State v. Brown

BERDON, J.,

dissenting. The majority today commits a grave injustice by misconstruing the trial record and by concluding that the defendant is not entitled to a new trial despite the discovery of exculpatory evidence that was not available during trial. I disagree with the majority’s conclusion that the trial court properly denied the defendant’s motions for a continuance and for a mistrial when the defendant sought to conduct *473deoxyribonucleic acid (DNA) testing on seminal stains found on the blue jeans worn by the victim at the time of the assault, when the whereabouts of the jeans were discovered for the first time during the trial. Furthermore, I disagree with the majority’s conclusion that the trial court properly denied the defendant’s motion for a new trial once the results of the DNA testing became available following the trial.1

I

In my view, when the defendant advised the trial court of the state’s discovery of the jeans worn by the victim at the time of the assault, the trial court should have granted the defendant’s motion for a continuance or, in the alternative, should have granted the motion for a mistrial, in order for the defendant to obtain the results of DNA testing on the seminal stains found on *474the crotch area of the jeans. I recognize that the granting of a continuance is generally a matter of discretion; State v. Haye, 214 Conn. 476, 483, 572 A.2d 974 (1990); but when the defendant’s constitutional rights to present a defense and to a jury trial are implicated, that discretion either evaporates or is severely limited. The sole issue in the trial was one of identification and this objective identification DNA evidence was crucial. Although I can understand the trial court’s concerns that this was a crime that occurred in 1983, that there previously had been a mistrial at the request of the state because of the unavailability of the victim,2 and that the victim had already testified in this trial, these concerns pale in comparison to the deprivation of the defendant’s constitutional rights and the subsequent loss of his liberty for fifty-one years — the sentences he received in this case.

The results of the DNA testing that was eventually performed by the Federal Bureau of Investigation (FBI) and that was available to the trial court when it decided the defendant’s motion for a new trial are not disputed. The DNA testing was performed on two cuttings containing seminal stains taken from the jeans. The testing consisted of restriction fragment length polymorphism (RFLP) tests, which are highly specific, and polymerase chain reaction (PCR) tests, which are less specific, but still reliable. Although there were no results on the first cutting under the RFLP test because the seminal stain was insufficient or too degraded,3 the PCR test did produce results. The PCR test on the first cutting revealed that the defendant could not be excluded as the depositor of the semen, nor could the victim’s husband, who at the time of the assault had been her boyfriend, or 20 percent of the population. The PCR test on the second *475cutting, however, did exclude the defendant as a possible depositor of the semen. The following chart, set forth in the defendant’s brief, summarizes these tests:

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Although the testing results on the first cutting could not exclude the defendant as a possible depositor, the testing results on the second cutting clearly exonerated him as the depositor of that semen.

The majority concludes that the trial court properly denied the defendant’s motion for a continuance essentially by performing its own fact-finding. Specifically, the majority states that “[t]he first relevant fact before the trial court was that the seminal fluid protein found on the jeans logically could not be connected to the sexual assault in issue.” The trial court, however, never made this finding, and the majority fails to demonstrate where, in the record, the trial court took this into consideration. Indeed, the reason that the trial court did not make this finding is simple. If it were known that there were seminal stains on the jeans the victim was wearing and that one of the stains was exculpatory, both the state and defense counsel would have focused the examination of the victim on whether the exculpatory stain could have been deposited during the encounter. If that had occurred, there would have been a record in order to determine whether the jeans were in such *476proximity to the assailant that the stain could have been deposited during the incident.4

Furthermore, the majority claims that, “[a]t the time that it ruled on the defendant’s final request for a continuance, the trial court had no information before it indicating whether DNA testing was possible or whether such testing would shed any light on the defendant’s guilt or innocence. ” Contrary to the majority’s assertion, the state and defense counsel both agreed that it was possible to perform testing on the seminal stains.5 Finally, the majority rationalizes its conclusion that the trial court properly denied the motion for a continuance in light of the amount of time necessary to complete the testing, stating that “[t]he defendant himself estimated that it would take twenty-one days for ‘preliminary’ DNA testing and three months for ‘full-blown’ *477DNA testing.” In fact, defense counsel argued for, at a minimum, a continuance for two to three days in order to perform subgrouping tests, claiming that “[i]t would seem to me that, as a matter of two to three days, rather than twenty-one days for preliminary DNA testing, or the three months for a full-blown DNA testing, that it would be worth, in the interest of justice, taking those two to three days to see what the results of that testing would be.”6

