State Of conn. v. Dupigney

• Decision Date: 09 March 2010
• Citation: 295 Conn. 50,988 A.2d 851
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John DUPIGNEY.

988 A.2d 851

295 Conn. 50

STATE of Connecticut

v. John DUPIGNEY.

Supreme Court Of Connecticut.

No 18363.

Argued December 9, 2009.

Decided March 9, 2010.

W. Theodore Koch III, special public defender, with whom, on the brief, was William T. Koch, Jr., special public defender, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom were Margaret Gaffney Radionovas, state's attorney, and, on the brief, Michael Dearington, state's attorney, and Linda N. Howe, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.

KATZ, J.

This appeal raises an issue of first impression before this court, namely, the meaning and proper application of the standard for obtaining postconviction DNA testing of evidence under General Statutes § 54-102kk(b)(1), ¹ pursuant to which a petitioneris entitled to such relief if he demonstrates that a "reasonable probability exists that [he] would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing...." Following his 2000 conviction for murder and related firearms offenses and an unsuccessful appeal from the judgment of conviction; see State v. Dupigney, 78 Conn.App. 111, 826 A.2d 241, cert. denied, 266 Conn. 919, 837 A.2d 801 (2003); the defendant, John Dupigney (petitioner), filed a petition, pursuant to § 54-102kk(b), requesting DNA testing of a hat found at the murder scene that was introduced into evidence by the state in the petitioner's criminal trial. The petitioner now appeals from the decision of the trial court, Damiani, J., denying his petition.² The petitioner claims that the trial court improperly concluded that there was no reasonable probability that exculpatory DNA evidence would have altered the outcome of his trial. We conclude that the trial court properly applied the reasonable probability standard under § 54-102kk, and we therefore affirm the trial court's decision.

The record, including the Appellate Court's opinion in the petitioner's appeal from his underlying judgment of conviction, reveals the following facts that the jury reasonably could have found, as well as the pertinent procedural history. "Morris Lewis, the victim, and Herbert Dupigney, the [petitioner's] brother, were partners in an illegal drug selling enterprise in New Haven. The drug sales were conducted primarily at 304 Winthrop Avenue. Other members of the operation included Nick Padmore, an[d] individuals known to the participants in the trial only as `Ebony' and Eric Raven. In December, 1994, following the victim's incarceration, the [petitioner] moved from Boston to New Haven to assist his brother in the drug operation. The [petitioner] also enlisted an acquaintance from Boston, Derrick D'Abreau, to help with the drug sales. D'Abreau moved to New Haven in the beginning of January, 1995.

"The victim was released from jail on January 23, 1995. That day, the victim telephoned Herbert Dupigney at the home of Carlotta Grinman. Grinman overheard the [petitioner subsequently] tell his brother... that the victim `was not going [to] get a... thing.'

"On January 24, 1995, at about 9:30 p.m., the victim met with the [petitioner]... Herbert Dupigney, D'Abreau, Padmore, Raven and `Ebony' at 304 Winthrop Avenue. Upon his arrival at the building, the victim told everybody to leave because that was his location to sell drugs. As the argument escalated, the victim slapped the [petitioner] and threw a chair at him. The victim then broke a bottle and attempted to attack the [petitioner]. D'Abreau and Raven retreated to a turquoise Dodge Neon. The victim then started swiping the bottle at the occupants of the vehicle through one of its open windows. While Herbert Dupigney attempted to calm the victim and get him away from the car, the [petitioner] inquired if anybody had a gun. In response, D'Abreau gave the [petitioner] a.380 caliber pistol. The [petitioner]then pointed the gun at the victim and told him to back off.

"Herbert Dupigney and the [petitioner] then entered the turquoise Dodge Neon and left the scene. The group proceeded to [Raven's] apartment at 202 Sherman Avenue. The [petitioner] was visibly upset, and stated that the victim was getting on his nerves and that he was going to kill [the victim]. After a few minutes, the [petitioner] and his brother left.

