September 14, 2017
Allison M. Near, assigned counsel, with whom, on the brief,
was Michael O. Sheehan, assigned counsel, for the appellant
Timothy J. Sugrue, assistant state's attorney, with whom
were Stacey M. Miranda, senior assistant state's
attorney, and, on the brief, Patrick J. Griffin, state's
attorney, for the appellee (state).
Rogers, C. J., and Palmer, Eveleigh, McDonald, Robinson,
D'Auria and Espinosa, Js. [*]
October, 1990, the petitioner, Melvin Jones, was arrested and
charged with the murder of Wayne Curtis, who had been found
shot to death in New Haven just a few days before the
petitioner's arrest. The case was tried to a jury, which
found the petitioner guilty. Nearly twenty years after the
crime occurred, in 2010, certain pieces of evidence from the
petitioner's trial were tested for the presence of DNA
pursuant to an agreement with the state. He later relied on
that testing to petition for a new trial on the basis of
newly discovered evidence. In his petition, he claimed that
the new DNA testing demonstrated that he did not commit the
murder. The trial court disagreed, concluding that the new
DNA results, although valid, failed to establish that the new
evidence would likely produce a different result in a new
trial. The Appellate Court, reviewing the trial court's
decision for an abuse of discretion, upheld that decision.
Jones v. State, 165 Conn.App. 576, 604, 140
A.3d 238 (2016).
certified appeal to this court, the petitioner contends that
the Appellate Court should have engaged in a de novo review
of whether the new evidence was likely to produce a different
result. He argues that de novo review is appropriate because
the credibility of the new evidence is undisputed, requiring
only the application of the legal standards to the facts
found by the trial court. He further asserts that, had the
Appellate Court properly engaged in a de novo review, it
would have decided the case in his favor.
agree with the petitioner that de novo review is appropriate
in the specific circumstances of this case, namely, when the
petition for a new trial is decided by a judge who did not
preside over the original trial and no fact-finding was
necessary because both parties agreed that the new evidence
was fully credible. Applying a de novo standard of review, we
nevertheless disagree that the petitioner is entitled to a
new trial. We therefore affirm the Appellate Court's
AND PROCEDURAL HISTORY
following facts from the petitioner's criminal trial and
new trial proceedings are relevant to this appeal. On October
17, 1990, police officers were called to Howard Avenue in New
Haven where they found Wayne Curtis shot to death in the
driver's seat of his car, which was parked on the street.
The victim had a bullet wound through his abdomen and several
head wounds from blunt force trauma. Police investigators
found bloodstains on the victim's clothing and on the
interior of the car, including on the driver's side door.
At the petitioner's criminal trial, a witness testified
that he saw the petitioner wearing a camouflage jacket and
standing outside the victim's car, arguing with the
victim, shortly before he heard gunshots. Another witness who
was a few blocks away from the crime scene testified that,
shortly after hearing gunshots, she saw the petitioner, whom
she recognized from the neighborhood, run to a dumpster, take
off a camouflage jacket and throw it into the dumpster. She
recovered the jacket and later gave it to the police. In the
pocket of the jacket, officers found a receipt for mechanical
work done on the victim's car two years earlier. The
jacket was tested for blood and for gunshot residue, but the
tests returned negative results for the presence of either.
The police examined the victim's car but found no
fingerprints or hair from the petitioner.
petitioner was first tried for the murder and found guilty by
a jury in 1992 (first criminal trial). This court later
reversed the judgment of conviction and ordered a
retrial. State v. Jones, 234
Conn. 324, 359, 662 A.2d 1199 (1995).
retrial was held in March, 1996 (second criminal trial). At
his second criminal trial, the petitioner presented testimony
from a new witness who claimed that he saw the shooting and
that the petitioner was not the shooter. The jury
nevertheless found the petitioner guilty of the victim's
murder and of carrying a pistol without a permit.
The trial court sentenced the petitioner to a total effective
sentence of life imprisonment without the possibility of
release. The Appellate Court upheld the petitioner's
conviction and sentence. State v. Jones, 50
Conn.App. 338, 369, 718 A.2d 470 (1998), cert. denied, 248
Conn. 915, 734 A.2d 568 (1999).
2010, the petitioner sought, and the state agreed to, DNA
testing of the jacket recovered from the dumpster and of the
hairs found in the victim's car using techniques not
available at the time of his second criminal trial. The test
of the jacket identified a mixture of DNA material from
multiple contributors. The victim and the petitioner were
both excluded as contributors to the mixture. The petitioner
also was excluded as the source of the hairs tested.
basis of this new evidence, the petitioner filed a petition
for new trial based on newly discovered evidence. He claimed
that the new DNA evidence established that he had not worn
the jacket linked to the victim, but that others had,
demonstrating that he was not the perpetrator of the crime.
