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DANIEL CARTER v. STATE OF CONNECTICUT

(AC 36184)

Sheldon, Mullins and Harper, Js.

Argued February 18—officially released August 11, 2015

(Appeal from Superior Court, judicial district of New

Haven, Young, J.)

Damon A. R. Kirschbaum, with whom, on the brief,

were Vishal K. Garg and Kevin W. Munn, certified legal
intern, for the appellant (petitioner).

Rocco A. Chiarenza, assistant state’s attorney, with

whom, on the brief, were Michael Dearington, state’s

attorney, and David Clifton, assistant state’s attorney,

for the appellee (respondent).
Opinion

SHELDON, J. The petitioner, Daniel Carter, appeals

from the judgment of the trial court dismissing his petition for a new trial, in which he challenged his conviction for aggravated sexual assault in the first degree in

violation of General Statutes § 53a-70a (a) (1), attempt

to commit aggravated sexual assault in the first degree

in violation General Statutes § 53a-49 (a) (2) and § 53a70a (a) (1), kidnapping in the first degree in violation

of General Statutes § 53a-92 (a)(2)(A), and commission

of a class A, B or C felony with a firearm in violation

of General Statutes § 53-202k on the ground of newly

discovered DNA evidence. The narrow issue before this

court is whether the trial court properly determined

that the mode of DNA testing available at the time of

the petitioner’s criminal trial in 1996, the Polymarker

and DQ-Alpha test (Polymarker/DQ-Alpha test), could

have been utilized to eliminate the petitioner as a possible contributor of DNA to certain biological evidence

found at the crime scene, thus preventing the petitioner

from establishing that the exculpatory results of more

recent DNA testing of such evidence by the Short Tandem Repeat (STR) method in 2008 constitute newly

discovered evidence. We conclude that the petitioner

failed to show that the DNA results from the STR testing

constitute newly discovered evidence and, therefore,

affirm the judgment of the trial court.

The following facts from the petitioner’s criminal trial

and procedural history are relevant to this appeal. The

petitioner’s conviction stemmed from a kidnapping and

sexual assault that occurred in the early morning hours

of May 24, 1995. At the time of the incident, the victim,

a self-identified chronic drug abuser, was battling a

$300 a day crack cocaine habit. To support her habit,

the victim frequently stole and engaged in prostitution.

On May 24, 1995, at approximately 2 a.m., the victim

left the apartment she shared with her fiance ́ in the

Fair Haven section of New Haven to purchase and

smoke crack cocaine. She had last smoked crack

cocaine around 1:30 a.m. and was craving more. The

victim had walked about four blocks when she saw

a man in a burgundy car ‘‘driving around [her].’’ She

approached the car, and the man, who had his window

open, offered her a ride. The area was illuminated by

streetlights, and thus she was able to see the man’s

face. He was a black male, heavy set, with thick glasses,

very short hair, and a ‘‘little mustache.’’ He said his

name was ‘‘Devon.’’

The victim got into the car, and the man agreed to

take her to Quinnipiac Avenue. Shortly thereafter, he

said he had to make a quick stop. He stopped the car

on Bailey Street, sat back in his seat, and reached down

and pulled out a ‘‘big black gun.’’ The victim heard a

clicking noise, which she immediately recognized as

the sound of a gun being cocked. The man put the gun
to the victim’s head and told her that if she did what

he said, he would not harm her. He ordered the victim

to perform oral sex on him. Fearing for her safety, she

did so. After a few minutes, he told the victim to remove

her pants. The victim partially disrobed, removing one

of her pant legs. The man, still holding the gun to the

victim’s head, penetrated her vaginally with his penis.

He told the victim to turn over, and then he attempted

to penetrate her anally. The victim testified that ‘‘it was

hurting so bad, I started to holler and cry real loud.’’

He stopped, told the victim to stop crying, and handed

her some tissues from a tissue box on the backseat of

the car to wipe her eyes. He then penetrated the victim

vaginally a second time and ejaculated inside her.1 When

he had finished assaulting the victim, he got off of her,

put the gun down, wiped his penis off with tissues from

the backseat, and threw them out of the car window.

