State v. Holley

• Citation: 160 Conn.App. 578,127 A.3d 221
• Decision Date: 20 October 2015
• Docket Number: No. 37166.,37166.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Kenny HOLLEY.

160 Conn.App. 578

127 A.3d 221

STATE of Connecticut

v.Kenny HOLLEY.

No. 37166.

Appellate Court of Connecticut.

Argued April 13, 2015.

Decided Oct. 20, 2015.

Raymond L. Durelli, assigned counsel, for the appellant (defendant).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and KELLER and PRESCOTT, Js.

KELLER, J.

The defendant, Kenny Holley, appeals from the judgment of conviction, rendered following a jury trial, of felony murder in violation of General Statutes § 53a–54c, home invasion in violation of General Statutes § 53a–100aa (a)(1), conspiracy to commit home invasion in violation of General Statutes §§ 53a–48 (a) and 53a–100aa (a)(1), burglary in the first degree in violation of General Statutes § 53a–101 (a)(2), and robbery in the first degree in violation of General Statutes § 53a–134 (a)(2).¹ The defendant claims that (1) the evidence did not support his conviction of robbery in the first degree, burglary in the first degree, or felony murder; (2) the court violated his right to present a defense when it precluded him from presenting his version of the facts related to certain injuries sustained by another person involved in the crimes; (3) the court made several errors in the admission of evidence; and (4) the court improperly denied his motion for a mistrial.² We reverse the judgment of the trial court and remand the case for a new trial.

On the basis of the evidence presented at trial, the jury reasonably could have found that, at the time of the events at issue, the victim, William Castillo, lived in an apartment in East Hartford with his girlfriend, Tami Schultz. The victim earned money from selling sneakers both from his automobile and from his residence. At approximately 3:15 p.m. on June 30, 2009, while Schultz was out shopping, the defendant and Donele Taylor entered the victim's residence. A violent struggle involving the victim ensued, during which both Taylor and the victim sustained physical injuries. Notably, the victim bit Taylor on his right wrist. Before the defendant and Taylor left the victim's residence, which they ransacked in search of valuables, the victim sustained multiple gunshot wounds.

When the defendant and Taylor fled the victim's residence, the defendant was in possession of property belonging to the victim, specifically, cash and a shoe box. At 3:24 p.m., the victim attempted to dial 911 on his cellphone but he was unable to do so and dialed "922" instead. He perished on his kitchen floor from a gunshot wound in the area of his left chest. A neighbor of the victim, alerted to the sound of uncharacteristically loud music, fighting, gunshots, and pleas for help originating from the victim's residence, called 911 at 3:25 p.m. By 3:30 p.m., the police arrived at the scene, where they discovered the lifeless victim.

Immediately upon leaving the victim's residence, the defendant and Taylor proceeded to a nearby bus stop that was one-tenth of a mile from the crime scene, from which, at 3:22 p.m., they boarded a bus that transported them to downtown Hartford. At this time, the defendant was carrying a backpack that contained the cash and a shoe box. A fellow passenger overheard Taylor comment to the defendant that Taylor had been bitten by a dog, and the defendant was overheard remarking that "it was a big dog." Images of the defendant and Taylor running toward the bus stop were captured by a video surveillance camera located at a nearby convenience store, and images of the defendant and Taylor while they were on the bus were captured by a video surveillance camera located on the bus. In the video from the bus, the defendant appears to remove cash from his backpack and appears to hand something to Taylor from his backpack.

By disseminating to the public some of the still images of the defendant and Taylor from the surveillance footage captured on the bus, the police gained information about their identities. When the police interviewed Taylor on July 16, 2009, police observed injuries on or about his hands. Following an unrelated shooting incident in Hartford, the police came to possess a .22 caliber Beretta and determined that it previously had been owned by Taylor. Forensic analysis of the gun and of shell casings found at the crime scene involving the victim linked the gun, and thus Taylor, to the crimes. Moreover, forensic analysis of DNA samples from Taylor and of DNA obtained from the brim of a baseball cap that was found at the crime scene linked Taylor to the crimes. Having discussed some of the facts and evidence underlying the state's case, we will discuss additional relevant facts as they relate to the specific claims raised in the present appeal.

I

First, the defendant claims that the evidence did not support his conviction of robbery in the first degree, burglary in the first degree, or felony murder.³ We disagree.

"The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt....

"Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical....

"Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty." (Internal quotation marks omitted.) State v. Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).

A

With regard to the conviction of robbery in the first degree, the defendant argues that the state failed to prove beyond a reasonable doubt that "[he] used or threatened the use of physical force on the victim for any reason, let alone for the purpose of accomplishing the larceny." The defendant argues that "[t]o have arrived at its decision, the jury would have had to resort to speculation and conjecture, and to have drawn unwarranted inferences from the facts presented." The defendant acknowledges that the evidence permitted a finding that Taylor entered the victim's residence, the victim bit Taylor on the wrist during a struggle, and that "[a]t some point, the victim was shot." The defendant accurately observes that the state did not present any physical evidence to demonstrate that he had been in the victim's residence. The defendant argues that, to the extent that the state presented evidence that "[a] teen" got on the bus with Taylor, was carrying a backpack, and commented on " 'a big dog,' " such evidence merely supported a finding that this person was present when the victim bit Taylor. The defendant does not claim that the evidence did not demonstrate his guilt as an accessory. His analysis of the claim is limited to demonstrating that the state was limited to proving his criminal liability under § 53a–134 (a)(2) solely as a principal, and that it failed to do so.

The state disagrees that it was limited to proving the defendant's criminal liability as a principal. The state argues that to obtain a conviction under an accessorial theory of liability, the law does not require that the state formally charge an accused as an accessory. The state argues that the information put the defendant on notice that it would attempt to demonstrate criminal liability under alternate theories, its evidence demonstrated that the state attempted to prove the defendant's criminal liability as an accessory, and the evidence amply demonstrated that the defendant, as an accessory, was guilty of robbery in the first degree.

Section 53a–134(a), with which the defendant was charged, provides: "(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a–133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon...." General Statutes § 53a–133 provides: "A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of...