Opinion
No. CR-94-230560
October 3, 2007
MEMORANDUM OF DECISION
On May 9, 1996, the defendant, Luis Martinez, was found guilty by a jury of murder, attempted robbery and felony murder in the shooting death of Paul DeFillippi. The defendant was sentenced by the court (Murray, J.) to sixty years in prison. The judgment of conviction was affirmed on appeal; see State v. Martinez, 51 Conn.App. 59, 719 A.2d 1213 (1998); and the Supreme Court denied certification to appeal further. See State v. Martinez, 247 Conn. 952, 723 A.2d 324 (1998). Pursuant to General Statutes § 54-102kk, the defendant now petitions the court to order the Connecticut Forensic Science Laboratory to perform DNA testing on a bloodstain located on the cuff of a sweatshirt the defendant was allegedly wearing when DeFillippi was murdered. He claims that at his trial the state argued that the blood stain belonged to the murder victim and that DNA testing would prove it did not.
General Statutes § 54-102kk, enacted by the General Assembly in 2003, and "DNA testing of biological evidence," provides:
(a) Notwithstanding any other provision of law governing postconviction relief, any person who was convicted of a crime and sentenced to incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court requesting the DNA testing of any evidence that is in the possession or control of the Division of Criminal Justice, any law enforcement agency, any laboratory or the Superior Court. The petitioner shall state under penalties of perjury that the requested testing is related to the investigation or prosecution that resulted in the petitioner's conviction and that the evidence sought to be tested contains biological evidence.
(b) After notice to the prosecutorial official and a hearing, the court shall order DNA testing if it finds that:
(1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing;
(2) The evidence is still in existence and is capable of being subjected to DNA testing;
(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and
(4) The petition before the Superior Court was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice.
(c) After notice to the prosecutorial official and a hearing, the court may order DNA testing if it finds that:
(1) A reasonable probability exists that the requested testing will produce DNA results which would have altered the verdict or reduced the petitioner's sentence if the results had been available at the prior proceedings leading to the judgment of conviction;
(2) The evidence is still in existence and is capable of being subjected to DNA testing;
(3 The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and
(4) The petition before the Superior Court was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice.
(d) The costs of DNA testing ordered pursuant to this section shall be borne by the state or the petitioner, as the court may order in the interests of justice, except that DNA testing shall not be denied because of the inability of the petitioner to pay the costs of such testing.
(e) In a proceeding under this section, the petitioner shall have the right to be represented by counsel and, if the petitioner is indigent, the court shall appoint counsel for the petitioner in accordance with section 51-296.
At the hearing on the defendant's petition, the State argued that the petition should be referred to Judge Murray, the trial judge at the defendant's criminal trial. The defendant argued that this was unnecessary.
General Statutes § 54-102kk(a) provides in relevant part: "Notwithstanding any other provision of law governing postconviction relief, any person who was convicted of a crime and sentenced to incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court requesting the DNA testing of any evidence that is in the possession or control of the Division of Criminal Justice, any law enforcement agency, any laboratory or the Superior Court." In Mitchell v. Commissioner of Correction, 93 Conn.App. 719, 722-23, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006), the court held that a court hearing a petition for habeas corpus seeking relief pursuant to General Statutes § 54-102kk did not abuse its discretion in deferring that issue to the sentencing court. However, the court also observed that "although the court did not abuse its discretion in denying the petition requesting DNA testing, P.A. 03-242, § 7 [now codified as § 54-102kk], does not limit requests for DNA testing to the sentencing court alone." Id., 723 n. 4.
Subsequent to the hearing, the undersigned consulted by telephone with Judge Murray, who is currently assigned to another Judicial District. Judge Murray expressed a preference that the undersigned decide the petition.
I
Though not briefed by the parties, the court first addresses the appropriate standard by which this court, in applying § 54-102kk, is to review the evidence before the original trial court.
In ruling on a motion that challenges the sufficiency of the evidence supporting a conviction, this court must view the evidence in a light most favorable to sustaining the verdict of guilty. State v. Jacobowitz, 194 Conn. 408, 415, 480 A.2d 557 (1984). The motion before the court, however, does not challenge the sufficiency of the evidence. Rather, the petition requires a determination as to whether, "a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing" at the time of trial; General Statutes § 54-102kk(b)(1); or whether "a reasonable probability exists that the requested testing will produce DNA results which would have altered the verdict or reduced the petitioner's sentence if the results had been available at the prior proceedings leading to the judgment of conviction." General Statutes § 54-102kk(c)(1). For such determinations, the standard of review applicable to a motion challenging the sufficiency of the evidence underlying the defendant's conviction is inappropriate. The petition here virtually concedes the sufficiency of such evidence, but claims that if exculpatory results are adduced through DNA testing of the sweatshirt, such evidence, had it been available at trial, would have avoided his prosecution or conviction.