After he had zipped up his pants, he drove down the

street, took a right, and dropped the victim off at the

corner at her request. He then backed his car all the

way up the street, and left.

The victim, who had a criminal record and was on

probation, did not initially report the incident to the

police. Instead, she went home, showered, and went to

bed. The next morning, the victim met with her probation officer, Lisa D’Amato, at the Office of Adult Probation in New Haven.2 As the victim was exiting D’Amato’s

office, she saw a man in the hallway whom she immediately recognized as the man who had sexually assaulted

her. The victim went back into D’Amato’s office and

told her that she had been raped and that she had just

identified the man who had done it. D’Amato contacted

the police, and the victim went home, where she was

interviewed by Officer Martin D’Adio of the New Haven

Police Department. Shortly thereafter, the victim gave

D’Adio descriptions of her assailant and his vehicle.

She described the vehicle as a red, two door sedan.

The victim later identified the petitioner in a showup

identification conducted on the street outside of the

probation office. The police located the petitioner’s

vehicle parked on State Street, across from the probation office. The victim accompanied police officers to

that location, where she identified the vehicle as that

driven by her assailant. The victim told D’Adio that he

would find a box of tissues on the backseat of the

vehicle. When D’Adio looked inside the vehicle, he confirmed that there was a box of tissues on the backseat.

The victim then directed D’Adio to the location where

the assault allegedly had taken place. The victim

pointed out several tissues soiled with fecal matterlying

on the ground, and identified them as the tissues that

the petitioner had used to wipe himself off with following the assault. D’Adio seized the tissues and bagged

them as evidence.3

D’Adio then drove the victim to Yale-New Haven Hospital, where she was treated for sexual assault. A foren-
sic examination was performed and biological evidence

for a rape kit was collected. The victim reported to

attending medical personnel that she had been raped,

anally, orally and vaginally, at gunpoint.

The police later executed a search warrant at the

petitioner’s home, where they seized a black, semiautomatic handgun and a magazine from the second drawer

of a bureau in the bedroom. The petitioner’s wife testified that the handgun was in the drawer when the petitionerleft for work on the evening of the alleged assault,

and that it was still in the drawer at 2 a.m. The petitioner’s car also was seized. Detective Christopher Grice

testified concerning the forensic investigation of the

petitioner’s vehicle. Grice testified that he had lifted a

latent print from the exterior passenger side door of

the vehicle that was consistent with the victim’s right

thumbprint. Detective Robert Benson also examined

the print and confirmed the identification.

The petitioner agreed to be interviewed by the police.

The petitioner stated that he had been working at the

Howmet Corporation in North Haven on the morning

of the assault. A subsequent check by the police of

the petitioner’s employmentrecords, however,revealed

that he had clocked out of work at 1:44 a.m. on May

24. The petitioner’s supervisor at Howmet, Steve Nilsen,

related to the police that, on that day, the petitioner

had told him that his mother-in-law had died suddenly,

and therefore that he was needed at home. Nilsen did

not see the petitioner for the remainder of the shift. The

police subsequently determined, after speaking with the

petitioner’s wife, that his mother-in-law was still alive

and living in Hartford. When confronted by the police

about his employment records—specifically, his

recorded 1:44 a.m. departure time—the petitioner maintained that he had been at work for his full shift on

May 24, and suggested that he must have forgotten to

clock back in after his break. Unprompted, the petitioner further offered that, on the day of the assault,

he had had sexual intercourse with an old friend named

Charmilla Brooks. He stated that this sexual encounter

took place in the front seat of his vehicle at a McDonald’s restaurant around 10 a.m. Police investigators

were unable to locate a person named Charmilla

Brooks.

