State v. Zollo

• Decision Date: 07 February 1995
• Docket Number: No. 13630,13630
• Parties: STATE of Connecticut v. Bruce C. ZOLLO.
• Court: Connecticut Court of Appeals

Page 359

654 A.2d 359

36 Conn.App. 718

STATE of Connecticut v. Bruce C. ZOLLO.

No. 13630.

Appellate Court of Connecticut.

Argued Sept. 14, 1994.

Decided Feb. 7, 1995.

Deborah Del Prete Sullivan, Asst. Public Defender, for appellant (defendant).

Timothy J. Sugrue, Asst. State's Atty., with whom, on the brief, was Mary M. Galvin, Milford, for appellee (State).

Before EDWARD Y. O'CONNELL, SCHALLER and SPEAR, JJ.

SCHALLER, Judge.

The defendant appeals ¹ from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), ² sexual assault in a spousal relationship in violation of General Statutes § 53a-70b, ³ and attempt to commit sexual assault in a spousal relationship in violation of General Statutes §§ 53a-49(a) ⁴ and 53a-70b. The defendant was found not guilty of a separate count that charged him with robbery in the first degree in violation of General Statutes § 53a-134(a)(3). The defendant claims that the trial court improperly (1) permitted the DNA expert witness to testify that the possibility that the DNA profile of a semen sample found at the crime scene came from someone other than the defendant was not statistically significant, (2) permitted the expert to testify to the statistical probability of the DNA match, (3) permitted the expert to testify to the statistical significance of a nonmatching DNA probe, (4) instructed the jury (a) to apply a conclusive presumption and directed a verdict of guilty, (b) on the threat of use of force, a statutory alternative the defendant claims was unsupported by the evidence, (c) on attempt, thus violating the defendant's right not to be convicted except upon proof beyond a reasonable doubt, and (d) on the presumption of innocence and the meaning of reasonable doubt in a manner that violated the defendant's due process right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 11, 1991, the victim, the estranged wife of the defendant, was assaulted by an unknown assailant wearing a ski mask, a jacket, and a long pea coat. At approximately 12:35 p.m., the assailant appeared inside the victim's cellar with a hunting knife in his hand. He grabbed her by the hair, cut her finger with the knife, put a bag over her head and pulled her upstairs, where he handcuffed her hands, wrapped her head in duct tape, and sexually assaulted her for approximately one and one-half hours. During the assault, he also urinated on the victim's chest twice.

The assailant spoke only twice. In response to the victim's plea that he not kill her because she was the mother of two children, he responded in a low voice, "I know." Just before he left the crime scene, the assailant also stated, "Give me fifteen minutes" in a similar low voice.

At approximately 2 p.m. on the date of the assault, the victim's neighbor was operating a remote control car in the street in front of the victim's home. A vehicle that the neighbor recognized as belonging to the victim sped past. The neighbor recognized the driver as the defendant, Bruce Zollo. The neighbor also observed that the defendant was adjusting a woolen cap on his head as he drove by.

The neighbor then saw the victim standing in her driveway, wearing only a small jacket or vest. Her head was wrapped in duct tape that covered her eyes, and she was bleeding. The neighbor led the victim into his house and called paramedics, who had difficulty removing the tape from the victim's head, even with the use of trauma scissors.

The victim had been married to the defendant for eight years at the time of the assault. The couple had separated because of the defendant's drug use. According to the defendant's friend, Paul Norris, the defendant, prior to the assault, had expressed a desire to take revenge on his wife for initiating the separation. The defendant asked Norris to participate in sexually assaulting the victim, but Norris refused.

Shortly after the assault, the defendant arrived at the victim's home and stated that he was concerned that his wife had been raped. While the police were gathering evidence in the victim's home, the defendant requested several times that he be allowed to clean the house before the police entered it. The police uncovered a towel stained with semen, from which the prosecution was able to gather a DNA sample for analysis by Harold Deadman, a forensics expert from the Federal Bureau of Investigation (FBI), who testified at trial.