In support of his petition, he presented the testimony of two
forensic examiners from the Department of Emergency Services
and Public Protection, Division of Scientific Services (state
forensic science laboratory), who performed the DNA analysis
on the jacket. The petitioner's witnesses confirmed the
results of the testing but also explained that a lack of any
of the petitioner's DNA on the jacket did not establish
that the petitioner had never worn or touched the jacket. The
jacket was tested only for ‘‘wearer DNA''
by swabbing the inside cuffs and collar of the jacket.
Additionally, the witnesses testified that any DNA previously
deposited on the jacket could have degraded over time and
that the mixture of the DNA that was detected from other
individuals could have been deposited by anyone who had
touched the areas of the jacket that were tested, including
investigators, forensic personnel who originally examined the
jacket for gunshot residue, attorneys, court personnel, and
jurors. In addition to these two witnesses, the petitioner
also presented a DNA test report indicating that certain
hairs taken from the victim's vehicle did not come from
state did not present any witnesses or dispute the testimony
of the petitioner's witnesses. The state, instead, argued
that the petitioner's evidence failed to establish a
probability of a different result in a retrial because the
test results neither established that the petitioner had
never touched the jacket nor established that one of the
persons who contributed to the DNA mixture found on the
jacket was the perpetrator of the crime.
trial court denied the petition. The court first determined
that the new evidence met the first three elements for
granting a new trial in that the evidence was (1) newly
discovered, (2) material to the issues at trial, and (3) not
cumulative. See Asherman v. State, 202
Conn. 429, 434, 521 A.2d 578 (1987). The court further
concluded, however, that the petitioner had failed to
establish that the new evidence would probably produce a
different result in a new trial, the fourth and final element
required for the granting of a new trial. See id. In
its analysis, the court credited the conclusions presented by
the petitioner's witnesses, finding that
‘‘the methods used to perform the DNA analyses
were scientifically appropriate, that the methods were
expertly executed, and that the outcomes obtained were
accurate.'' The court observed that the absence of a
DNA match to the petitioner or the victim ‘‘does
not, of course, necessarily imply that neither had contact
with the jacket or that the petitioner was never in the
victim's car. The results simply demonstrate [that] their
DNA was not detected on or in the items tested.'' The
trial court determined that the new evidence would not impact
the outcome of the case because the lack of any forensic link
to the petitioner had already been argued at the second
criminal trial, and the jury had found the petitioner guilty
on the basis of eyewitness testimony despite the lack of any
supporting physical evidence. The court lastly explained that
the state would be able to argue, in a new trial, that the
lack of the petitioner's DNA on the jacket could be the
result of a number of factors, including that any DNA
deposited could have substantially degraded or have been
removed by earlier forensic testing and that the discovery of
other DNA profiles on the jacket could be the result of
handling by other persons in the decades after the crime
occurred. The trial court later granted a request by the
petitioner to appeal the trial court's decision pursuant
to General Statutes § 54-95 (a).
Appellate Court upheld the denial of the petition. Jones
v. State, supra, 165 Conn.App. 604. In
his arguments to the Appellate Court, the petitioner asserted
that the court should not defer to the trial court's
conclusions on whether the new evidence would produce a
different result but should review that aspect of the trial
court's decision de novo and conclude that he is entitled
to a new trial. Id., 598-600 n.13. The Appellate
Court disagreed that de novo review was appropriate.
Id., 599 n.13. It instead applied the abuse of
discretion standard and concluded that the trial court had
not abused its discretion in denying the petition for a new
trial. Id., 600.
granted certification to appeal on the following question:
‘‘Did the Appellate Court properly determine that
its review of the decision of the [trial] court is limited to
abuse of discretion as distinguished from de novo
review?'' Jones v. State, 322 Conn.
906, 140 A.3d 977 (2016).
petitioner first asserts that, contrary to the Appellate
Court's conclusion and our prior case law, the trial
court's determination that the newly discovered evidence
is unlikely to produce a different result should be reviewed
de novo. The petitioner's claim for de novo review is
premised upon the fact that the parties do not dispute the
credibility of the petitioner's new evidence, only its
impact on the second criminal trial evidence, and the judge
hearing the new trial petition did not preside over the
second criminal trial. We agree that de novo review of the
trial court's application of the legal standard is
appropriate in these circumstances.
cases establish that, to obtain a new trial on the basis of
newly discovered evidence, the petitioner must establish that
the newly proffered evidence (1) is actually newly
discovered, (2) would be material in a new trial, (3) is not
merely cumulative, and (4) would probably produce a different
result in a new trial. Asherman v. State,
supra, 202 Conn. 434. This standard is strict and is
‘‘meant to effectuate the underlying equitable
principle that once a judgment is rendered it is to be
considered final, and should not be disturbed by post-trial
[proceedings] except for a compelling reason.''