"The [petitioner] and his brother rejoined [Raven] and D'Abreau at 202 Sherman Avenue approximately one hour later. Between 11:15 p.m. and 11:30 p.m., all four individuals proceeded to 300 Winthrop Avenue, where the drug operation had rented a fourth floor room facing Winthrop Avenue. At that time, the victim was playing dice with Padmore and `Ebony' in front of 304 Winthrop Avenue. Herbert Dupigney went down to the street to try to smooth things over with the victim. It was understood that if the attempt at reconciliation was unsuccessful, then the victim would be shot. The [petitioner], [Raven] and D'Abreau observed the scene from the apartment's window. After a few minutes of conversation between the parties and with no overt indication that an accord had been reached, the victim, Padmore and `Ebony' walked off in the direction of Edgewood Avenue. Herbert Dupigney called out to `Ebony.' After `Ebony' started to return, the [petitioner] and [Raven] abruptly left the apartment.

"As the victim and Padmore approached the corner of Winthrop Avenue and Edgewood Avenue, the turquoise Dodge Neon approached them. The [petitioner] exited the vehicle and fired several shots at the victim. A brief struggle ensued, after which the [petitioner] fired more shots at the victim. The victim died of his wounds shortly thereafter." Id., at 112-14, 826 A.2d 241.

Shortly after the shooting, Padmore "contacted the New Haven police... claiming to have information regarding the crime. The police interviewed him on February 1, 1995. At that time, [Padmore] provided the police with a [tape-recorded] statement identifying the [petitioner] as the assailant. He also identified the [petitioner] as the shooter from a photographic array and signed the [petitioner's] photograph. Both the [tape-recorded] statement and the photograph were admitted into evidence under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986)."³ State v. Dupigney, supra, 78 Conn.App. at 120-21, 826 A.2d 241.

As a result, the state thereafter charged the petitioner with one count of murder in violation of General Statutes § 53a-54a, one count of carrying a pistol without a permit in violation of General Statutes § 29-35 and one count of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. Id., at 114, 826 A.2d 241. At trial, the state offered into evidence a black knit hat, bloodied and with two holes, that the police had recovered from the driveway of 315 Winthrop Avenue on the night of the murder. Two witnesses for the state, D'Abreau and Aisha Wilson, testified that they had observed the shooting from the fourth floor of an apartment building across the street from 315 Winthrop Avenue. Both witnessesidentified the petitioner as the shooter and testified that the petitioner had been wearing a black knit hat both just before the shooting and at the time of the shooting.⁴

The petitioner essentially presented a mistaken identity defense. During the criminal trial, the petitioner's counsel made a motion to have the hat tested. The trial court, Owens, J., denied the motion. Thereafter, the petitioner was found guilty on all three counts, ⁵ and was sentenced to a total effective term of seventy years incarceration. Id., at 114-15, 826 A.2d 241.

After an unsuccessful direct appeal to the Appellate Court, in which the petitioner did not challenge the trial court's denial of his motion for DNA testing, the petitioner filed a habeas corpus petition claiming, inter alia, that his trial counsel had been ineffective for failing to move timely for DNA testing of the hat found at the murder scene. In furtherance of his actual innocence claim in that petition, which is still pending, the petitioner also filed the petition at issue in the present case seeking DNA testing of the hat under § 54-102kk. In 2007, the trial court, Damiani, J., conducted a hearing on the § 54-102kk petition, after which the court denied the petition on the ground that the petitioner had not shown that there was a reasonable probability that he would not have been prosecuted or convicted if the hat had been tested.

On appeal to this court, the petitioner claims that the trial court improperly denied his motion for postconviction DNA testing under § 54-102kk(b). Specifically, he claims that the trial court misapplied the statute, under which he is entitled to DNA testing if a "reasonable probability exists that [he] would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing...."⁶ General Statutes § 54-102kk(b)(1). To support this claim, the petitioner suggests that testing on the hat could reveal DNA matching neither the victim nor the petitioner and that such a finding could create a reasonable probability that the jury could have formed a reasonable doubt that the petitioner was the shooter. We disagree.

I

Neither this court nor the Appellate Court has construed the standard for ordering postconviction DNA testing under § 54-102kk(b). Therefore, before we can determine whether the trial court properly applied the reasonable probability standard under that statute, we must ascertain its meaning. Because this is an issue of statutory interpretation, we exercise de novo review. See State v. Fernando A., 294 Conn. 1, 13, 981 A.2d 427 (2009).

"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner,...