Preliminarily, the court observes that General Statutes § 54-102kk(b) and (c) employ the "reasonable probability" standard, a standard well known in the law in the context of evidence illegally suppressed by the prosecution in a criminal case. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment." In determining the standard of materiality to be applied in deciding whether a conviction should be reversed because of a Brady violation, the Court in United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), held that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Both Brady and § 54-102kk require the court to estimate what effect evidence made available to the defense post-trial would have had if it had been available pre-trial. Because of this similarity in purpose, the court holds that the definition of "reasonable probability" adopted in Bagley applies to proceedings under § 54-102kk.
Moreover, in United States v. Agurs, 427 U.S. 97, 113, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the court, analyzing a Brady claim, held that the evidentiary "omission must be evaluated in the context of the entire record." Again, this standard is applicable by analogy to petitions filed pursuant to General Statutes § 54-102kk. Therefore, on a petition such as this, filed pursuant to General Statutes § 54-102kk, the court must view the evidentiary record objectively and as a whole, including evidence favorable to the defendant.
II
The court now undertakes a review the evidentiary record objectively and as a whole, including evidence favorable to the defendant, including a review of the evidence and exhibits introduced at the defendant's trial.
The State called thirteen witnesses. Its first witness was Donna LeRoy. LeRoy testified as follows: In September 1994 she lived on Barnes Street in Waterbury. She worked the night of September 12, 1994, from 3:00 P.M. to 11:00 P.M., on Grove Street. She left work at 11:00 P.M. and was walking from her place of work to her home. At about 11:15 P.M., at the corner of Beacon and Crown Streets, where St. Thomas Church is located, she saw a body laying on the sidewalk, slumped up against a stone wall on the side of the church. She checked the body's pulse and found none. The dead male had a gold chain in his hand, headphones on his head and was laying on a black gym bag. She saw someone arrive at the house across the street and asked that person to call the police. The police responded five minutes later.
The second witness was Officer Thomas Guglielmi, a twelve-year veteran of the Waterbury Police Department, who was on patrol the night of September 12, 1994. Officer Guglielmi testified that at 11:43 P.M. he received a dispatch saying that there was "a man down" at Crown and Beacon Streets in Waterbury. He was the first to respond to the location. There, he saw a man laying half on the stone wall and half on the sidewalk next to St. Thomas Church. The body was that of a heavyset white male who appeared to be in his thirties. Guglielmi checked the man for injuries and found blood stains on his clothes, specifically on the left shoulder of his sweatshirt. Guglielmi detected a small caliber bullet wound in the right side of the victim's neck, just above the collar of his sweatshirt. He found blood stains on his left back and when he lifted up his shirt, he found what appeared to be a bullet wound on the left side, halfway down his back. The victim was laying across a gym bag, had a pair of earphones on his head and a gold chain in his left hand. Beneath the body, he also found a cigarette lighter. A baseball hat was on the ground next to the body. Later that night, Guglielmi looked in the bag and found gym clothing that was wet and sweaty. He checked for signs of life and found none. He searched the area for spent shell casings and for any other evidence of the crime. He found no shell casings. He could not find any identification on the victim.
The next witness, Richard Confrancesco, testified as follows: He was living on 100 Pilgrim Avenue in November 1994 with two roommates, Paul DeFillippi and Ronald Seals. He had been living with Defillippi for about two years. At 1:30 A.M. on November 13, 1994 he was contacted by the Waterbury Police Department at his apartment and told that there had been a robbery and murder. The police asked him to come to the scene to identify the victim. He went to St. Thomas Church and identified the victim as Paul DeFillippi. He had last seen the victim at 4:00 P.M. on the afternoon of November 12, 1994 at the YMCA. Cofrancesco further testified to the following: The gold chain was the victim's; the headset was also the victim's, which he wore when he went to a walk or at work. The victim always had his black gym bag with him. The victim was a smoker and his lighter was found at the scene. Earlier that day, the victim had told Cofrancesco that he had no money. The victim was working maintenance at the YMCA on West Main Street. He worked from 5:00 P.M. to 9:00 P.M. and would occasionally work extra hours. On his walk home from work, the victim would often stop at St. Thomas Church, sit down and smoke a cigarette. Cofrancesco, who also worked at the YMCA, knew this because he would occasionally walk with the victim. Cofrancesco had expected the victim to return home after work that night.