(Internal quotation marks omitted.) Id. The parties
in the present case do not dispute that the petitioner's
new DNA evidence meets the first three elements for granting
a new trial. They disagree only on the fourth
Asherman element, namely, whether it would produce a
different result in a new trial.
the fourth element of Asherman, ‘‘[t]he
[petitioner] must persuade the court that the new evidence he
submits will probably, not merely possibly, result
in a different verdict at a new trial . . . . It is not
sufficient for him to bring in new evidence from which a jury
could find him not guilty-it must be evidence which
persuades the judge that a jury would find him not
guilty.'' (Citation omitted; emphasis in original.)
Lombardo v. State, 172 Conn. 385, 391, 374
A.2d 1065 (1977); see also Skakel v. State,
295 Conn. 447, 468, 991 A.2d 414 (2010). This analysis
requires the trial court hearing the petition to weigh the
impact the new evidence might have on the original trial
evidence. See Asherman v. State,
supra, 202 Conn. 434.
petitioner has not asked us to revisit the underlying
standard requiring a probability of a different result but
has asserted that this court should review the trial
court's weighing process anew, without deference to the
trial court's decision. This claim requires us to examine
our standard of review for a trial court's decision on a
petition for a new trial based on newly discovered evidence.
of Discretion Standard of Review
repeatedly observed that a trial court's decision
granting or denying a petition for new trial, including on
the ground of newly discovered evidence, is a matter of
discretion for the trial court and is reviewable only for an
abuse of discretion. Skakel v. State,
supra, 295 Conn. 468; Shabazz v.
State, 259 Conn. 811, 820, 792 A.2d 797 (2002);
Asherman v. State, supra, 202
Conn. 434; Kubeck v. Foremost Foods Co.,
190 Conn. 667, 669-70, 461 A.2d 1380 (1983). This includes
deference to the trial court's process of weighing the
impact of the new evidence on the original trial evidence.
Skakel v. State, supra, 487 n.25
(‘‘[f]or more than one century, it has been
settled law that an abuse of discretion standard applies not
only to the trial court's ultimate decision whether to
grant the petition for a new trial, but also to its
subsidiary determinations in support of that
decision''); Pradlik v. State, 131
Conn. 682, 686, 41 A.2d 906 (1945) (in weighing impact of new
evidence, ‘‘the court compares the old testimony
with the new and decides, in the exercise of a sound
discretion . . . whether the newly discovered evidence is
likely to change the result'' [internal quotation
deference to the trial court traces to some of our earliest
cases. This court originally considered judgments on
petitions for a new trial to be discretionary and not subject
to review for error whatsoever, regardless of the grounds
claimed to justify a new trial. See, e.g., Lewis v.
Hawley, 1 Conn. 49, 50 (1814) (‘‘A
petition for a new trial on the ground of . . . newly
discovered evidence is an address to the sound discretion of
the court. . . . These are to be tested by the discretion of
the court, of which error is not predicable.''); see
also Magill v. Lyman, 6 Conn. 59, 60 (1825)
(‘‘[i]t has been so frequently, and so recently,
decided by this [c]ourt, that the granting or refusing of a
new trial, is entirely a matter of discretion, and is not the
subject of error, that it cannot now be
questioned''); Kimball v. Cady, 1
Kirby (Conn.) 41, 43 (1786) (‘‘[i]f the petition
was for a new trial, it was [a] matter of discretion with the
court to which it was preferred, to grant or negative, and
error cannot be predicated upon such decision'').
This court later determined, however, that decisions granting
or denying a petition for a new trial could be reviewed for
error. Husted v. Mead, 58 Conn. 55, 60,
66-67, 69, 19 A. 233 (1889) (reviewing and reversing trial
court decision granting new trial because of newly discovered
evidence). This court expressly articulated an abuse of
discretion standard for appeals involving new trial petitions
in Gannon v. State, 75 Conn. 576, 578-79,
54 A. 199 (1903). We have applied that standard ever since.
See, e.g., Skakel v. State, supra,
295 Conn. 468, 487 n.25.
our decisions regarding new trial petitions cite the abuse of
discretion standard without expounding on the reasons that
support treating the trial court's decision as
discretionary. See, e.g., id.; Shabazz v.
State, supra, 259 Conn. 820; Asherman
v. State, supra, 202 Conn. 434;
Kubeck v. Foremost Foods Co.,
supra, 190 Conn. 669-70; Lombardo v.
State, supra, 172 Conn. 390; Pradlik
v. State, supra, 131 Conn. 686;
Gannon v. State, supra, 75 Conn.