This is not a case of a defendant who sought a continuance because of some failure on his part to muster the evidence or as a result of any other personal responsibility for the delay, but, rather, he sought the continuance because of the state’s negligence. It was during the defendant’s trial that the state disclosed, for the first time, that the jeans the victim was wearing when she was assaulted were discovered, and that those jeans showed a positive finding of semen. Therefore, in my view, the motions for a continuance and for a mistrial must be viewed through the lens of the state negligently failing to produce the jeans prior to trial, and thereby denying the defendant an opportunity to perform DNA testing.

Not only was the defendant deprived of his constitutional rights to a jury trial and to present a defense; see part II of this dissent; but he was also deprived of his statutory rights. General Statutes § 54-86k (a) provides in relevant part that DNA testing “shall be deemed to be . . . reliable scientific . . . evidence [and] may be admitted to prove or disprove the identity of any person.”7 Indeed, this court has held that the results of *478DNA testing can be compelling evidence in a case. See State v. Hammond, 221 Conn. 264, 279, 604 A.2d 793 (1992) (“[b]lood typing tests, at least insofar as they exclude someone from sexual contact, are generally acknowledged to be absolutely reliable when the sample is not contaminated”). Irrespective of which standard of review is to be applied, the trial court improperly denied the motion for a continuance or the alternative motion for a mistrial.8

Moreover, the trial court improperly refused to grant a new trial once the results of the DNA testing became available subsequent to the jury verdict finding the defendant guilty. The majority, in its recitation of the hearing on the motion for a new trial, takes trial defense counsel's comments out of context and disregards the plain language of the parties’ stipulation regarding the results of DNA testing performed on the two cuttings taken from the victim’s jeans. The majority disingenuously states that “[t]he results of those tests revealed that the defendant could not be excluded as the depositor of the fluid on the first cutting from the stained area, but that he could be excluded as the depositor of *479the fluid on the second cutting.” (Emphasis added.) In fact, the stipulation entered into by the defendant and the state provide in relevant part that “[t]he defendant is excluded as being a possible donor of the DNA detected in the seminal stain found in the second cutting.”9 (Emphasis added.) Indeed, the plain language of the stipulation reflects that the results of the DNA testing were clearly exculpatory.

The majority, however, asserts that defense counsel conceded that the testing results were not exculpatory. This simply is not the case. In explaining the significance of the stipulation, defense counsel stated: “I think that what this stipulation that we’ve offered to Your Honor essentially boils down to mean — and if I thought that it meant more or less, I would suggest that we probably needed expert testimony — I am satisfied, after my discussions with [both an FBI agent], Elaine Pegliaro from the state lab, as well as talking to people from the Life Codes lab, that the work that the FBI did is certainly acceptable to the defense — and that the bottom line is an inconclusive result. This does not exonerate [the defendant]. It does not identify [the defendant] as being the depositor of that stain. I think that, essentially, that’s what our stipulation means and should mean to you.”10 (Emphasis added.) Taking into consideration defense counsel’s argument to the trial court *480together with the clear language of the stipulation, it becomes clear that defense counsel must have meant that the DNA testing on the first cutting did not exonerate the defendant because it did not exclude him, the victim, the victim’s husband or 20 percent of the population. But, clearly, the testing on the second cutting excluded the defendant and, for this reason, it was exculpatory.