Beryl Novitch, a biochemist with the Connecticut

Forensic Science Laboratory (laboratory), was called

as a defense witness. Novitch testified concerning her

examination of the biological samples collected by medical personnel who treated the victim for sexual assault,

the soiled tissues collected at the crime scene, and the

tissue box found on the backseat of the petitioner’s

vehicle. Novitch testified that the tests she performed

on these items did not detect the presence of spermatozoa or seminal fluid. She was able to detect the presence

of fecal matter on the tissues found at the crime scene.
On cross-examination, the prosecutor elicited testimony that the waffle design on the soiled tissues did

not match the waffle design on the tissues found in the

open tissue box in the petitioner’s vehicle. Although

the difference in the waffle design was not highlighted

for the jury in the state’s closing argument, the prosecutor did argue, consistent with D’Adio’s testimony, that

the soiled tissues at the crime scene had been collected

by the police out of prudence, even though it could not

be determined whether they had any connection to

the assault.4

On the basis of the previously described evidence,

the jury found the petitioner guilty of two counts of

aggravated sexual assault in the first degree, attempt

to commit aggravated sexual assault in the first degree,

kidnapping in the first degree, and commission of a

class A, B or C felony with a firearm. The courtrendered

judgment in accordance with the jury’s verdict and

imposed a total effective sentence of seventy years

incarceration. This court affirmed the petitioner’s conviction in a per curiam decision; see State v. Carter, 45

Conn. App. 919, 696 A.2d 1322 (1997); and our Supreme

Court denied certification to appeal. State v. Carter,

243 Conn. 911, 701 A.2d 334 (1997).

In 2008, the petitioner filed a consent petition pursuant to General Statutes § 54-102kk,5

requesting that the

soiled tissues recovered at the crime scene be subjected

to DNA testing. Neither the state nor the defense had

requested DNA testing in 1995 or 1996. Based on the

results of the DNA testing, which excluded the petitioner as a possible contributor of DNA to the biological

material on the tissues, the petitioner filed the present

petition for a new trial pursuant to General Statutes

§ 52-270. His petition was based on a claim of newly

discovered evidence, which was supported by allegations that ‘‘[t]he DNA testing procedures used for casework by the Connecticut Forensic Science Laboratory

before June 6, 1996, would not have been capable of

identifying DNA profiles from the biological material

recovered from the tissues.’’ The petitioner further

alleged, on that basis, that ‘‘the results of the DNA

testing are newly discovered evidence that was not

discoverable or available at the time of the original

trial.’’

A hearing on the petition was held on March 6, 2013.

The petitioner presented the testimony of a single witness, Dr. Carll Ladd, a senior supervisor assigned to

the DNA unit at the laboratory. Ladd testified about

the following: the manner in which DNA evidence is

currently collected and analyzed at the laboratory using

the STR method; the results of DNA testing of the evidence samples collected in the petitioner’s case using

the STR method; and the likely results of DNA testing

of such evidence samples using the Polymarker/DQAlpha method, had such testing been conducted at the
time of the underlying criminal investigation and the

petitioner’s resulting criminal trial in 1995 and 1996,

respectively.

According to Ladd’s testimony, both STR testing and

Polymarker/DQ-Alpha testing rely on a technique

known as Polymerase Chain Reaction (PCR), which

enables examiners to take a very small sample of biological evidence from a crime scene and amplify it in volume to create a usable quantity of testable DNA. Both

procedures involve four common steps. The first step,

extraction, is the isolation of the DNA from the biological material in the evidence sample, and the isolation

of the DNA from the exemplartaken from the individual

whose DNA is being compared to the DNA of unknown

origin. The second step is quantitation, which is the

process by which the amount of available DNA is determined. The third step is amplification, a sort of ‘‘molecular xeroxing’’ process that enables examiners to

duplicate the available DNA in the evidence sample to

facilitate an identification.6

In the fourth step of the

procedure, the PCR products that have been generated

are separated on the basis of their size, and a DNA

profile is created. The same technique is applied to the

DNA of known origin, and the two profiles are then

compared. If the genetic markers on the known DNA

profile and the unknown DNA profile are identical,

there is a ‘‘match,’’ and the known individual is included

as a possible source of the unknown DNA. If there is

no match, the DNA samples are considered to be from

different sources, and the known individual is excluded

as a potential contributor to the evidence sample.

