State v. Holliday

• Decision Date: 28 September 2004
• Docket Number: (AC 23568).
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. DEAN HOLLIDAY.

85 Conn. App. 242

856 A.2d 1041

STATE OF CONNECTICUT v. DEAN HOLLIDAY.

(AC 23568).

Appellate Court of Connecticut.

Argued June 1, 2004.

Officially released September 28, 2004.

Schaller, West and McLachlan, Js.

Deborah G. Stevenson, special public defender, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Paul N. Rotiroti, assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, Dean Holliday, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a)(2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a)(2), and attempt to commit robbery in the second degree in violation of General Statutes §§ 53a-49 and 53a-135(a)(1). On appeal, the defendant claims that (1) there was insufficient evidence to support the conviction, (2) the trial court improperly admitted evidence of prior misconduct, (3) the court improperly admitted his statement to the police and (4) the prosecutor committed misconduct that resulted in a denial of the defendant's due process rights to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and his fiancee, Marisa Bones, operated a convenience store in Hartford that sold tobacco products. The business failed and, on April 4, 2001, the defendant was in the process of cleaning the retail store to sell the business. Between noon and 1 p.m. that day, the defendant, in Bones' car, drove to the Veterans Administration Federal Credit Union in Newington and parked in a no parking zone. Before entering the building, the defendant pulled the dust mask that he had used for cleaning over his face. He also wore latex gloves, heavy clothes and a backpack.

The defendant's appearance alarmed an employee, who contacted Diane Jarvis, the chief executive officer of the credit union. She approached the defendant, who lifted his mask slightly and asked if a person who was not a member of the credit union could cash a check. Jarvis told the defendant that he could not cash a check there, and the defendant thanked Jarvis and exited the building. The encounter lasted approximately forty-five seconds. The defendant then got into the car and left the area. Jarvis contacted the police to inform them of the defendant's suspicious behavior. Later that evening, the defendant called his friend, Hector Arriola, and expressed his low opinion of the credit union's security.

The next day, Jarvis told her employees to be prepared for trouble on the basis of the incident with the defendant the previous day. Meanwhile, the defendant met with Arriola at the defendant's store, and they proceeded to the credit union. Upon their arrival, they parked their car close to the credit union in a no parking zone. The credit union's door was propped open to cool the building, as it was a warm day. An employee of the credit union, Stacey Rechenberg, was walking to the front door and, contemporaneously, the defendant and Arriola got out of the car wearing latex gloves and dust masks. Rechenberg saw them and then saw the defendant reach into the backseat of the car and remove a black bag. Cognizant of the earlier warning, Rechenberg slammed and locked the door. Another employee contacted Jarvis, who in turn activated the alarm and telephoned the police.

The defendant and Arriola fled the scene. The defendant drove at a high rate of speed toward West Hartford, proceeding through traffic signals, weaving through traffic and driving on the pedestrian walkway. Newington and West Hartford police responded, and pursued the defendant and Arriola into West Hartford, where they attempted to evade the police by entering an industrial area and then exiting the car and proceeding on foot. The change in tactics did not help the defendant and Arriola, however, as a police canine tracked the pair to a dumpster approximately two miles from the car. The police arrested the defendant and Arriola. The police then brought Jarvis, Rechenberg and another employee to the dumpster where they individually identified the defendant, Arriola and the car.

The defendant and Arriola were placed in separate police cars and taken to police headquarters. The police searched the car and the surrounding area. In the car, the police found two pairs of latex gloves, two dust masks, two duffel bags, a bag containing numerous smaller bags of marijuana totaling 22.5 grams, and a.22 caliber shell. At police headquarters, the defendant confessed that he knew that Arriola was planning to rob the credit union and that Arriola frequently carried a large military knife and a silver handgun. On the basis of that information, the police, with the defendant, reexamined the area where the car was discovered. The police recovered a silver, .22 caliber semiautomatic handgun near where the defendant and Arriola had left the car.

After that trip, the defendant was returned to police headquarters where he gave another statement. The defendant admitted, inter alia, that (1) he had spoken to Arriola the previous night and told him that the security was "weak" and "lacking," (2) he and Arriola had driven to the credit union that morning, (3) he had provided the mask for Arriola, (4) Arriola had donned the mask and exited the car, (5) he had known that Arriola was going to rob the credit union, (6) when the employee closed the door to the credit union, he thought that they had been detected and that the police had been called, (7) he had fled from the credit union because the car had illegal marker plates and he and Arriola had marijuana, (8) in his flight from the police, he had broken several traffic laws and (9) his actions were "wrong."

In addition, the jury also reasonably could have found that on August 30, 1995, the defendant, wearing a nylon stocking over his head and carrying a BB gun, entered a West Hartford bank. He robbed the bank, using the BB gun to ensure the employees' compliance. After taking money and placing it in a backpack that he was carrying, he left the bank. The police caught the defendant later on the same day. The defendant confessed that he had robbed the bank to satisfy a debt to a Bridgeport drug dealer who had been threatening to harm him. That incident resulted in his conviction of robbery in the second degree and larceny in the first degree. The jury could have considered that evidence only when determining the defendant's intent. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that there was insufficient evidence to support the conviction. The defendant's argument is that the state failed to prove all of the required elements of the crimes. We are not persuaded.

"The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Elsey, 81 Conn. App. 738, 743-44, 841 A.2d 714, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004). "[T]he 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." (Internal quotation marks omitted.) Id., 744.

"A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." General Statutes § 53a-133. It is robbery in the first degree if, in the course of committing the robbery as previously described, the defendant or one of his accomplices, in the commission of the crime or in fleeing from it, "is armed with a deadly weapon . . . ." General Statutes § 53a-134 (a) (2). It is robbery in the second degree if the defendant "is aided by another person actually present . . . ." General Statutes § 53a-135 (a) (1).

"A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." General Statutes § 53-48 (a).

"A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." General Statutes § 53a-49 (a).

The defendant's confession provided all the proof necessary to satisfy the elements of the charged crimes. The defendant spoke with Arriola about security and about meeting him in the morning of the robbery, which constituted the agreement for conspiracy. Se...