STATE v. JOHN DUPIGNEY, SC 19026

Judicial District of New Haven

 Criminal; Whether New Evidence May Be Used to Support Postconviction Petition for DNA Testing Pursuant to General Statutes § 54-102kk; Whether Trial Court Properly Dismissed Second Petition for DNA Testing on Res Judicata Grounds.  The petitioner, who is serving a sentence for murder, filed a petition for DNA testing pursuant to General Statutes § 54-102kk, seeking testing of a knit hat found at the murder scene and introduced into evidence at his trial.  He claimed that the state presented evidence that the shooter wore the hat and that testing of the hat that revealed DNA that did not belong to him or the victim would give rise to reasonable doubt that he was the shooter.  The trial court denied the petition, concluding 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.  The trial court also noted that there was strong evidence, entirely unrelated to the hat, identifying the petitioner as the shooter.  The Supreme Court affirmed that ruling, finding that the trial court reasonably determined that the petitioner had not established a conclusive link between the hat introduced at trial and the hat worn by the shooter.  The petitioner then brought this action by a second petition seeking DNA testing of the hat.  With this petition, he proposed to put on additional testimony that was not offered at his trial, which, he alleged, would directly tie the hat introduced into evidence to the shooter, thus alleviating the deficiencies cited by the Supreme Court in affirming the denial of his first petition.  The trial court granted the state's motion to dismiss the second petition on res judicata grounds.  It found that the additional testimony that the petitioner sought to offer was available both at the time of his trial and at the time of the first petition for DNA testing.  The court also found that, in all probability, the proffered evidence would be less than conclusive in linking the hat to the shooter and would not tend to dilute the impact of the strong evidence identifying the petitioner as the shooter.  On appeal, the petitioner claims that the trial court wrongly determined that new evidence may not be used to support a postconviction petition for DNA testing under § 54-102kk.  The state counters that the court did consider the petitioner's new evidence and properly determined that the issue of whether there was a reasonable probability that he would not have been prosecuted or convicted if exculpatory results were obtained through DNA testing of the hat was fully and fairly litigated in the proceedings on the first § 54-102kk petition.