SKAKEL V. STATE—DISSENT PALMER, J., Dissenting

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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** SKAKEL v. STATEÐDISSENT PALMER, J., dissenting. Contrary to the determina- tion of the trial court, I believe that the petitioner, Michael C. Skakel, is entitled to a new trial for the 1975 murder of Martha Moxley (victim) in the Belle Haven section of the town of Greenwich due to the discovery of significant new evidence that was not available at the time of his original trial. In particular, I am con- vinced that the trial court improperly denied the petitioner a new trial on the basis of information brought forward by Gitano ``Tony'' Bryant1Ðinformation that directly implicates two other suspects, Adolph Has- brouck and Burton Tinsley, in the victim's murderÐ after failing to evaluate the significance of that newly discovered evidence in light of the nature and strength of the original trial evidence. I reach this conclusion because the evidence that Bryant provided during the course of his lengthy and detailed video-recorded inter- view satisfies all of the requirements necessary for a new trial. First, the Bryant evidence is highly relevant because it identifies Hasbrouck and Tinsley as the per- sons actually responsible for the victim's murder. Sec- ond, as the trial court expressly found, the Bryant evidence, although hearsay, would be admissible at a new trial under the declaration against penal interest exception to the hearsay rule because, inter alia, corrob- orating circumstances clearly indicate its trustworthi- ness.2 I also conclude that the Bryant evidence is admissible under the residual exception to the hearsay rule.3 Third, because the evidence is marked by substan- tial indicia of reliability, and because the record reveals nothing about Bryant or his background to suggest either that he is the kind of person who would provide testimony falsely implicating two innocent people in a brutal murder or that he had any reason or motive to do so, the trial court improperly failed to consider that evidence in the overall context of the original trial evidence.4 Finally, at the very least, it is likely that this new evidence, when considered in light of the state's thin case against the petitioner, would give rise to a reasonable doubt about whether the petitioner was involved in the victim's murder. The likelihood of an acquittal upon retrial is enhanced by other newly discovered evidence, namely, the relationship between the lead investigator in the case, Frank Garr, and Leonard Levitt, the author of a book about the victim's murder on which Garr collaborated, and the views expressed by Garr in that book reflecting, inter alia, his strong and long-standing feelings of antipathy toward the petitioner and the petitioner's family. I therefore dissent. I LEGAL STANDARD GOVERNING NEW TRIAL PETITIONS I begin my review of the petitioner's claim with a brief summary of the legal standard governing the petitioner's contention that he is entitled to a new trial on the basis of newly discovered evidence. As this court stated in Asherman v. State, 202 Conn. 429, 521 A.2d 578 (1987), to prevail on a petition for a new trial, ``[t]he petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.'' Id., 434. Because it is undisputed that the Bryant evidence satisfies the first three Asherman requirements, the primary issue raised by the petitioner's appeal implicates only the fourth and final requirement. In Shabazz v. State, 259 Conn. 811, 792 A.2d 797 (2002), we elaborated on the fourth prong of the Asher- man test, stating: ``The trial court must always consider the newly discovered evidence in the context of the evidence presented in the original trial. In so doing, it must determine, first, that the evidence passes a minimum credibility threshold. That is, if, in the trial court's opinion, the newly discovered evidence simply is not credible, it may legitimately determine that, even if presented to a new jury in a second trial, it probably would not yield a different result and may deny the petition on that basis. If, however, the trial court deter- mines 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 satis- fied.'' (Citation omitted.) Id., 827±28; accord Adams v. State, 259 Conn. 831, 838, 792 A.2d 809 (2002). Thus, we apply a two part test for the purpose of determining whether the newly discovered evidence warrants a new trial under the final Asherman factor. First, the petitioner must demonstrate that the evidence is ``not incredible''; Adams v. State, supra, 259 Conn. 844; because, if the evidence truly is incredible, the second jury would not credit it. See, e.g., Smith v. State, 141 Conn. 202, 208, 104 A.2d 761 (1954) (no injustice done in denying petition for new trial when newly discovered evidence reasonably is found to be `ùtterly unworthy of credence . since it should be pre- sumed that no jury will believe an incredible story''). Because a new trial is required if the newly discovered evidence, when considered in the context of the original trial evidence, gives rise to a reasonable doubt concern- ing the petitioner's guilt, that evidence need not be so convincing or persuasive as to be compelling. Rather, the evidence must only meet a ``minimum credibility threshold''; Shabazz v. State, supra, 259 Conn. 827; accord Adams v. State, supra, 838; a standard that requires the petitioner merely to establish that the evidence is not so lacking in credibility as to be wholly unworthy of belief.5 See Adams v. State, supra, 844. Upon satisfaction of that minimum requirement, the court then must proceed to the second step of the analytical process, which ``require[s] [the court] to determine whether the newly discovered evidence is sufficiently credible [and of such a nature] that, if admitted in a new trial and reviewed by a second jury together with all of the evidence presented at the original trial, it is likely to produce a different result''; (emphasis added) id.; see also Shabazz v. State, supra, 827; that is, it is likely to give rise to a reasonable doubt of the petitioner's guilt, `òr otherwise [to] avoid an injustice . .''6 (Internal quotation marks omitted.) Adams v. State, supra, 838; accord Shabazz v. State, supra, 828. We review a trial court's decision with respect to a petition for a new trial under an abuse of discretion standard. Shabazz v. State, supra, 259 Conn. 820. When considering the newly discovered evidence in light of the evidence adduced at the petitioner's original trial, however, this court is no less capable than the trial court of assessing the strength of the original trial evidence if, as in the present case, the trial court did not preside over the petitioner's original trial. See, e.g., Common- wealth v. Lykus, 451 Mass. 310, 325, 885 N.E.2d 769 (2008) (``We defer to a judge's assessment of the credibility of witnesses at a hearing on the motion for a new trial. However, we regard ourselves in as good a position as a motion judge who was not the trial judge to assess the trial record.''); Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986) (same). The petitioner first contends that the trial court improperly concluded that the newly discovered Bryant evidence was sufficiently trustworthy to be admissible as a declaration against penal interest but nevertheless so lacking in credibility as to justify the trial court's failure to consider that evidence in the light of the original trial evidence. Second, the petitioner claims that this court should reverse the trial court's denial of his new trial petition because the trial court improperly failed to consider his separate claim that a new

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