The fourth witness called by the state was Dr. Edward McDonough, a forensic pathologist employed by the Office of the Chief Medical Examiner. Dr. McDonough testified that he performed an autopsy of the victim on September 13, 1994. The body came directly from the crime scene in Waterbury and was that of an adult male, 37 years old, 5'8", 245 pounds. The body was identified as Paul DeFillippi. There were two gunshot wounds on the left side of the victim's body, one in the left shoulder and one in the left side of the chest. The bullet in the left shoulder went almost through the body, but got stuck in the muscle. It was retrieved during examination. There was no gunshot residue surrounding the entry wound, but there was typical bruising and abrasion. The gunshot wound on the victim's left side was just below the ribs. When that bullet entered the body, it went toward the back and caused damage to the left adrenal gland, the left spleen, and then entered the chest causing damage to the aorta, which caused two and one-half quarts of blood to fill up on the right side of the chest. It also damaged the right lung, and embedded in the right armpit region. The body had various colored shadings near the armpit and red marks (postmortem lividity). The cause of death was the gunshot wounds to neck and chest. The lethal wound was the gunshot wound that went into left side of body.
Demarise Williams testified that in September 1994, he was living on the first floor five-room apartment at 54 Crown Street in Waterbury with his girlfriend, Darlene Saunders, their nine-month-old son, Darlene's cousin, Ella Saunders, and the defendant. Ella was the tenant. The defendant's nickname was "Tone"; he was Ella's boyfriend. In September 1994, Williams had known the defendant for two months. Williams said that he and the defendant were "associates" or acquaintances. He also testified that he shared the bedroom in the back of the house with Darlene. Ella's bedroom was located towards the front of the house, on the right, where the defendant also stayed.
On the evening of September 12, 1994, Williams was watching television at the house with Darlene. At around 8:00 P.M., according to Williams, the defendant entered the house and inexplicably started throwing things and "acting hyper." The defendant stayed in the house for about a half hour and then left. Williams saw the defendant again when the defendant came back to the house and asked Williams to join him on the front porch. Williams and Darlene went outside with the defendant onto the porch. The defendant was still "acting hyper." The defendant said that he needed some money, to which Williams replied, "we all need money." The defendant then said, "come with me to get some money." The defendant did not say where he was going to get money, but he was making his way towards the sidewalk as he was speaking and was looking down the hill towards the church. Williams looked down towards the church and saw a white male leaning on the church wall. He could not see what the man was doing. The defendant asked Williams if he was coming. At first Williams refused but then agreed to follow the defendant. The defendant had still not told him what he was going to do. However, while they were on the porch the defendant showed Williams the handle of a pistol tucked in his waistband. Darlene heard their conversation.
Williams followed the defendant towards the church. Williams stood in the middle of the intersection, while the defendant walked towards the wall where the man was sitting, smoking a cigarette. Williams described the man as white and heavyset. The defendant stood about four feet away from where the man was sitting. He removed the pistol from his waist and held it by his side as he approached the man. The defendant told the man, "[c]ome out your pockets," which Williams interpreted as ordering the white man to remove whatever was in his pockets. The man did not respond. He continued to smoke his cigarette and looked away. The defendant repeated himself and pointed the gun at the man. At this point Williams shook his head as if to say "no" and started backing up across the street. He heard the man tell the defendant that he did not have anything. The defendant pulled the trigger of his gun, but nothing happened. Williams heard two clicks. The man on the ground still did nothing. The defendant checked his gun, opened the cylinder, and fiddled with it for a few seconds. He then closed it, pointed the gun at the man and fired two shots. The man put his hand across his body after the second shot, and leaned to one side. Williams started to run after the second shot was fired. He did not see anyone else in the area.
Williams testified that he ran back to the house alone and into his bedroom where Darlene was in bed. He told her, "Tone shot that man." The defendant then came into the kitchen and started laughing. Williams said to the defendant: "You're crazy." The defendant replied: "F — k him. He didn't have shit anyway," and kept laughing. Darlene was in shock and threatened to call the police. The defendant responded: "She'll never make it out of the house alive." Williams heard ambulance sirens, and said to himself, "I hope he [referring to the victim] ain't die, like that."
