford police department; they didn't conduct an interview; they didn't interview any other witnesses; they didn't develop any particular case. It's just that one East Hartford police officer took a description and another police officer said, that sounds like Mark Reid. Let's put together a photo array. And that's it. I think it has a bearing on the strengths of the State's case where there'd be a retrial . . .
The attorney emphasized the above in the context of the note received from the jury requesting Officer Malozzi's report and asking to "hear how the photo array was developed and selected . . ."
Counsel raises a perfectly valid point concerning the potential strength or viability of the identification at a new trial, considering what is now known through the new mtDNA evidence, and the former jury's interest in how the array was "developed and selected." The Assistant State's Attorney responded, however, that it would indeed be quite speculative to undertake to determine what weight the jury would have attached to evidence of how Photo #7 came to be included in the array. The facts regarding the placement of petitioner's photo in the array certainly do not enhance the reliability of the identification, but nevertheless, those facts do not, in my view, detract that significantly from its reliability given the other circumstances (as set forth hereinbefore) surrounding the identification. Notwithstanding the reason (s) for the preparation of an array with petitioner's photograph contained therein, and the former jury's inquiries regarding how that array was "developed and selected," the issue is still, as I see it, what weight would a second jury, in light of the newly discovered mtDNA evidence, accord the identification.
Interestingly, the very information petitioner now argues adversely affects the reliability of the identification, which information the jury by note was requesting, was offered in evidence by the State, and objected to by the defendant; the defense objection was sustained by the court. Prior to the testimony of Officer Malozzi, outside the presence of the jury, the defense objected to any evidence showing that the witness had received information from two community police officers indicating the description given by the victim matched Mark Reid, resulting in the array being composed with his photo. During quite lengthy oral arguments on the offer, the Assistant State's Attorney maintained: ". . . it's important for the jury to know that . . . his picture . . . was included because he was a suspect." And, further: "I . . . intend to ask [Officer Malozzi] how he came to include Mr. Reid's photo in the photo array. I think that if I don't bring that out, it leaves the jury wondering how, out of the blue, his photo happened to be in the array."
Petitioner argued that the absence of additional police investigation prior to the compilation of the array significantly detracts from the reliability of the identification. The police had a rather detailed description of the perpetrator from the victim, and the victim had given an oral statement to Officer Fox and a written statement to Officer Malozzi. Community officers familiar with petitioner, and aware of his presence in the area, informed Officer Malozzi that Mark Reid fit the description given by M. The array consisted of eight photos of similar appearing black males, including the one-month-old photo of Mark Reid, which did not show freckles. The prompt composing of the array and the prompt presentation of the array to the victim for viewing had the potentiality of either exculpating or inculpating Mark Reid. The interval of merely four days, and the use of a photo which was just one month old, added to the reliability of this identification.
The newly discovered mtDNA evidence must be considered, not just in the context of the victim's identification, but also in the context of the entire evidence, including the Settachatgul testimony, and, various other portions of M.'s testimony. As petitioner points out, Mr. Settachatgul's expert testimony was the only forensic evidence tending to connect petitioner to the commission of this crime. At this point, the probative value of microscopically visible similarities between the known and unknown hair samples is substantially diminished by the results of the mtDNA testing excluding Mark Reid as a source of the unknown hairs. Left is Mr. Settachatgul's conclusion that the unknown hair samples are Negroid pubic hairs, which conclusion is not placed in question by Mitotyping testing covered by the May 9, 2002 report. The Settachatgul conclusion as to Negroid origin, however, is placed in question by the report of June 3, 2003 indicating that the victim (white) cannot be excluded as the contributor of the questioned hairs; although Dr. Melton made clear the mtDNA testing could not distinguish race or gender, she also testified that "no more than six one-hundredths of one percent of North Americans would be expected to have" the same mtDNA profile found in both M's buccal swab and the three questioned hairs. As to the three unknown samples being pubic hair, there is no apparent reason to reject Mr. Settachatgul's conclusion regarding somatic origin. Petitioner argues in his Supplemental Memorandum of Law that the Settachatgul testimony as to somatic and racial origin is evidence which, for purposes of this petition, should be considered with the new mtDNA evidence excluding petitioner as a contributor of the questioned hairs (but not excluding the Caucasian victim as a contributor).
The defense offered evidence at the criminal trial, and argued during summation, that the Settachatgul conclusion on racial origin of the questioned hair samples was unsound, i.e. the expert was mistaken in that regard. The forensic handbook, Defendant's Exhibit D, indicates, as argued in the defendant's summation, that the hair characteristics examined microscopically to determine racial origin apply primarily to head hair, not pubic hair.
