STATE v. THOMAS J. MARRA, JR., SC 18331

Judicial District of Fairfield

    Criminal; DNA Testing; Whether the Trial Court has Authority Under General Statutes § 54-102kk to Order a Third Party to Submit to DNA Testing; Whether the Trial Court Correctly Applied the "Reasonable Probability" Standard.  In 1984, the victim, Alex Palmieri, was attacked by the defendant with a baseball bat in the defendant's garage.  The defendant, with the help of two other men, put the victim in a refrigerator, which was dumped in Bridgeport Harbor.  Neither the victim's body nor the refrigerator was ever found.  In 1990, the defendant was convicted of murder.  Fifteen years later, the defendant filed a petition under General Statutes § 54-102kk for the DNA testing of the following evidence that had been presented at his trial: (1) foot bones and other biological material contained in a sneaker recovered from the shore of Bridgeport Harbor, and (2) blood recovered from the defendant's garage.  The defendant also requested that the court order one, or both, of the victim's brothers to submit to DNA testing for comparison purposes.  The defendant claimed that DNA testing would establish that the foot bones and other biological evidence were not from the victim. Section 54-102kk requires a court, when ruling on a petition for DNA testing, to apply the "reasonable probability" standard, which is the same standard enunciated in Brady v. Maryland, 373 U.S. 83 (1963), for evidence illegally suppressed by the prosecution in a criminal case.  Under Brady, the prosecution's withholding of material evidence favorable to the defendant violates due process.  Evidence is "material" only if there is a reasonable probability that the verdict would have been different had the evidence been disclosed to the defendant.  The trial court found that the evidence against the defendant was so overwhelming that, even if the biological evidence had not been admitted at trial, a reasonable jury would still have found him guilty.  Thereafter, the trial court denied the petition, ruling that it was not reasonably probable that the defendant would not have been prosecuted or convicted even if DNA testing had established that the biological evidence did not belong to the victim.  On appeal, the defendant claims that the trial court improperly applied the "sufficiency of the evidence" standard, rather than the reasonable probability standard of Brady.  According to the defendant, the reasonable probability standard requires the trial court to determine whether, if the biological evidence were excluded because DNA testing established that it did not belong to the victim, confidence in the jury's verdict would be undermined.  If that standard had been applied, he asserts that the petition would have been granted.  The state claims that because § 54-102kk does not authorize DNA testing of third parties, the trial court lacked jurisdiction to order the victim's brothers to submit to testing.