Williams testified that when the defendant pulled the trigger he was wearing a hooded sweatshirt and a pair of shorts. The hood was brown and it had orange writing on it that said "Browns." The hood was up around his head. After he shot the victim, the defendant still had the sweatshirt on. Williams testified that the gun the defendant used was a long silver revolver that had electrical tape around the handle. Williams had seen the defendant with the gun before the night of the shooting. The defendant also saw the gun the day after the shooting.
He testified that he did not call the police on the night of the shooting because he did not want anything to happen to Darlene, whom the defendant had threatened. Later, he did talk to the police and gave them a statement. Williams was charged with conspiracy to commit first degree robbery. He pleaded guilty, after which he was released on a written promise to appear pending sentencing. At the trial of the defendant's case, Williams did not know what the State's sentencing recommendation would be. The State has not agreed to give him anything in exchange for his testimony, but promised to take his cooperation into consideration and to tell the sentencing judge that he cooperated.
On cross examination, Williams stated that the police came to his house at 54 Crown Street on September 14, 1994. They arrested him on a warrant in an unconnected assault case. The assault charge was nolled after he spoke with police, which was also the day he was arrested for robbery in connection with this case. After he pleaded guilty to robbery on June 19, 1995, and the condition of his release was modified to a promise to appear. The State agreed not to seek to have him sentenced for the robbery until he had testified in this case. Williams acknowledged that he had reviewed the statement he had given the police. He had also discussed his testimony with the State on two occasions.
Waterbury police officer Michael Gugliotti testified that he assisted in the execution of a search and seizure warrant for the first-floor apartment of 54 Crown Street. He searched the front bedroom for a .22 caliber revolver handgun, ammunition and any item of bloody clothing. On the doorway leading to the front bedroom there "was a note to a person named Tone and it mentioned something about if you can't keep the room clean, then don't go inside. Something to that effect." Gugliotti found both female and male clothing in that room. He searched the bureau, dresser and went through items in the room itself, the bed area and the closet. In the closet he found a .22 caliber revolver handgun in a pile of clothes on the floor. The revolver appeared to be stainless steel or silver and the handle was wrapped with black electrical tape. He informed the forensics officer, Michael Silva, who was in charge of collecting evidence and who took possession of the gun. Gugliotti did not recall if there was ammunition in the chamber of the gun.
On cross-examination, Gugliotti admitted that he did not have personal knowledge as to who placed the gun in the closet.
Waterbury police officer Edwin Soto testified that on September 15, 1994, he too was involved in the execution of a search and seizure warrant for the first-floor apartment on 54 Crown Street. He searched the living room. He found a sweatshirt under the cushions of the sofa. It was brown and said "Browns" on it in lettering that was a shade of orange. There was a stain on the front of the sweatshirt and on the sleeves. Soto called Silva to take possession of the sweatshirt, and Silva did so.
On cross-examination, Soto admitted that he did not have personal knowledge as to who placed the sweatshirt in the couch and he did not know when the sweatshirt had been stained.
Michael Silva, the Waterbury Police Department's forensic technician testified that, on September 15, 1994, he participated in the seizure of items from 54 Crown Street. From the living room, he seized a brown sweatshirt because it had blood stains on the left cuff. He also seized a .22 caliber revolver from the closet of the first bedroom off of the kitchen. The gun was silver and the handle was taped. He checked the chamber of the gun for ammunition at the crime lab. He does not recall what was in it. Anything in it was placed in the bag with the gun. Looking at the bag in court, he recognized two .22 caliber bullets and two .22 caliber shell casings. He also examined the items for any latent prints. None were found.
Silva recalled that there was a note addressing a person named Tone on the door of the front bedroom. The nature of the message was about "being neat."
Silva attended the autopsy of the victim on September 13, 1994 for the purpose of photographing the body and collecting evidence from it. Two .22 caliber bullets were taken from the body of the victim by Dr. McDonough. Silva received the bullets and brought them to Waterbury crime lab and tagged them into evidence. The bullets were wrapped in paper with his initials on them.
On cross-examination, Officer Silva admitted that he had no personal knowledge as to how the sweatshirt got in the couch, who wore it, or how long the stains had been on it.
