State v. Hammond, 14354

• Decision Date: 25 February 1992
• Docket Number: No. 14354,14354
• Citation: State v. Hammond, 221 Conn. 264, 604 A.2d 793 (Conn. 1992)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Ricky C. HAMMOND.

Page 793

604 A.2d 793

221 Conn. 264

STATE of Connecticut v. Ricky C. HAMMOND.

No. 14354.

Supreme Court of Connecticut.

Argued Nov. 5, 1991.

Decided Feb. 25, 1992.

Vicki Galambas Gensler, Certified Legal Intern, with whom were Todd D. Fernow and Pamela S. Meotti, Certified Legal Intern, and, on the brief, Timothy H. Everett, Hartford, for appellant (defendant).

Susann E. Gill, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., John Malone, Asst. State's Atty., and Monice Barbero-Osborne, Certified Legal Intern, for appellee (state).

Before PETERS, C.J., and GLASS, COVELLO, BORDEN and SANTANIELLO, JJ.

PETERS, Chief Justice.

In this criminal appeal, the principal issue is the weight to be assigned to potentially exculpatory blood typing tests and deoxyribonucleic acid (DNA) profiling evidence. The state charged the defendant by substitute information with kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) and two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a). ¹ After a jury trial finding the defendant guilty as charged, he moved for a new trial and for further discovery to undertake blood testing and DNA profiling of additional vaginal swabs and smears from the victim. Denying both motions, the trial court rendered a judgment sentencing the defendant to a total effective term of twenty-five years, suspended after twenty-three years, and three years probation. The defendant appealed to the Appellate Court, and we transferred his appeal to this court pursuant to Practice Book § 4023. We remand the case to the trial court for reconsideration of these two motions.

There is no dispute about the following facts. While walking on a dark street in Bristol, on November 30, 1987, at approximately 5:20 p.m., the victim was pushed off the sidewalk by a man who knocked her down and subsequently forced her to enter a vehicle in a nearby parking lot. The man drove the car for ten to fifteen minutes before parking it on or near a dirt road, whereupon he forced the victim to engage in oral and vaginal intercourse. She did not believe that the man ejaculated during the oral sex, and could not tell whether he ejaculated during the vaginal sex. The man then drove her to an area of Bristol with which she was unfamiliar, told her not to tell anyone what had happened or he would kill her and her son, and let her out of the car. He told her in which direction she would find Route 6, and drove away.

The defendant has consistently denied being the man who attacked the victim. In his appeal, he claims that: (1) the trial court improperly denied his motion for a new trial in light of the exculpatory blood typing and DNA profiling evidence he produced at trial; (2) the state's attorney made improper arguments to the jury, resulting in a violation of his right to a fair trial before an impartial jury; and (3) the trial court improperly denied his posttrial motion for blood testing and DNA profiling of vaginal swabs and smears from the victim.

I

The first issue in this appeal is whether the verdict of the jury was so clearly against the weight of the evidence that the trial court improperly denied the defendant's motion to set aside the verdict and for a new trial. After reviewing the standard by which we review the trial court's disposition of such a motion, we will consider in turn the inculpatory evidence offered by the state and the exculpatory evidence offered by the defendant.

A

The defendant's motion for a new trial differs from a motion for acquittal in that it does not dispute that the state presented sufficient evidence, if found credible by the jury, to sustain his conviction. The defendant maintains, instead, that the exculpatory evidence he offered in his defense was so strong that the trial court improperly refused to rule that the verdict was contrary to the manifest weight of the evidence.

Although the jury is ordinarily the sole arbiter of the facts in a criminal case, its power "is not absolute.... The court serves a supervisory function vis-a-vis the jury.... 'In passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict. The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly. A juror who did not do this would be remiss in his duty. The trial judge in considering the verdict must do the same, or fail in the discharge of that function which the law has laid upon him; and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside the verdict.' Howe v. Raymond, 74 Conn. 68, 72, 49 A. 854 (1901)." State v. Avcollie, 178 Conn. 450, 456-57, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 667, 62 L.Ed.2d 645 (1980), aff'd, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299 (1983). In such a case, "[a] verdict may be set aside even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury." Palomba v. Gray, 208 Conn. 21, 24, 543 A.2d 1331 (1988).

