• Connecticut Supreme Court
  • SC 19026
  • Aug 06 2013 (Date Decided)
  • Palmer, J.

The reasonable probability standard of Connecticut General Statutes §54-102kk conditions post-conviction access to DNA evidence on a threshold showing that exculpatory test results would actually undermine confidence in the verdict. Following a jury trial, John Dupigney was convicted of murder and related firearms offenses for the shooting death of Morris Lewis, over drug trafficking turf. Dupigney's conviction was affirmed on appeal. The Supreme Court affirmed the trial court's denial of Dupigney's petition for post-conviction DNA testing of a hat recovered from the scene. Dupigney filed a second petition for DNA testing under C.G.S. §54-102kk, alleging new evidence to overcome the Supreme Court's rationale for upholding the denial of his first petition—the failure to establish a sufficient link between the hat and shooter and that the state's case was strong. The trial court dismissed the petition. The petitioner appealed, claiming that the court incorrectly concluded that the doctrine of res judicata barred the petition because the evidence was available during the criminal trial and first petition. The Supreme Court found it unnecessary to decide that claim, because even if resolved in the petitioner's favor, the second petition would still fail on its merits. The judgment was affirmed on this alternative ground. Even crediting proposed eyewitness testimony that the hat recovered appeared to be that worn by the shooter and assuming the dubious value of proposed testimony implicating another as the murderer, the petitioner still was not entitled to DNA testing. Assuming the best case scenario for the petitioner—that DNA testing revealed biological material belonging to someone other than the petitioner or victim—it did not undermine the Court's confidence in the verdict and was insufficient for an order for DNA testing under C.G.S. §54-102kk. The second petition boiled down to a request for a fishing expedition for evidence allowing the petitioner to point a finger at someone else. The reasonable probability standard of C.G.S. §54-102kk was intended to prevent such open-ended excursions. The characterization of the state's evidence as strong was an understatement. The chance that the petitioner was misidentified by three eyewitnesses, two of whom knew him well, was slim. The shooter rode in a turquoise Dodge Neon. The chance that the petitioner, as testimony indicated, and the "real killer" were both driving in turquoise Neons was truly remote.