Witness nine for the State was Marshall Robinson, a firearms expert currently employed by the Waterbury Police Department. He examined the two .22 caliber lead bullets taken from the victim's body. He testified that the bullets are .22 long rifle lead bullets. He also examined the gun, two cartridge cases and two cartridges. Robinson testified that the cartridges matched the bullets that were removed from victim's body, that the gun was designed not to eject spent cartridge cases, but to retain them in the firearm, and that the original grips of the gun were missing and the electrical tape was probably put on to make it more comfortable to grip, to protect the hand, or to keep dirt out.
Robinson test fired the gun to determine if it functioned properly and to recover test bullets, known as test cartridge cases. He then compared the test cartridge cases to the cartridges recovered from the victim's body. During testing the first three fired; the fourth did not. Robinson re-indexed the cylinder and fired it again and the gun fired. Robinson testified that there could be a variety of reasons for this malfunctioning, specifically, ammunition failure, a light hammer fall, or a "head space." He testified that when a gun fails to fire, an observer would hear the click and see the hammer fall. In his opinion, the gun fires. He retrieved the ammunition from the test shots and compared the test bullets and test cartridge to those in evidence. The individual markings of the pin impressions were present on both the evidence and the test shots.
On cross-examination, Robinson admitted that he did not know when the bullets recovered from the victim were fired. However, he testified that all of the chambers had been fired since the gun had last been cleaned.
Following Robinson's testimony, Patricia Johannes, a criminologist employed by the Connecticut State Police, Forensic Science Laboratory, testified that she examined the sweatshirt that was seized in the house on October 24, 1994 and which said "Browns" on it. She found a single stain on the sweatshirt that tested positive for blood. The stain was on the left cuff of the garment. She also tested the stain for human hemoglobin, which indicated that it was definitely human blood. She performed an A-B-O test to determine the type of blood that had stained the garment. That test yielded inconclusive results.
She also tested the sweatshirt for gun powder residue by testing for nitrates, a component of gun powder residue. Both cuffs on the sweatshirt tested positive for nitrates. Nitrates were also found in area along waistband.
On cross-examination, Johannes admitted that the kind of gun used could not be determined from the presence of gunpowder. She also reiterated that she could not determine what type of human blood was on the sweatshirt, nor whether it was the victim's blood or the defendant's blood. Nor could she determine how long the blood had been on the sweatshirt or how it got there.
Waterbury Police Officer Gary Pelosi testified that he attempted to apprehend the defendant on a felony murder warrant after DeFillippi's death. The defendant could not be found in the Waterbury area. Based on information that the defendant might be at his sister's apartment in Brooklyn, New York, Pelosi looked for him there. While in the hallway leading to that apartment, he heard a commotion and observed that the ceiling door leading to the roof of the building was open and swinging. The door to the defendant's sister's apartment was also partially open. Pelosi climbed onto the roof where he saw the defendant and another person running away. Pelosi apprehended the defendant and arrested him.
Chris Lovejoy testified that just before noon on the day before the murder, he went to his aunt's house on Beacon Street, Waterbury. On that day, he saw someone on Beacon Street, whom he identified in the courtroom as the defendant wearing a hooded Cleveland Browns sweatshirt that had orangish/red letters. Lovejoy identified the sweatshirt in court. He saw it in the daylight hours and the hood was not on the defendant's head. He did not know Darlene Saunders or Demarise Williams.
The final witness for the State was Darlene Saunders. In September 1994 she was living at 54 Crown Street with her cousin Ella, the defendant, her two children, and Demarise Williams. She had been living there for two months. She and Williams were a couple and had a child together. She testified that the defendant's nickname is "Tone." She knew him through Ella and had known him for about a year. The defendant would often stay at 54 Crown Street in Ella's bedroom, the first bedroom off the kitchen. He kept his clothes and shoes there.
On September 12, 1994, Darlene was home throughout the day and the defendant was in and out of the house. After 6:00 P.M. the defendant became angry because he had an argument with Ella Saunders. They were fighting and he threw some items around the house, turned the stove over and broke a window. At around 10:00 P.M. the defendant knocked on the front door. Williams answered it and the two of them stood at the door talking. They then went onto the front porch; Darlene joined them. On the porch, the defendant was looking down the street towards the church.
Darlene testified that the defendant said, "there go a man." She could not see what he was pointing to. The defendant then ran down the hill to the church with Williams running behind him. Darlene went back into the house because she thought "they was up to no good." Back in the house, she went into her bedroom with her children. At one point, she went back on the porch and heard a sound, like a fire cracker, but did not know where it came from and did not see anything. She then went back in the house.