One cogent reason for overturning the verdict of a jury is that the verdict is based on conclusions that are physically impossible. "[A] verdict should be set aside '[w]here testimony is thus in conflict with indisputable physical facts, the facts demonstrate that the testimony is either intentionally or unintentionally untrue, and leave no real question of conflict of evidence for the jury concerning which reasonable minds could reasonably differ.' Budaj v. Connecticut Co., 108 Conn. 474, 476, 143 A. 527 (1928)." State v. Avcollie, supra, 178 Conn. at 457, 423 A.2d 118. We have found the requisite physical impossibility in cases involving the presence of adequate lighting, which contradicted an accident victim's testimony that he did not and could not see a trolley bearing down on him. Budaj v. Connecticut Co., supra, 108 Conn. at 475-76, 143 A. 527. In Gianotta v. New York, N.H. & H.R. Co., 98 Conn. 743, 744, 120 A. 560 (1923), we held that a tort claimant could not reasonably have failed to see an approaching train in light of his own testimony that he had stopped his car some fifteen feet from the track.

Scientific evidence is relevant to a determination of what is physically impossible. In Roma v. Thames River Specialties Co., 90 Conn. 18, 20-21, 96 A. 169 (1915), this court held that the trial judge "would have failed in his duty" if he had not set aside the verdict when "the laws of mechanics, as testified to and uncontradicted, tended to prove [the claimant's] story impossible." In Jump v. Ensign-Bickford Co., 117 Conn. 110, 116, 167 A. 90 (1933), the trial court properly set aside the verdict when expert scientific testimony indicated that it was physically impossible for a fuse to burn as fast as the claimant had alleged, and this court could "find in the evidence no reasonable ground which would have justified the jury in disregarding that evidence." In Wadlund v. Hartford, 139 Conn. 169, 171-72, 91 A.2d 10 (1952), this court held that the trial judge should have ordered a new trial where the indisputable physical facts established by the records of the weather bureau conclusively determined the incredibility of testimony that a sidewalk had been icy for at least three days before the claimant's slip and fall injury. As a general matter, we have held that "[w]here the trial court rejects the testimony of [an] expert, there must be some basis in the record to support the conclusion that the evidence of the [expert witness] is unworthy of belief." (Internal quotation marks omitted.) Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 294, 545 A.2d 530 (1988).

Appellate review of a trial court's decision granting or denying a motion for a new trial must take into account the trial judge's superior opportunity to assess the proceedings over which he or she has personally presided. Although our decisions have not been entirely consistent in delineating the appropriate standard for appellate review, we have most often characterized the action of the trial court as an exercise of its legal discretion and have accordingly confined our role to a determination of whether there has been an abuse of discretion. Palomba v. Gray, supra, 208 Conn. at 24-25, 543 A.2d 1331; Lee v. Lee, 171 Conn. 1, 2-3, 368 A.2d 11 (1976); Roma v. Thames River Specialties Co., supra, 90 Conn. at 20, 96 A. 169. Although we have occasionally taken a broader view; State v. Avcollie, supra, 178 Conn. at 460, 423 A.2d 118; Burr v. Harty, 75 Conn. 127, 129-30, 52 A. 724 (1902); we now conclude that the appropriate standard of review is abuse of discretion. ²

B

Our determination of whether the trial court abused its discretion in this case must begin with a review of the state's evidence against the defendant. The state presented substantial evidence in support of the conviction from the victim, from other witnesses who corroborated her observations and from the conduct of the defendant himself.

The defendant does not dispute that, on November 30, 1987, the victim was struck, kidnapped and then sexually assaulted by a man who first accosted the victim as she was walking along a dark stretch of road in the vicinity of her home. The initial attack on the victim knocked off her eyeglasses, without which her vision is approximately 20/375 and she has difficulty seeing anything more...