The majority attempts to make much of the fact that defense counsel characterized the DNA testing results as “inconclusive.” According to the majority, because defense counsel stated that the results were inconclusive, the results are therefore inadmissible and of no value. The majority, however, simply misses the point. Defense counsel obviously recognized that the results were inconclusive as to the defendant’s guilt or innocence because the seminal stain on the second cutting could have been deposited by a third party. This, however, does not mean that the testing results could not raise a reasonable doubt with a jury with respect to whether the defendant was the perpetrator of the crime.11

The majority further justifies the denial of the motion for a new trial because of defense counsel's alleged concession before the trial court that he would not have attempted to introduce the results of the DNA testing *481into evidence anyway. Contrary to the majority’s recitation of the proceedings, defense counsel actually stated that he would not have proffered the evidence because he would have expected that the prosecution would have done so as part of its case-in-chief: “Well, I would suggest, first of all, that, in all probability, it would not — this evidence would not have been proffered by the defense. It would have been proffered by the state.” (Emphasis added.) Furthermore, when the trial court attempted to have defense counsel explain what might have happened had the results been available, the following colloquy occurred:

“The Court: But, in any event, you agree with me the defense would not have proffered this evidence, had it been available to the defense in July of 1993.

“[Defense Counsel]: I can’t say that.

“The Court: Oh, I’m sorry.

“[Defense Counsel]: I simply don’t know. I simply don’t know. I suspect — if everything had gone as had gone, I suspect not. But I — that’s real hard to know. And it’s just as if — it’s real hard to know what questions I would have asked [Sanders Hawkins, the state’s chief toxicologist], if any, concerning this evidence, with this information — you know, armed with this information. I mean, clearly, in this case, the defense was misidentification and the defense was that this was not [the defendant] — and this was not [the defendant’s] stain. And so it’s real hard for me to call those shots now, except with regard to how we saw the evidence come in.

“So I suspect that, yes, if that scenario took place, that it probably would not be likely that the defense would proffer it. But I think that the state would. I really do.”12

*482Nevertheless, even if defense counsel’s statements could be construed as a concession that he would not have proffered the evidence, a new trial is still required. In my view, any agreement by defense counsel that he would not have attempted to proffer the testing results would be one of those “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings”; (internal quotation marks omitted) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995); and, therefore, constitutes plain error.13 Indeed, if defense counsel had represented to the trial court that he would not have sought to introduce the exculpatory DNA evidence, it would have gone beyond plain error— it would have been, based upon the record before us, damned foolishness.

II

The trial court’s failure to grant a continuance, a mistrial or a new trial deprived the defendant of his right to present a defense and to a jury trial under the sixth amendment to the federal constitution. “The United States Supreme Court has made it clear that the right of an accused to present testimony that is relevant and material may not be denied arbitrarily. Washington *483v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).” State v. Porter, 241 Conn. 57, 161, 698 A.2d 739 (1997) (Berdon, J., concurring and dissenting).

In Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993), the United States Supreme Court stated, in a unanimous decision, that the sixth amendment right to a jury trial is “ ‘fundamental to the American scheme of justice,’ ” and, therefore, is applicable to the states. The court further held: “The right includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty.’ ” Id.; see also State v. Hines, 187 Conn. 199, 210, 445 A.2d 314 (1982) (“ ‘[i]t must always be borne in mind that litigants have a constitutional right to have issues of fact decided by the jmy and not by the court’ ”). The court in Sullivan emphasized that “ [i]t would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine . . . whether he is guilty beyond a reasonable doubt.” Sullivan v. Louisiana, supra, 278. In the present case, however, that is essentially what happened: the jury heard some of the evidence and decided guilt, and then the judge heard the additional evidence relating to the DNA testing results. This precluded the jury from hearing this clearly exculpatory evidence. This, in my view, does not satisfy the defendant’s sixth amendment right to a jury trial.

Moreover, as the court in Sullivan held, harmless error analysis would be inapplicable. “Harmless-error review looks, we have said, to the basis on which ‘the jury actually rested its verdict.’ . . . The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty *484verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee.” (Citations omitted.) Id., 279. In the absence of a proper jury verdict — which in this case means a verdict rendered by a jury that also heard the evidence relating to the DNA testing results — “[t]here is no object, so to speak, upon which harmless error scrutiny can operate.” Id., 280. “There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless.” Id.14

The trial court in this case denied the defendant the opportunity to present to the jury the exculpatory evidence of the DNA testing results. Because the trial court’s denial is presumptively prejudicial to the defendant, and because harmless error review is not applicable, a new trial is required.15 I would affirm the judgment *485of the Appellate Court and remand the matter for a new trial.