Williams and then the defendant came running in. Williams and Darlene went into Darlene's room. When the defendant first came in the house, he was breathing hard, talking loud, and saying "I shot — I shot the mother fucker . . . that deuce-deuce," meaning the .22 caliber gun, "make a lot of noise . . . that mother fucker was sweaty like he had just came from a gym. And I know he had money from the way he was patting his pockets." Darlene testified that the defendant did not explain what he was talking about, or tell her who he shot. She testified: "He was just — he said — he was praying. He's like God forgive me because I shot a man in front of the church."
Darlene said she wanted to go outside because the defendant said he shot somebody, and she wanted to call the police if someone was hurt. The defendant told her that if she went outside, he would kill her. After that, the defendant went to his room, closed the door and went to sleep.
Darlene further testified that on the night of the murder, the defendant was wearing black jeans and a brown and orange sweatshirt. She thought that the sweatshirt had the word "Browns" on it. The last time she saw the sweatshirt it was on the defendant the day after the shooting. On the night of the shooting, neither Darlene, Ella Saunders or Williams owned a gun. She claimed that she and Williams were no longer a couple.
Two days prior to the shooting, Darlene had a conversation with the defendant regarding the gun. The defendant wanted to purchase .22 caliber bullets and asked Darlene if she had identification with which to do so. She answered that she did not.
The day after the shooting Darlene learned that the victim had died. She told this to the defendant while they were at the house on Crown Street and he asked her who she had learned this from. She would not tell him. That was the last time she saw the defendant.
On cross-examination, Darlene testified that on September 14, 1994, the day following the shooting, after Williams was arrested, she was arrested in connection with this case. She told the police that the defendant shot the victim. She was then released from custody by the police.
Darlene was convicted of drug possession in 1990 and 1995 and of conspiracy to sell drugs in 1990. She testified that she was not drinking or using drugs on the night of the shooting and no longer uses drugs.
On redirect examination, Darlene testified that she did not talk to the State about what she would testify to and was not offered a deal in her drug case by the State in exchange for her testimony in this matter.
In its case in chief the defense called Ella Saunders. Ella testified that in September 1994 she was the tenant at 54 Crown Street. She had moved there that summer with Darlene, Darlene's two sons, and Williams. The defendant had been her boyfriend for a couple of months but did not live there. Two or three times a week, the defendant would stay overnight at 54 Crown Street. He did not keep any things at her house and he did not bring any extra clothes over. The men's clothing the police found in her room belonged to her or to her brother, who had lived with her for a couple of months. On the night of murder she was no longer living there and was not present at the apartment.
Ella further testified that when Williams and Darlene were living at the apartment, they could go wherever they wanted within it. People would go into her bedroom to watch television because it was the only one with cable service. That is why, she said, the defendant put the note on the bedroom door. There were no keys to the apartment, they would just go through the back bedroom window, or the back door. On September 13, 1994, she went to the house to check her mail. She saw Darlene with her children, but she did not go into the house. On September 14, 1994 she tried to go to the house, but the police were searching it. Between September 12, 1994 and the time of the police search, she was not in the apartment. She never saw the defendant in the "Browns" sweatshirt and she did not recognize the garment. She stated that the defendant had not been her boyfriend for some time.
On cross-examination, Ella testified that she and the defendant were on bad terms before he went to jail for the shooting and had broken up. Their relationship had started to deteriorate two weeks before the shooting, but she was not trying to end it at that time. She did not see the defendant the day before or the day of the murder. After September 12, 1994 she saw the defendant a couple of times and they were friendly. He did not ask her to testify for him and she has not talked to him. She then admitted that she had visited him in jail a couple of times some months prior to trial and that she was still friendly with him.
Ella further testified that when the defendant stayed at the house, the only room he slept in was the front bedroom. He did not have any possessions in the apartment. She did not own a gun. She never wore the sweatshirt and she has never seen it. They did not argue on the day of the murder. The defendant treated her place like his own home and came and went as he pleased. The reason she was not living there at the time of the shooting was not because she was upset with him but because she needed a break from Darlene, Williams and the children. They did not have a problem with strangers coming into the apartment and no one broke into the apartment until after September 12, 1994. She does not know whether the defendant was at the apartment on September 12, 1994.