At the time of the petitioner’s criminal trial, the DNA

unit at the laboratory used the Polymarker/DQ-Alpha

test. This PCR based testing process generated a DNA

profile using DNA sequences from six locations, or loci,

on the DNA molecule. The Polymarker/DQ-Alpha test

had a random match probability of approximately 1 in

3000, which means that the expected frequency with

which the DNA profile of an individual selected at random would match the DNA profile generated from the

tested sample was approximately 1 in 3000.

In 1999, a more sophisticated form of PCR based

testing, known as STR testing,replaced the Polymarker/

DQ-Alpha test. STR testing determines the numbers of

short repeat sequences that appear in tandem at fifteen

different loci on the DNA molecule. DNA of unknown

origin, the evidence sample, is amplified using PCR,

and a DNA profile is generated based upon the number

of short tandem repeats that appear at each locus.

Because the DNA profile is generated based upon data

from fifteen loci on the DNA molecule, STR testing is

more discriminating than preexisting testing methods

such as the Polymarker/DQ-Alpha test that examined

data from fewer DNA loci. STR testing enables examiners to obtain results with less genetic material than
earlier testing methods made possible. Thus, for example, whereas Polymarker/DQ-Alpha testing required 100

copies of the DNA molecule to create a usable DNA

profile, STR testing can produce a usable profile with

only ten copies of the DNA molecule.

With both STRtesting and Polymarker/DQ-Alpha testing, the DNA profile that is generated from the evidence

sample is compared to the DNA profile generated from

a sample of known origin, and that comparison is used

to determine whether the source of the known sample

must be excluded or can be included as a possible

source of the evidence sample of DNA. Because STR

testing is far more discriminating, in optimal cases, the

random match probability is less than 1 in 7 billion, a

figure chosen because it is the estimated human population living on the earth.7

In the petitioner’s case, five evidence samples were

taken from the tissues recovered at the crime scene

and analyzed using STR testing. Four of these samples

contained enough genetic material to generate a usable

DNA profile. The DNA profile generated from these

four samples was compared to the petitioner’s DNA

profile, and he was excluded as a possible contributor

to the DNA from the tissue samples.

The petitioner’s counsel sought to elicit testimony

that because the Polymarker/DQ-Alpha testing available

in 1995 and 1996 required more genetic material to

generate a DNA profile than STR testing, a DNA profile

could not have been generated from the genetic material

on the tissues at the time of the petitioner’s criminal

trial. Ladd testified, however, that the samples with

sufficient genetic material to generate a DNA profile

using STR testing in 2008 would have been capable

of generating a DNA profile using the Polymarker/DQAlpha testing available in 1995 and 1996. Ladd testified

that three of the four samples submitted for testing in

2008 contained an optimal amount of genetic material,

and one sample contained an amount that, although not

optimal, was sufficient to generate a usable DNAprofile.

The petitioner’s counsel then asked Ladd whether

the presence of PCR inhibitors may have prevented

a DNA profile from being generated using the older

technology.8 Ladd stated that, based on the testing performed in 2008, there was no evidence of any problem

arising from the presence of PCR inhibitors. Because

no DNA testing was performed in 1995 and 1996, Ladd

could not ‘‘categorically eliminate’’ the possibility that

PCR inhibitors may have been present then. He stated,

however, that ‘‘to a reasonable degree of scientific certainty,’’ he expected that a usable DNA profile could

have been generated using Polymarker/DQ-Alpha

testing.

Finally, Ladd testified concerning the frequency of

use of DNA testing in criminal cases in 1995 and 1996.
Ladd testified that the DNA unit at the laboratory

worked on twenty-five cases in 1995 and approximately

forty cases in 1996. He could not recall how many times

examiners testified in criminal trials in 1995 and 1996,

except to say that it was a limited number of times.