In such context, portions of M.'s testimony pertinent to this petition are: (1) the gentleman who accompanied her to the U. Café, with whom she was with for the greater part of the evening, was white; (2) after that gentleman left the Caf é at about 11:30 p.m., she continued to socialize with some other people; (3) all of the people she observed at the bar that night were white; (4) while she had been to the Caf é once or twice before, and did not know if it was generally a white bar, that evening they (patrons) were all white; (5) accordingly, everyone she was talking to, drinking with, or playing pool with that evening was white; (6) she did not come in contact with any other African-American individuals that evening before or after the sexual assault; and, (7) her articles of clothing were clean when she put them on.
Petitioner contends that consideration of all the evidence set forth in the preceding paragraphs, including the mtDNA evidence excluding petitioner as the source of the found hairs (but not excluding M. who is white), and establishing that all three hairs are from the same person (not petitioner), along with Mr. Settachatgul's testimony that the three unknown pubic hairs are of Negroid origin, and that they were found on the victim's recently cleaned jeans, sock, and most significantly, on her panty, necessarily leads to a conclusion that one other than Mark Reid committed this crime. That is if Mr. Settachatgul's opinion is correct that the three questioned hairs are pubic hairs of Negroid origin, then the source of those pubic hairs was not the white victim, M., but rather a person, other than petitioner, of Negroid descent. And adding to that, M.'s testimony that her jeans were clean before she put them on, that she had no contact with other Negroid persons that evening, and that she observed no Negroid persons in the Café, it becomes unlikely that those hairs were picked up other than during the sexual assault, particularly since one of the questioned pubic hairs was found in an intimate area of the victim's attire; the entirety of such evidence, according to petitioner, lends support to a claim of mistaken identification, i.e., that the perpetrator was a person of Negroid descent, but not petitioner. Of course, any such conclusion of mistaken identity, grounded on the above reasoning, is necessarily premised on the correctness of Mr. Settachatgul's opinion that the unknown pubic hairs are of Negroid origin. If Mr. Settachatgul's opinion is incorrect in that regard, then M.'s testimony regarding not seeing or having any contact with other Negroid persons that night, coupled with the new mtDNA evidence that she cannot be excluded as a contributor of the found pubic hairs, one of which was found on her panty, would support respondent's contention that those pubic hairs were M.'s, and, therefore, her identification of petitioner remains reliable.
Of course, as stated, Mr. Settachatgul could be mistaken in his opinion that the three unknown hairs were of Negroid origin. See: fn. 33 supra and fn. 36 infra.
It is, of course, within the realm of possibility that M. could have picked up these hairs on her garments, unknowingly, in a public facility or any other location, but such an assumption would be entirely speculative. And, as stated, the jeans were clean that day, and no African-American patrons were observed in the Caf é that evening.
It is not merely speculative that Mr. Settachatgul was mistaken in his opinion that the three unknown pubic hairs, 2212Q1, Q2, and Q3, were of Negroid origin, since the mtDNA sequences for the questioned strands match the sequence of 2212K2, M.'s swab, and according to Dr. Melton, 99.94 percent of the population would not be expected to have that profile. At the criminal trial, petitioner's attorney argued to the jury that the State's expert was mistaken as to racial origin based on the laboratory's forensic handbook. See: fn. 33 supra. And, in the civil trial, petitioner's counsel argued: "[h]e did testify . . . these were Negroid pubic hairs . . . we now have no reason to believe that that's the case . . . from the State's evidence here today it seems likely that it's not the case." In the Supplemental Memorandum of Law (2/14/03), petitioner's counsel changed course, arguing that the trier of this petition should accept the Settachatgul testimony on the racial origin of the found hair, for the purpose of excluding petitioner as the perpetrator on the basis of the 5/9/03 mtDNA testing of the three hairs.
VI. CONCLUSION
This is a close, difficult case. The new mtDNA evidence merely excludes petitioner as the depositor of the unknown hairs; it clearly does not exonerate him. And, as stated, the victim, M., was certain and steadfast in her identification of Mark Reid, and the circumstances surrounding that identification support its reliability, at least when viewed absent the newly discovered mtDNA evidence. At the former trial, however, there was strong and convincing circumstantial evidence, produced by the State through its expert, in support of the victim's identification, that Negroid pubic hairs found on the sexual assault victim's clothing (including her panty) were microscopically similar to petitioner's and, thus, considering the entire evidence, very probably his. That evidence, stressed by the State, was, if accepted by the jury, immensely supportive of the victim's identification, and cannot be dismissed now as being unnecessary simply because it is impossible to quantify what weight the jury might have placed on it.
The evidence at trial was that the three unknown hairs were Negroid pubic hairs; as stated, if that is accurate, the new mtDNA evidence, along with the victim's testimony that she had no other contact with Negroid persons that evening, substantially excludes petitioner as the perpetrator. If, on the other hand, the three hairs are not Negroid, as very strongly suggested by their match with the mtDNA sequence of the victim, then petitioner, although excluded as the depositor of the three pubic hairs, is not excluded as the perpetrator. But, for present purposes, all of the new mtDNA evidence is to be considered in the context of the evidence at the criminal trial, which includes Mr. Settachatgul's testimony.