The defense also called Pauline LeCava, a Social Service manager from the Waterbury welfare department. She testified that the defendant was collecting city welfare benefits from June 1994 to September 1994. The checks were mailed to the defendant's home at 165 Grove Street, Waterbury. On September 16, 1994, a check that had been mailed to the defendant at that address was returned to the Welfare Office by postal authorities and was stamped "moved-left no forwarding address."
In addition to the testimony, the parties stipulated that on November 9, 1994, Darlene had five misdemeanor charges pending in Superior Court and that these charges had since been resolved.
Following the close of evidence, counsel delivered their respective closing arguments to the jury. In the course of the state's opening and rebuttal remarks, the prosecutor discussed the significance of Chris Lovejoy's testimony regarding the sweatshirt, as well as the testimony as to the presence of human blood and nitrates/nitrites on the sweatshirt. Among other claims, the state suggested that the stain on the cuff of the sweatshirt was the victim's blood.
The defendant's theory of defense was that he was not the person who shot DeFillippi and that the gun and sweatshirt belonged to Williams.
So stated in defendant's appellate brief.
III CT Page 16223
Having examined the entire record, the court turns to whether the defendant is entitled under the statute to the relief he seeks.
General Statutes § 54-102kk contains a subsection mandating DNA testing upon certain findings and another subsection permitting such testing in the discretion of the court. The discretionary subsection of the statute, § 54-102kk(c), provides:
(c) After notice to the prosecutorial official and a hearing, the court may order DNA testing if it finds that:
(1) A reasonable probability exists that the requested testing will produce DNA results which would have altered the verdict or reduced the petitioner's sentence if the results had been available at the prior proceedings leading to the judgment of conviction;
(2) The evidence is still in existence and is capable of being subjected to DNA testing;
(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and
The petition before the Superior Court was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice.
There is no evidence based on which the court can find that the requested testing will in fact produce DNA results which would have altered the verdict or reduced the petitioner's sentence if the results had been available at the prior proceedings leading to the judgment of conviction. Accordingly, the discretionary portion of the statute is inapplicable.
The mandatory provision of the statute, § 54-102kk(b), provides as follows:
CT Page 16224
(b) After notice to the prosecutorial official and a hearing, the court shall order DNA testing if it finds that:
(1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing;
(2) The evidence is still in existence and is capable of being subjected to DNA testing;
(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and
(4) The petition before the Superior Court was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice.
The court finds that the evidence in question is still in existence and is capable of being subjected to DNA testing; that it was never previously subjected to DNA testing; and that the petition was filed in order to demonstrate the innocence of the defendant who is incarcerated and serving his sentence and not to delay the administration of justice. The pivotal issue is whether a reasonable probability exists — a probability sufficient to undermine confidence in the outcome — that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing in 1996. The court answers this question in the negative.
The defendant's conviction was based primarily on the testimony of Darlene and Williams, which the jury obviously credited. Darlene established the defendant's financial motive and observed him walking toward the church from the apartment. She also heard him confess to the murder soon after it was committed. Williams not only confirmed that motive but witnessed the defendant murder Defillippi. Michael Silva found the murder weapon in the bedroom used by the defendant. Chris Lovejoy, who was not shown to have any bias and whose credibility was not impeached, testified that he saw the defendant wearing the "Browns" sweatshirt the day before the murder. Criminologist Patricia Johannes testified that the sweatshirt had gunpowder residue on the cuffs and waistband.
The defendant fled to another state, from which, in the absence of any credited explanation, the jury could infer consciousness of guilt. See, e.g., State v. Scott, 270 Conn. 92, 104-07, 851 A.2d 291 (2004). Not only did Williams not flee but he gave a statement to the police soon after the shooting inculpating the defendant. Ella, the defendant's principal witness, claimed not to have been living in the apartment at the time of the shooting and testified that she was not at the apartment the day of the shooting. Moreover, no other witness put her at the apartment that day.
That the cuff of the sweatshirt was stained with blood was in evidence and, to be sure, the state sought to have the jury draw an inference that the blood stain was the victim's. However, the jury was also aware from the evidence adduced by the state that the type of blood or from whom it was derived could not be ascertained. DNA testing would remove any improper speculation that the blood was that of the victim, but it would not diminish the strength of the state's case, that was firmly based in eyewitness, exhibits and reasonable inferences therefrom.