Ladd testified that in recent years, by contrast, the DNA

unit has handled approximately 1000 cases per year.

At the close of the petitioner’s case, the state moved

to dismiss the petition for a new trial pursuant to Practice Book § 15-8 for failure to establish a prima facie

case. The courtreserved judgment on the state’s motion

to dismiss. The state rested without presenting any evidence. After receiving posttrial briefs from the parties,

the court issued a memorandum of decision. On the

basis of the evidence presented, the court concluded

that the petitioner had failed to present evidence that

the DNA technology available at the time of his trial

could not have been utilized to exclude him as a contributor of DNA to the biological evidence on the soiled

tissues, thus foreclosing his claim that the results from

the DNA testing performed in 2008 constituted newly

discovered evidence under § 52-270. The court thus dismissed the petition for a new trial.9 The court thereafter

granted the petitioner’s petition for certification to

appeal, and this appeal followed.

On appeal, the petitioner claims that the court

improperly dismissed his petition for a new trial on

the ground that he failed to demonstrate that the DNA

evidence was newly discovered, a necessary element

for establishing a prima facie case under § 52-270.10

We disagree.

We begin with the legal principles that govern our

resolution of the petitioner’s claim. ‘‘Pursuant to § 52-

270, a convicted criminal defendant may petition the

Superior Court for a new trial on the basis of newly

discovered evidence. See Practice Book § 42-55. A trial

court’s decision on that ground is governed by the standard set forth in Asherman v. State, 202 Conn. 429, 434,

521 A.2d 578 (1987), and further refined in Shabazz v.

State, 259 Conn. 811, 827–28, 792 A.2d 797 (2002). Under

Asherman, a court is justified in granting a petition for

a new trial when the petitioner demonstrates that the

evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would

be material to the issues on a new trial; (3) is not

cumulative; and (4)is likely to produce a differentresult

in the event of a new trial. Asherman v. State, supra,

434.’’ Skakel v. State, 295 Conn. 447, 466–67, 991 A.2d

414 (2010).

On a petition for new trial on the basis of newly

discovered evidence, ‘‘[t]he question which must be

answered [with respect to whether the petitioner had

exercised due diligence in preparing his case] is not

what evidence might have been discovered, but rather
what evidence would have been discovered by a reasonable [person] by persevering application, [and] untiring

efforts in good earnest.’’(Internal quotation marks omitted.) Id., 507. ‘‘It is the petitioner’s burden to prove

that efforts used to find [the evidence] would not have

yielded the same result had they been applied earlier.’’

(Emphasis in original.) Id., 514. ‘‘This strict standard 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 by posttrial motions

except for a compelling reason.’’ (Internal quotation

marks omitted.) Asherman v. State, supra, 202 Conn.

434.

‘‘The legal principles governing a trial court’s decision

to dismiss a claim for failure to present a prima facie

case pursuant to Practice Book § 15-8 are well settled.

A prima facie case, in the sense in which that term is

relevant to this case, is one sufficient to raise an issue

to go to the trier of fact. . . . In order to establish a

prima facie case, the proponent must submit evidence

which, if credited, is sufficient to establish the fact or

facts which it is adduced to prove. . . . In evaluating

the [granting of] a motion to dismiss, [t]he evidence

offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and

every reasonable inference is to be drawn in [the plaintiff’s] favor. . . . Whether the plaintiff has established

a prima facie case entitling the plaintiff to submit a

claim to a trier of fact is a question of law over which

[this court’s] review is plenary.’’ (Internal quotation

marks omitted.) Nemhard v. Commissioner of Correction, 157 Conn. App. 368, 373–74, A.3d (2015).

Thus, the issue on appeal is whether the petitioner

submitted sufficient evidence, viewed in the light most

favorable to him, to satisfy the necessary elements that

must be shown to sustain a petition for a new trial. As a

threshold matter, the petitioner must present sufficient

facts to show that his claim is predicated on newly

discovered evidence. Evidence is newly discovered if

it was not available at the time of trial, or it could

not have been obtained by the exercise of reasonable

diligence. Skakel v. State, supra, 295 Conn. 506–507.