578-79; Magill v. Lyman, supra, 6
Conn. 60; Kimball v. Cady, supra,
1 Kirby (Conn.) 43.
a close review of our case law reveals that our deference to
the trial court appears to arise historically and primarily
from two considerations: (1) the trial judge's superior
opportunity to assess the strength of the original trial
evidence; and (2) the trial court's role as the arbiter
when the judge hearing the new trial petition also presided
over the original trial, that judge is unquestionably better
suited to assess the impact of the newly discovered evidence
in light of the evidence originally presented at trial. The
trial judge, having seen the original evidence presented as
the jury did, will have a better understanding of how the new
evidence might impact a new jury's assessment of the
original trial evidence and whether the new evidence would
likely change the result. Thus, we explained in Lewis
v. Hawley, supra, 1 Conn. 50, that
‘‘[a] petition for a new trial on the ground of
surprise and newly discovered evidence is an address to the
sound discretion of the court. The court in fact [is]
presumed to possess the whole of the testimony offered on the
trial. They have a full view of the case as it appeared to
them; with which they are to compare the surprise and newly
discovered evidence stated . . . .'' Id.;
see Gannon v. State, supra, 75
Conn. 579 (‘‘The court before which the first
trial was had, upon the facts thus presented for its
consideration, refused to grant a new trial. That action
cannot be reviewed, unless it appears that the court plainly
abused its discretion or misjudged the limits of its
discretionary power.''); see also State v.
McIntyre, 250 Conn. 526, 533, 737 A.2d 392 (1999)
(‘‘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. . . . Thus, [a] motion for a new trial is addressed
to the sound discretion of the trial court . . . .''
[Citation omitted; internal quotation marks omitted.]).
the trial court hearing a petition for a new trial has the
responsibility of assessing the credibility of the newly
discovered evidence when determining the likelihood that the
new evidence would produce a different result. See, e.g.,
Shabazz v. State, supra, 259 Conn.
822-28; Lombardo v. State, supra,
172 Conn. 390-91; Pradlik v. State,
supra, 131 Conn. 686. This responsibility arises not
only from the superior vantage point of the trial court, but
also from its role as the final arbiter of questions of
credibility and fact. Shabazz v. State,
supra, 827-28; see also Skakel v.
State, supra, 295 Conn. 487 n.25 (noting
trial court's role as fact finder and deference shown by
this court to that role); State v.
Lawrence, 282 Conn. 141, 156-57, 920 A.2d 236 (2007)
(same); Smith v. State, 141 Conn. 202, 214,
104 A.2d 761 (1954) (upholding trial court's conclusion
that new witness was not credible).
recognized that whether the new evidence would produce a
different result at a new trial often will depend on the
degree of credibility that the new evidence has.
Shabazz v. State, supra, 259 Conn.
822-24. In Shabazz, we explained that whether new
evidence would change the result of the trial often turns not
just on whether a new jury could credit, for
example, a new witness, but whether the jury would find the
new witness' testimony sufficiently credible
that it would be persuaded to reach a different result.
Id., 823. In such cases, the trial court's
credibility assessment and determination of the likelihood of
a different result are tied together, essentially as one
analysis, and the trial court must make a predictive judgment
about whether a new jury would find the new witness so
credible that it would be persuaded to reach a different
result. Id., 827-28 (‘‘[i]f . . . the
trial court determines that the evidence is sufficiently
credible so that, if a second jury were to consider it
together with all of the original trial evidence, it probably
would yield a different result or otherwise avoid an
injustice, the fourth element of the Asherman test
would be satisfied''). When the newly discovered
evidence is in the form of witness testimony, the trial court
must typically fulfill its role to assess the credibility of
that new evidence by receiving the witness' new testimony
first hand, in court. Adams v. State, 259
Conn. 831, 842, 792 A.2d 809 (2002).
the role of determining the credibility of the new evidence
falls on the trial court, we have traditionally deferred to
its ultimate conclusion on credibility and the likelihood of
a different result. For instance, in Skakel, whether
evidence from a new witness would change the result depended
on the credibility that could be given to the new evidence.
Skakel v. State, supra, 295 Conn.
486-87. Consistent with Shabazz, we deferred to the
trial court's credibility assessment and determination of
whether the new evidence would change the result, even though
the new evidence was presented in the form of a video
recording. Id., 470, 487 n.25. We therefore applied
the long-standing abuse of discretion standard and concluded
that the trial court's denial of the petition in that
case was reasonable. Id., 452, 468.
Standard of Review Under the Circumstances in the Present
present case, however, these traditional reasons for our
deference to the trial court's discretion are not
implicated, leading us to conclude that it is more
appropriate to apply a de novo standard of review, despite
our prior case law establishing an abuse of discretion
the trial judge deciding the petition did not preside at the
petitioner's second criminal trial, and, therefore, did
not enjoy any superior opportunity to assess the credibility
and strength of the second criminal trial evidence. Any
assessment of that evidence by the trial judge deciding the
new trial petition must therefore be made from a review of
the printed trial transcripts and exhibits. This ...