A new trial could proceed along any one of a number of evidentiary scenarios. One such scenario is that the case would go to the jury just on the victim's identification of petitioner, since it would seem that the presence of pubic hairs on the victim's clothing of one other than the petitioner becomes less probative or useful when it is brought out that those pubic hairs are quite likely the victim's own. Or, as another possible scenario, the case at a new trial conceivably could proceed as urged in petitioner's Supplemental Memorandum of Law: "In a new trial Mark Reid will be armed with the argument that the questioned hairs are Negroid pubic hairs, but not his pubic hairs." However, as stated, the contention that the three pubic hairs are of Negroid origin (based on the testimony of the State's own witness) is seemingly assailable given the additional new mtDNA evidence developed through the June 3, 2002 testing that the questioned pubic hairs may well be those of the victim, M. In evaluating relative probative value or weight, much is dependent on credibility assessments of the witnesses, particularly the experts, and, this court should not be "the final and sole arbiter of credibility" with respect to evidence alleged to justify a new trial. Shabazz v. State, supra at p. 826-27.
Petitioner's Supplemental Memorandum of Law is dated and file-stamped February 14, 2003. Respondent filed neither a trial brief nor a response to petitioner's Supplemental Memorandum, but, at trial, did cite the authorities relied upon.
Respondent's position that it did not need the Settachatgul evidence at the criminal trial to convict, given a reliable identification of the perpetrator by the victim, while not necessarily unsound, nevertheless appears to me to somewhat beg the question. The reality is that the State, to support the victim's identification, presented, and relied quite heavily upon, circumstantial evidence strongly suggesting that it was defendant's pubic hairs that were found on the victim's clothing, including her undergarment (panty). That was the inference to be drawn from the Settachatgul testimony (found hairs were Negroid pubic hairs having characteristics similar to defendant's), if the jury chose to draw it, upon a consideration of the entire evidence. Respondent's contention that a second jury, presented with the victim's identification, would quite probably reach the same result, because it is unknown whether the first jury drew the inference, and/or because it cannot be determined what weight that jury accorded the Settachatgul testimony, is not altogether persuasive. A second jury could not draw, and would not be asked to draw, that inference because the new mtDNA evidence, if believed (and respondent has presented this court with no reason why it should not be believed), now excludes petitioner as a depositor of the questioned hairs; the new evidence, in my view, substantially dilutes any probative effect the Settachatgul evidence might have in terms of lending support to the victim's identification.
Simply put, at the criminal trial, the identification by the victim was presented to the jury along with strong circumstantial evidence provided by the Settachatgul expert testimony which, if accepted, furnished powerful support for the victim's identification; guilty verdicts resulted. At a retrial, the victim's identification would not have the support of such circumstantial evidence in view of the new mtDNA evidence excluding petitioner as the source of the pubic hairs. That I may consider the victim's identification reliable is of limited significance; the ultimate determination as to its credibility rests with a jury. Although the former jury had to have accepted the victim's identification in order to convict, it did so in a proceeding where it was presented with expert testimony circumstantially supporting that identification. At a retrial, any such circumstantial support for the identification, even if present in the State's case, would be undercut by the new mtDNA evidence; that is, the credibility of the identification would have to be assessed absent microscopic hair comparison evidence, and possibly (depending on how a new trial unfolded), in light of the new mtDNA evidence showing that pubic hairs found on the victim's garments were not petitioner's.
As our case law mandates, the newly discovered mtDNA evidence is to be weighed in the context of the evidence adduced at trial. Pertinent evidence at trial included the victim's identification, her testimony that she had no contact with other persons of Negroid descent, that her clothing was clean when put on that night, and expert testimony that pubic hairs found on the victim's clothing (including her panty) were of Negroid origin having characteristics microscopically similar to hair samples obtained from petitioner. The new mtDNA evidence excludes petitioner as the source of the pubic hairs found on victim's clothing; therefore, a significant portion of the State's original evidence, the Settachatgul expert testimony, now has but minimal probative value in terms of lending support to M's identification. Clearly, that was evidence which was relied on and stressed by the State as supporting the identification; in view of the mtDNA evidence, it would be of little value to the State's case on retrial. In my judgment, therefore, it is now within the realm of reasonable probability that the result would be different on retrial. I reach this conclusion recognizing that the 6/3/03 testing indicates the victim could not be excluded as the source of the found hairs, but also, considering what I believe to be, in the circumstances of this case, the considerable probative value of the evidence elicited through the State's expert, Mr. Settachatgul, supporting the victim's identification at the criminal trial — Negroid pubic hairs found on victim's lower garments, including on the surface of her undergarment (panty), similar to defendant's pubic hair (now forensically determined not to be defendant's pubic hair).
It is concluded that petitioner has sustained his burden of proof, applying the applicable standard. Accordingly, the petition is granted.
Mulcahy, J.