The blood stain on the cuff of the sweatshirt was not unimportant at the defendant's trial. However, as the Supreme Court has observed in the context of Brady claims of suppressed evidence, "courts `must avoid concentrating on the suppressed evidence in isolation. Rather, we must place it in the context of the entire record. Evidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory. Implicit in the standard of materiality is the notion that the significance of any particular bit of evidence can only be determined by comparison to the rest.'" State v. Shannon, 212 Conn. 387, 399-400, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S.Ct. 510, 107 L.Ed.2d 512 (1989), quoting Trujillo v. Sullivan, 815 F.2d 597, 613 (10th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987). Even if it were shown through DNA testing that the blood did not belong to DeFillippi, that additional fact would not undermine confidence in the verdict, given the wealth of evidence against the defendant. Otherwise stated, there is no reasonable probability that the petitioner would not have been prosecuted or convicted had "exculpatory" results been obtained through DNA testing. Therefore, the defendant has failed to satisfy the requirements of General Statutes § 54-102kk(b)(1).
Indeed, it is a fair question as to whether the defendant's claim in his petition falls within the ambit of "exculpatory results" required by Genera Statutes § 54-102kk(b)(1). The Second Circuit has held that evidence is exculpatory if it "could have helped the defense suggest an alternative perpetrator." Boyette v. LeFevre, 246 F.3d 76 (2d. Cir. 2001). Other jurisdiction have employed other tests or definitions. See, e.g. United States v. Uphoff, 907 F.Sup. 1475, 1479 (D.Kan. 1995) (In the Tenth Circuit, evidence is exculpatory if it is favorable.); Baker v. State, 142 Idaho 411, 422, 128 P.3d 948 (App. 2005) (Evidence is exculpatory if it tends to clear an accused of alleged guilt, excuses the actions of the accused, or tends to reduce punishment.); State v. Johnson, 120 Idaho 408, 411, 816 P.2d 364, 367 (Ct.App. 1991); State v. Roles, 122 Idaho 138, 150, 832 P.2d 311 (App. 1992) (Evidence is exculpatory if it would have created a reasonable doubt of guilt that did not otherwise exist, had it been known.); Land v. State, 802 N.E.2d 45, 49 (Ind.Ct.App. 2004), trans. denied, (Evidence is exculpatory if it is "[c]learing or tending to clear from alleged fault or guilt; Excusing."); State v. Carmichael, 240 Kan. 149, 727 P.2d 918, 923 (1986) (Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment.); Commonwealth v. Gallarelli, 399 Mass. 17, 20, (1987) 502 N.E.2d 516 (1987) (evidence is "exculpatory" if it tends to negate the guilt of the accused.); State v. Johnson, CT Page 16229 120 Idaho 408, 411, 816 P.2d 364, 367 (Ct.App. 1991) (For purposes of evaluating a claimed Brady violation, evidence is exculpatory if it "tends to clear an accused of alleged guilt, excuses the actions of the accused, or tends to reduce punishment."); State v. Johnson, 258 Kan. 475, 486, 905 P.2d 94 (1995) (Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment.); Knight v. Commonwealth, 18 Va.App. 207 (1994) 443 S.E.2d 165 (1994) (Evidence is exculpatory if it is favorable to the accused and material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.); State v. Carmichael, 240 Kan. 19, 727 P.2d 918, 923 (1986); ("Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment."); People v. Williams, 7 N.Y.3d 15, 25, 849 N.E.2d 962, 816 N.Y.S.2d 739 (2006) (Evidence is exculpatory if it exonerates the accused, or points to the innocence of the accused.); People v. Hendrix, 2 Misc.3d 447, 454, 820 N.Y.S.2d 411 (2006) (Under the first component of Brady, evidence s exculpatory if it has "a direct bearing on the issue of the defendant's guilt or Innocence."); State v. Lewis, 70 Ohio App.3d 634 (1990) (Evidence is not materially exculpatory if it is merely potentially useful to the defense.); Ex Parte Dixon, 964 S.W.2d 719 (Tex.App.-Fort Worth 1998) (Evidence is exculpatory if it tends to excuse or clear the defendant from the alleged guilt.); Black's Law Dictionary, 566 (6th ed. 1990), cited in Riley v. State, 953 S.W.2d 354 (Tex.App.-Austin 1997) (Evidence is exculpatory if it tends to excuse or clear the defendant from guilt.); Martinez v. Commonwealth, 42 Va.App. 9, 590 S.E.2d 57 (2003) (Evidence is exculpatory if it is favorable to the accused). The court has assumed that it does.
The petition is denied.