State Of Conn. v. Kendall.

• Decision Date: 14 September 2010
• Docket Number: No. 30861.,30861.
• Citation: 123 Conn.App. 625,2 A.3d 990
• Parties: STATE of Connecticut v. Michael KENDALL.
• Court: Connecticut Court of Appeals

123 Conn.App. 625

2 A.3d 990

STATE of Connecticut

v.Michael KENDALL.

No. 30861.

Appellate Court of Connecticut.

Argued April 5, 2010.

Decided Sept. 14, 2010.

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James B. Streeto, assistant public defender, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Donna Mambrino, senior assistant state's attorney, and Sandra L. Tullius, former senior assistant state's attorney, for the appellee (state).

BEACH, FLYNN and SCHALLER, Js.

BEACH, J.

The defendant, Michael Kendall, appeals from the judgment of conviction, following a jury trial, of one count of capital felony in violation of General Statutes § 53a-54b(7), one count of capital felony in violation of General Statutes § 53a-54b(8), three counts of murder in violation of General Statutes § 53a-54a and one count of arson in the first degree in violation of General Statutes § 53a-111(a)(1). The defendant was sentenced to a term of life imprisonment without the possibility of release. This appeal, originally filed in our Supreme Court, was transferred to this court by the Supreme Court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. On appeal, the defendant claims that (1) he was deprived of his right to a fair trial as a result of numerous instances of prosecutorial impropriety, (2) the trial court abused its discretion in denying his motion for a competency evaluation, (3) the court improperly denied his Batson ¹ challenges, (4) the court erred in allowing into evidence certain hearsay statements of a deceased person under the spontaneous utterance exception to the hearsay rule, (5) the court erred in instructing the jury on the credibility of witnesses and (6) the court erred in refusing to charge the jury on diminished capacity. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant. In December, 2003, the defendant lived at 42 Great Hill Road in East Hartford with his wife, Ramona Kendall and their two daughters, Kayla Kendall, who was sixteen years old, and Alexis Kendall, who was twelve years old. Ramona Kendall's father, Adam Alston, also was staying at the residence. The Kendalls' home was part of a row of six connected apartments. Katrea Anglin and Kiana Alston, daughters from Ramona Kendall's prior marriage, lived in a nearby apartment at 46 Great Hill Road.

The defendant and Ramona Kendall had a contentious relationship during their nineteen year marriage. During that time the defendant physically and emotionally abused her. He told friends that if Ramona Kendall ever left him, he would “take her out” and that “sometimes you feel like you want to kill your whole family.” In 2003, Ramona Kendall pursued divorce proceedings against the defendant. As part of those proceedings, the court granted her exclusive use of the premises at 42 Great Hill Road, the defendant was ordered to leave the premises by December 13, 2003, and the children were to remain in the house. The defendant was upset with the court order and wanted to take his daughters with him.

On December 13, 2003, between 4 and 5 a.m., Anglin was awakened from sleep on the couch in her sister's apartment at 46 Great Hill Road by someone's banging on the front door. Kiana Alston, who had been asleep upstairs, also heard the banging and ran down the stairs to the front door. When Anglin opened the door, she saw Adam Alston wearing a thermal undershirt, unzipped pants and no shoes, despite the cold weather. He was shaking, crying and very upset. He stated: “Oh, Lord, oh, Lord, Michael done shot Mona and the kids and caught them on fire.” Anglin immediately dialed 911.

Upon arriving at the scene, James Sopelak, a firefighter with the East Hartford fire department, observed flames coming from a second floor window of 42 Great Hill Road. After entering the apartment, Sopelak found a girl lying at the top of a landing on the stairs. Not knowing whether the girl was alive, Sopelak carried her outside and placed her on the lawn. John Colli, a fire department engine company captain, checked for a pulse and determined that the girl, later identified as Alexis Kendall, was deceased. Firefighters Daniel Wasilewski and Richard Stepp then entered the apartment. Upon searching the front bedroom, Wasilewski discovered two more victims, later identified as Ramona Kendall and Kayla Kendall. Wasilewski discovered one victim by the bedroom door and the other near the front window of the bedroom. He concluded that neither victim was “viable” and left both bodies where he had found them.

Michael Laraia, an employee of the state fire marshal's office, investigated the cause and origin of the fire. On the basis of his investigation, he determined that the fire had two separate origins: the landing on the staircase where the first victim had been found and the front bedroom where the next two victims had been found. Laraia concluded that the cause was of “deliberate human hand and design.” Forensic pathologists from the chief medical examiner's office performed autopsies, the results of which revealed that the cause of death of each victim was a gunshot wound to the head. The medical examiners opined that each victim died before the fire started. They based that determination on the lack of soot in the victims' airways and the lack of carbon monoxide in their blood.

Thereafter, the police attempted to locate the defendant. On January 12, 2004, Michael Allen, a Hartford police officer, responded to a call reporting that the defendant had been seen near Asylum Avenue. Allen found the defendant on a staircase inside an apartment building on Asylum Avenue. At the time of his arrest, the defendant had a fully loaded .38 caliber revolver in his left front pants pocket. The bullets recovered from the bodies of the victims were found to have been fired from the handgun found in the defendant's possession at the time of his arrest. Also found on the defendant were newspaper obituaries for all three victims.

The defendant thereafter was charged, by way of long form information, with one count of capital felony in violation of § 53a-54b(7) for the murder of two or more persons at the same time or in the course of a single transaction, one count of capital felony in violation of § 53a-54b(8) for the murder of a person under sixteen years of age, three counts of murder and one count of arson in the first degree.

The defendant testified at trial. He denied killing the victims. According to the defendant, he was awakened on the morning in question by popping or crunching sounds. When he got up to investigate the sounds, he saw that the apartment was on fire and noticed a person lying at the top of a flight of stairs. He testified that he saw a gun, which he previously had found in his deceased uncle's clothing, at the bottom of the stairs. He took the gun and fled.

Following a jury trial, the defendant was convicted of all counts in the information. During the penalty phase, the jury found that the state had not proven an aggravating factor beyond a reasonable doubt. The defendant thereafter was sentenced to a total effective sentence of life imprisonment without the possibility of release for the capital felony charges ² and a consecutive twenty-five year sentence on the arson charge. This appeal followed.

I

The defendant first claims that he was deprived of his right to a fair trial as a result of numerous instances of prosecutorial impropriety. We disagree.

To the extent that the defendant did not object to the improprieties at trial, he claims on appeal that such a failure to object does not preclude review of his claim. As our Supreme Court has recognized, “a claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987).” State v. Gould, 290 Conn. 70, 77, 961 A.2d 975 (2009). ³

“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial....” (Internal quotation marks omitted.) State v. Angel T., 292 Conn. 262, 275, 973 A.2d 1207 (2009). We will address the defendant's claims of prosecutorial impropriety in turn.

A

The defendant claims that throughout the trial, commencing with jury selection, the state attempted to inflame the passions of the jury by injecting emotion into the case. We are not persuaded.

“A prosecutor may not appeal to the emotions, passions and prejudices of the jurors.... [S]uch appeals should be avoided because they have the effect of diverting the jury's attention from [its] duty to decide the case on the evidence.... When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Citation omitted; internal quotation marks omitted.) State v. Mills, 57 Conn.App. 202, 209, 748 A.2d 318, cert. denied, 253 Conn. 914, 915, 754 A.2d 163 (2000).

The defendant argues that the prosecutor committed impropriety during jury selection when she commenced her introduction of the state's...