Accordingly, I dissent.

agree with Justice McDonald, in his concurring and dissenting opinion, with respect to his assertion that this court should not reach the question of whether the trial court properly denied the defendant’s motion for a new trial because the parties have not had the opportunity to brief this issue fully before this court. Indeed, this court certified this appeal, limited to the following question: “Did the Appellate Court properly conclude that (1) the trial court abused its discretion in denying the defendant’s motion for a continuance for DNA testing, and (2) the error was so prejudicial that it denied the defendant a fair trial?” (Emphasis added.) State v. Brown, 238 Conn. 901, 677 A.2d 1376 (1996). In other words, the court today reaches the issue regarding the defendant’s motion for a new trial despite the fact that the issue was neither addressed in the parties’ briefs submitted to this court nor during oral argument. Simply put, “the majority of this court has deprived the defendant of his fundamental right of due process to be heard before this court ‘in a meaningful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965).” State v. Chapman, 229 Conn. 529, 556, 643 A.2d 1213 (1994) (Berdon, J., dissenting). Nevertheless, because the majority reaches and decides this issue on the merits, I am compelled to express my disagreement with the majority’s conclusion.

The majority professes to reach this issue “[i]n the interests of judicial economy . . . .” Curiously, the majority’s resolution of this issue turns the principle of judicial economy on its head in light of the fact that this case surely will return to the judicial system on a meritorious petition for a writ of habeas corpus as a result of this court’s implicit finding of ineffective assistance of trial counsel. See footnote 11 of this dissent.

See footnote 8 of this dissent.

The RFLP test also was not performed on the second cutting because it was assumed that the DNA would be insufficient or too degraded.

It amazes me that the majority fails to understand how a male could have sexual intercourse on a bed and then drop semen on the victim’s clothing next to the bed after ejaculation and withdrawal. See footnote 15 of the majority opinion.

Specifically, the state’s attorney pointed out that, besides the blood grouping tests that were performed, “[t]here are additional tests that can be done, but we’re talking a minimum of two days, and that is the grouping which just boils down to — there are twenty-one subgroupings of blood types, some can be as high as 12 percent, some as low as 2 percent. That test would take a minimum of two days, probably three, and we have not done anything with respect to DNA yet. It is my understanding that the process has to be begun and, at some point in the process, they can make a determination, if there is a sufficient sample, or sufficient material within the sampling to do a DNA test, but that would also take some time.”

Furthermore, defense counsel stated: “I think that we have gotten to a point where, number one, we know that there is at least some testing that can be done on the blue jean item that tested for a semen stain. We also know that within two to three days we could very likely have a more reliable testing done that might further break down the blood typing. So that what we know is that it’s possible that within two to three days there could be a test which would exclude [the defendant] as a possibility here.

“It would seem to me that, as a matter of two to three days, rather than twenty-one days for preliminary DNA testing, or the three months for a full-blown DNA testing, that it would be worth, in the interest of justice, taking those two to three days to see what the results of that testing would be.”

The record does not reflect that the subgrouping test was ever performed in light of the trial court’s denial of the request for a continuance.

General Statutes § 54-86k provides in relevant part: “Admissibility of results of DNA analysis, (a.) In any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific technique and the evidence of a DNA profile comparison may be admitted to prove or disprove the identity of any person. This section shall not otherwise limit *478the introduction of any relevant evidence bearing upon any question at issue before the court. The court shall, regardless of the results of the DNA analysis, if any, consider such other relevant evidence of the identity of the accused as shall be admissible in evidence.

“(b) If the results of the DNA analysis tend to exculpate the accused, the prosecuting authority shall disclose such exculpatory information or material to the accused in accordance with section 54-86c. . . .”