In the present case, the petitioner alleged in his petition for a new trial that the DNA testing methods available at the time of his trial would not have been capable

of identifying DNA profiles from the genetic material

recovered from the tissues, and thus that the results of

DNA testing using the modern STR method were not

discoverable or available at the time of his criminal

trial. The petitioner’s sole witness, Ladd, refuted this

claim. Contrary to the petitioner’s assertions, Ladd testified that the prior DNA technology was capable of generating a usable DNA profile. Ladd premised his

conclusion on the fact that the amount of genetic material in the evidence samples met or exceeded the
amount necessary to perform the Polymarker/DQAlpha test.

The petitioner attempted to elicit evidence that the

possible presence of PCR inhibitors in the evidence

samples would have prevented a DNA profile from

being generated. Because the evidence was not submitted for testing prior to the petitioner’s criminal trial,

Ladd testified that he could not rule out the possibility

that there may have been PCR inhibitors present in the

evidence samples at that time. Ladd stated, however,

that there was no evidence of PCR inhibitors when the

testing was performed in 2008. Thus, he concluded,

‘‘to a reasonable degree of scientific certainty,’’ that a

usable DNA profile could have been generated using

the Polymarker/DQ-Alpha test.In light of this testimony,

the petitioner failed to offer any evidence to establish

one of the essential prima facie elements of his claim.

On appeal, the petitioner argues that there was evidence in the record from which the trial court could

have found that it was too speculative to conclude that

the petitioner would have been eliminated as a DNA

contributor to the soiled tissues had DNA testing been

conducted at the time of his criminal trial. The petitioner contends that whether the DNA tests available

in 1995 and 1996 would have been capable of generating

a DNA profile is ‘‘an untested and untestable hypothesis.’’ Thus, he argues, the issue must be resolved in his

favor. This argument misconstrues the applicable legal

standard. It was the petitioner’s burden to produce

evidence to support his theory that a new trial was

warranted in this instance. See Skakel v. State, supra,

295 Conn. 515. The failure of the petitioner’s trial counsel to subject the evidence samples to DNA testing

prior to his criminal trial, and his subsequent failure to

present any evidence to support the assertions

advanced in his petition for a new trial, left the court

without any basis from which to draw the necessary

inference that the testing available in 1995 and 1996

would not have produced the same results as the

2008 testing.

The petitioner also contends that dismissal of his

petition was inappropriate because a fact finder reasonably could have found, on the basis of the evidence

presented in support of his petition, that reasonable

diligence did not require criminal defendants to pursue

DNA testing in 1995 and 1996. More specifically, he

argues that Ladd’s testimony regarding the limited use

of DNA testing in criminaltrials in 1995 and 1996 demonstrated that, ‘‘while the science behind DNA evidence

was gaining acceptance, there was still substantial

uncertainty as to how the evidence should be utilized

in court.’’ The petitioner further argues that the high

probability of a ‘‘coincidental inclusion’’ in 1995 and

1996 presented a significant risk of false inculpatory

evidence. Thus, he claims, a fact finder reasonably
could have found that the uncertainty and degree of

imprecision surrounding DNA evidence discouraged

defense attorneys from seeking DNA testing.11 The

record shows, however, that the petitioner did not present any evidence concerning how the state of DNA

technology in 1996 impacted defense lawyers’ decisions

at that time. More importantly, the petitioner presented

no evidence as to the reasons why his own trial attorney

did not investigate or seek DNA testing on the soiled

tissues at the time of his criminal trial.

‘‘[T]he petitioner has the burden of alleging and proving facts which would, in conformity with our settled

equitable construction of the statutes, entitle him to a

new trial on the grounds claimed . . . .’’ State v.

Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966). Here,

the petitioner alleged that the DNA evidence was newly

discovered on the ground that it could not have been

obtained using the technology that was available in 1995

and 1996. Ladd, however, debunked that proposition

entirely, and the petitioner presented no other evidence

from which the trier of fact could have drawn an inference to the contrary. Thus, the petitioner cannot succeed on his petition for a new trial, the ground for

which must be premised on newly discovered evidence

that could not have been discovered by the exercise of

reasonable diligence prior to his criminal trial. Accordingly, we conclude that the court properly dismissed

the petition.

The judgment is affirmed.

In this opinion the other judges concurred.

1 There was conflicting testimony attrial on this subject. Medical personnel

who treated the victim following the assault testified that she reported that

her assailant ejaculated into a tissue. The victim testified that her assailant

ejaculated inside her.

2 The victim testified that D’Amato had prepared a violation of probation

arrest warrant based on the victim’s drug use and prostitution.

3 The victim’s testimony on cross-examination by defense counsel concerning the tissues, which were marked as an identification exhibit, was

as follows:

‘‘Q. And later on you took the police officer back to those same tissues?

‘‘A. That’s right.

‘‘Q. And those tissues you claim he wiped himself . . . [b]ut you saw

him throw the tissues out the window?

‘‘A. Those were the same tissues he wiped himself off after he had raped

me, those were the same tissues.

‘‘Q. Because you later identified those tissues as being the same tissues,

isn’t that true?

‘‘A. Yeah,they’re the same tissues. I seen him thr[ow] them outthe window.

‘‘Q. Yes. And a police officer took you back to that scene, that location

at Bailey Street, isn’t that right?

‘‘A. Yes. What are you trying to say, that I didn’t get raped? . . .

‘‘Q. The officer took you back to Bailey where the alleged assault took

place, is that correct?

‘‘A. Yes, he did.

‘‘Q. You pointed out these tissues on the ground to the police officer,

isn’t that right?

‘‘A. Yep.’’

4 On appeal, the state argues that the tissues are immaterial because they

were not relied upon by the state at trial as a basis for the petitioner’s conviction.

5 General Statutes § 54-102kk provides in relevant part that ‘‘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. . . .’’

6 Using PCR, the DNA molecule is copied, the copy of the DNA molecule

is then copied, and so on.

7 Testing at fifteen loci permits additional points of comparison and, thus,

provides additional opportunities for the known individual to be excluded

as the source of the DNA.

8 Ladd explained that in some cases the presence of organic compounds

that have not been fully removed during the DNA extraction may inhibit

the amplification process. These compounds are referred to as PCR inhibitors. Ladd further explained that PCR inhibitors are a potential factor with

both Polymarker/DQ-Alpha and STR testing.

9 Alternatively, the court concluded that the petitioner could not prevail

on the merits under Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578

(1987), reasoning that: (1) the evidence was not newly discovered; (2) the

evidence would not be material to the issues in a new trial; and (3) the

evidence was not likely to produce a different result in a new trial. Because

we decide that the court properly dismissed the petition for a new trial, we

do not reach this alternative ground.

10 General Statutes § 52-270 (a) provides: ‘‘The Superior Court may grant

a new trial of any action that may come before it, for mispleading, the

discovery of new evidence or want of actual notice of the action to any

defendant or of a reasonable opportunity to appear and defend, when a just

defense in whole or part existed, or the want of actual notice to any plaintiff

of the entry of a nonsuit for failure to appear at trial or dismissal for

failure to prosecute with reasonable diligence, or for other reasonable cause,

according to the usual rules in such cases. The judges of the Superior Court

may in addition provide by rule for the granting of new trials upon prompt

request in cases where the parties or their counsel have not adequately

protected their rights during the original trial of an action.’’

11 On this score, the petitioner claims that the court incorrectly interpreted

§ 52-270 to require him to prove that the DNA testing available at the time

of his criminal trial would not have excluded him as a contributor, which

he argues, ignores the ‘‘qualitative difference’’ between DNA technologies

then and now.