I

The defendant's first claim is that the trial court improperly allowed Deadman to testify as an expert witness that the chance that the DNA sample came from someone other than the defendant was "so small that ... it would not be worth considering." The defendant asserts that this testimony is an opinion on an ultimate issue in the case and, therefore, should not have been admitted.

Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. " 'The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.' State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992)." State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Merritt, 36 Conn.App. 76, 82, 647 A.2d 1021, cert. granted, 231 Conn. 926, 648 A.2d 165 (1994). This standard does not vary for the testimony of expert witnesses. "Generally, expert testimony may be admitted if the witness has a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.... The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law." (Citations omitted; internal quotation marks omitted.) State v. Forrest, 216 Conn. 139, 147, 578 A.2d 1066 (1990). We review the defendant's claim in view of this broad standard.

The defendant asserts that identity is an essential fact, which the state must prove beyond a reasonable doubt to support a conviction. The determination of identity is solely the province of the jury. The defendant cites no case to support the proposition that an opinion as to evidence linking the defendant to a crime is an opinion on an ultimate issue. Our Supreme Court, in fact, has held that expert opinion testimony linking a defendant to a crime scene is admissible. State v. Hasan, 205 Conn. 485, 534 A.2d 877 (1987) (opinion that footprints belonged to defendant's shoes properly admitted); State v. Ortiz, 198 Conn. 220, 502 A.2d 400 (1985) (opinion that bite marks belonged to defendant properly admitted). Deadman's opinion as to the identity of the sperm donor similarly linked the defendant to the crime scene in this case.

We are unpersuaded by the defendant's argument that the trial court improperly allowed the expert witness to give an opinion on an ultimate issue by permitting testimony that the defendant was the likely source of the semen sample. Our Supreme Court has held that expert testimony on the ultimate issue of intent is inadmissible. State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993); State v. Vilalastra, 207 Conn. 35, 540 A.2d 42 (1988). Nevertheless, " '[e]xperts can ... sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.' ..." State v. Vilalastra, supra, at 41, 540 A.2d 42, quoting C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 7.17.3, p. 186. The trial court does not overstep its discretionary bounds where the opinion was necessary to aid the jury in understanding the expert witness' testimony. State v. Forrest, supra, 216 Conn. at 147, 578 A.2d 1066; State v. Vilalastra, supra, 207 Conn. at 42, 540 A.2d 42.

Deadman gave complex testimony concerning DNA and statistical probabilities relating to the science of matching DNA probes. A series of radioactive probes determines the DNA profile of a given sample. The testimony in question was admitted to assist the jury in understanding the testimony of the expert witness concerning his DNA analysis. We conclude that the trial court did not abuse its discretion by allowing the expert to give an opinion as to the identity of the semen sample because his opinion could reasonably have aided the jury in understanding the DNA testimony.

II

The defendant next asserts that the trial court improperly allowed Deadman to testify to the statistical probability of the DNA match. The thrust of the defendant's argument is that the methods of analysis used by the FBI are not generally accepted by the scientific community and are, therefore, unreliable. The defendant argues that the testimony is inadmissible under the Frye standard for admissibility of scientific evidence. Frye v. United States, 293 F. 1013 (D.C.Cir.1923). ⁵

The defendant urges review of the admissibility of testimony based on the FBI's methods of statistical analysis. Having cited case law from other jurisdictions and scientific articles concerning the reliability of the FBI's methods, the defendant urges us to review the trial court's factual finding that the evidence met the Frye standard.

We decline to review factual findings as to whether the DNA testimony satisfied the Frye standard for admissibility of scientific evidence. Although we will review a trial court's ruling as to whether a Frye finding must be made, we will not conduct an appellate level review of the facts relating to a Frye finding. State v. Merritt, supra, 36 Conn.App. at 91, 647 A.2d 1021. " 'It is not the function of this court to find facts. State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1980).' State v. Rios, 30 Conn.App. 712, 716, 622 A.2d 618 (1993)." State v. Shanks, 34 Conn.App. 103,...