It is paradoxical that the state previously had been granted a mistrial because it did not have its evidence available — that is, the victim was not available to testify, whereas, in this trial, the trial court denied the defendant’s motion for a mistrial when the defendant was unable to produce all of his evidence because of the state’s negligence in’ not producing the victim’s jeans. Furthermore, I note that, although the issue is not before us, in the absence of the defendant’s consent to a new trial, the first mistrial would raise serious questions with respect to the constitutional prohibition against double jeopardy. See State v. Buell, 221 Conn. 407, 413-14, 605 A.2d 539, cert. denied, 506 U.S. 904, 113 S. Ct. 297, 121 L. Ed. 2d 221 (1992) (“[j]eopardy attaches once the jury has been selected and sworn”).

The parties’ stipulation provides in relevant part:

“5. The defendant is excluded as being a possible donor of the DNA detected in the seminal stain found in the second cutting.

“6. The defendant cannot be excluded as a donor of the DNA detected in the stain in the first cutting.

“7. The defendant is among six groups of people having alleles with a DNA DQ Alpha Type 2. The frequency of these subgroups in the Caucasian population totals approximately 20 percent.”

General Statutes § 54-86k (a) establishes not only the admissibility of DNA testing results, but also provides that “[t]he court shall, regardless of the results of the DNA analysis, if any, consider such other relevant evidence of the identity of the accused as shall be admissible in evidence.” See footnote 7 of this dissent.

Contrary to the majority’s assertion; see footnote 24 of the majority opinion; I express no dissatisfaction with defense counsel’s representation to the trial court that the testing was inconclusive — in fact, defense counsel’s statement is entirely accurate with respect to the defendant’s guilt or innocence based on the results of the DNA testing. I mention ineffective assistance of counsel in footnote 1 of this dissent, not on the basis of what defense counsel did or did not do at trial, but, rather, on the majority’s mischaracterization of the defense. Simply put, if defense counsel had conducted the defense in the manner characterized by the majority, that is, by conceding that the results of the DNA testing were not exculpatory and that he would not have proffered those results, that would serve as the basis for a claim of ineffective assistance of counsel.

Indeed, the confusion concerning defense counsel’s remarks strongly supports Justice McDonald’s concurring and dissenting opinion in which he states that this court should not decide the issue regarding the motion *482for a new trial without the benefit of complete briefing. See footnote 1 of this dissent. This iryustice to the defendant is underscored by the fact that the majority interprets defense counsel’s comments to the trial court by “presuming” what defense counsel’s conversations with the experts entailed. See footnote 24 of the majority opinion.

The majority states that, even if the defendant were allowed to “switch” his argument regarding the testing results on appeal, the defendant is nevertheless unable to demonstrate an abuse of discretion. The majority reaches this conclusion by determining, in hindsight and with allegedly unassailable acumen, that the seminal stains found on the victim’s jeans could notpossibly have been deposited by the defendant. In my view, the majority is simply acting as a thirteenth juror — a role that is not within the province of this court.

In Sullivan, the court further recognized another mode of analysis that would lead to the same conclusion that harmless error analysis would not apply. The court noted that, in Arizona v. Fulminante, 499 U.S. 279, 307, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991), a distinction was drawn between “structural defects in the constitution of the trial mechanism, which defy analysis by harmless-error standards,” and trial errors that occur “during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented . . . .” (Internal quotation marks omitted.) Sullivan v. Louisiana, supra, 508 U.S. 281. The court concluded: “Denial of the right to a jury verdict of guilt beyond a reasonable doubt is certainly an error of the former sort, the jury guarantee being a basic protectio [n] whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function .... The right to trial by jury reflects, we have said, a profound judgment about the way in which law should be enforced and justice administered. . . . The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error." (Citations omitted; internal quotation marks omitted.) Id., 281-82.

Even if the defendant were required to show prejudice, the wrongful exclusion of the evidence of the DNA testing results is clearly prejudicial. Although it is not conclusive because the seminal stain could have been deposited by another male, it is clearly powerful exculpatory evidence in a case in which, as here, the sole issue is one of identification.