Jason B. v. Comm'r of Corr.

• Decision Date: 02 April 2013
• Docket Number: AC 33117
• Parties: JASON B. v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

JASON B. v. COMMISSIONER OF CORRECTION

AC 33117

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 7

officially released: April 2, 2013

The "officially released" date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ''officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ''officially released'' date.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Bear, Espinosa and Flynn, Js.^*

(Appeal from Superior Court, judicial district of Tolland, Schuman, J.)

Mary H. Trainer, special public defender, for the appellant (petitioner).

Adam E. Mattei, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Gerard P. Eisenman, former senior assistant state's attorney, for the appellee (respondent).

Opinion

BEAR, J. The petitioner, Jason B., following the habeas court's granting of his petition for certification to appeal, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that ''[t]he habeas court erred when it denied [his] claim that his right to due process under [a]rticle [f]irst, [§] 8, of the Connecticut [c]onstitution was violated when the police destroyed evidence that was potentially exculpatory thereby making it unavailable at trial.'' We disagree and affirm the judgment of the habeas court.

The petitioner was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and unlawful restraint in violation of General Statutes § 53a-95 (a) for acts committed against his former wife, and his conviction was upheld on appeal. See State v. Jason B., 111 Conn. App. 359, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009). During his criminal trial, the petitioner testified in his own defense that he and the victim had engaged in consensual sexual relations on the night in question. During the victim's testimony about the sexual assault and restraint, she testified, in part, that during the incident, the petitioner had forced her to smoke a marijuana cigarette (cigarette). Id., 362 n.2. She gave the remains of that cigarette to the police. The police, however, destroyed the cigarette by flushing it down a toilet. During his habeas trial, the petitioner claimed, in relevant part, that the destruction of the cigarette was a due process violation because he did not have the opportunity to test the cigarette for DNA.¹ The habeas court disagreed.

On appeal, the petitioner argues: ''By destroying the cigarette, the [s]tate harmed the petitioner's case because he could not test an item that, based on his version of the facts of the case, could prove exculpatory, could support his claim that the relations were consensual, and importantly, could bolster his credibility.'' We are not persuaded.

In State v. Morales, 232 Conn. 707, 720, 657 A.2d 585 (1995), our Supreme Court determined that article first, § 8, of the Connecticut constitution requires a balancing test rather than a showing of bad faith: ''We refer to this test as the Asherman test. [State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).] Although the United States Supreme Court in [Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)] held that due process under the federal constitution does not require a trial court to apply such a balancing test . . . due process under our state constitution does.'' ''[T]he trial court must employ the [ Asherman] balancing test, weighing the reasonsfor the unavailability of the evidence against the degree of prejudice to the accused.'' (Internal quotation marks omitted.) State v. Joyce, 243 Conn. 282, 301, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998). The factors to be considered include ''[1] the materiality of the missing evidence, [2] the likelihood of mistaken interpretation of it by witnesses or the jury, [3] the reason for its nonavailability to the defense and [4] the prejudice to the defendant caused by the unavailability of the evidence.'' State v. Asherman, supra, 724.

In the present case, the petitioner contends that a proper application of the balancing factors from Asherman requires that his petition for a writ of habeas corpus be granted and that he be granted a new trial. Applying the Asherman balancing factors, however, we conclude that the petitioner's right to due process of law under article first, § 8, of the Connecticut constitution was not violated by the destruction of the cigarette.

First, we conclude that the cigarette was not material. See State v. Asherman, supra, 193 Conn. 724. ''The measure of materiality is whether there is a reasonable probability that, had the evidence been disclosed [or available] to the defense, the result of the proceeding would have been different.'' (Internal quotation marks omitted.) State v. Barnes, 127 Conn. App. 24, 32, 15 A.3d 170 (2011), affd, 308 Conn. 38, A.3d (2013). We conclude that such a reasonable probability does not exist in this case. The petitioner testified during his criminal trial that the victim voluntarily smoked marijuana while in his vehicle. Exactly whose DNA, if any, may have been present on the cigarette that the victim gave to the police likely would not have affected the outcome of the petitioner's trial. Even if the cigarette tested positive for either the petitioner's or a third person's DNA, but not the victim's DNA, it would not have meant that the victim had not smoked the cigarette, but only that her DNA was not detectable. Additionally, even if the cigarette tested positive for the victim's DNA whether it was proved to be marijuana or something other than marijuana, it would not have been relevant to the issue of whether the petitioner had forced the victim to smoke that cigarette. Furthermore, the primary...