State v. Holloway

• Decision Date: 18 May 1990
• Docket Number: No. 7798,7798
• Citation: 577 A.2d 1064,22 Conn.App. 265
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Harold HOLLOWAY.

Page 1064

577 A.2d 1064

22 Conn.App. 265

STATE of Connecticut v. Harold HOLLOWAY.

No. 7798.

Appellate Court of Connecticut.

Argued April 11, 1990.

Decided May 18, 1990.

William F. Gallagher, Sp. Public Defender, with whom, on the brief, was Robert P. Borquez, Sp. Public Defender, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Dennis O'Connor, Sr. Asst. State's Atty., for appellee (state).

Before BORDEN, EDWARD Y. O'CONNELL and FOTI, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of conviction, after a court trial, of the lesser included offense ¹ of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3). ² He claims that the trial court should not have (1) excluded the testimony of a forensic expert witness given in response to a hypothetical question, (2) admitted the testimony of the same witness in response to a question by the state on cross-examination, (3) denied his motion for articulation, and (4) found him guilty based on the evidence presented. We affirm the judgment of the trial court.

In its memorandum of decision, the court found the following facts. At approximately 2 a.m. on May 16, 1987, the defendant, Harold Holloway, and the victim, Shirley Holloway, ³ were together in the vicinity of the Keney Grill in Hartford. They were arguing, and the defendant exerted some degree of physical force on the victim. The victim said "Stop, leave me alone," and the defendant replied, "Shut up or I'll kill you." The court further found, on the basis of the testimony of Iris Santiago, a state's witness, that between 3:30 and 4 a.m. Santiago heard and saw the defendant and the victim arguing in the vicinity of an after-hours bar on Main Street across the street from Santiago's home. The defendant was holding the victim in a headlock as he punched her in the face. Shortly thereafter, the victim screamed, "No, Harold, please Harold, no, Harold." The court also found that later Santiago, having heard a loud scream, looked out of her window and saw the defendant carrying the victim's limp body into an alley between a market and a laundromat. At approximately 6:30 a.m., the victim's body was found in a vacant lot at the end of that alley. The court concluded that the defendant had committed manslaughter.

Although not referred to in the court's decision, there was the following uncontroverted evidence. When the victim was found, she was lying on her back, naked from the waist down with her shirt and bra pulled up exposing her breasts. Her eyes were swollen, and her lips and neck were bruised. There was dried semen on her abdomen and pubic area, and blood stains on the left front part of her chest, at the junction of her right hip and abdomen, on the back of her left hand and on the inside of her left thigh. The semen and blood contained type A blood substances. There was also undisputed evidence that both the victim and the defendant had blood type O.

Wayne Carver, the state medical examiner, testified that the victim died on May 16 between 1 and 5 a.m. He also testified that the cause of death was manual strangulation, and that the blood stains had been deposited on the victim's body "about the time [when] she stopped moving, and certainly not more than a couple hours of active lifetime before she died."

I

The defendant first claims that the court should not have sustained the state's objection to a hypothetical question asked of an expert defense witness. This claim arises out of the following context.

Medical records were introduced establishing that the defendant had blood type O. Beryl Novitch, a criminalist with the state forensic laboratory, ⁴ testified for the defendant. She testified that she examined the semen and blood samples taken from the victim's body, that the victim had blood type O, and that both the semen and blood samples contained type A blood substances. She also testified that blood and semen samples came from a secreter, that is, one of the 80 percent of the population that secretes blood group substances into other body fluids, such as semen. Novitch, having been asked to assume that the semen stain came from one person, testified that it was consistent with having been deposited by a person with type A blood. She also testified that the victim was a secreter.

The defendant then asked Novitch the following hypothetical question: "Assuming that the blood type of the victim is an O and assuming that there is only one person involved in an incident with the victim, do you have an opinion with reasonable medical certainty of the blood type of the person that left the stain on the victim's body and semenal fluid on the victim's body?" (Emphasis added.) The court sustained the state's objection, presumably on the ground that the question assumed facts not in evidence, namely, that only one person was involved in the incident causing the victim's death. ⁵ The defendant excepted to the ruling.

The defendant argues that there was sufficient evidence to support the hypothesis stated in the question that only one person was involved in causing the victim's death, and that, therefore, the court should not have sustained the objection. We agree, but we conclude that the ruling was harmless.

Whether a hypothetical question is admissible is within the sound discretion of the court. State v. Hardwick, 1 Conn.App. 609, 617, 475 A.2d 315, cert. denied, 193 Conn. 804, 476 A.2d 145 (1984). It may be admissible within that discretion, even if it does not contain all the facts in evidence, as long as it presents those facts truly and fairly to each other and to the rest of the evidence, it is not worded so as to mislead or confuse the factfinder, and it is not as lacking in facts as to be without value to the decision in the case. Id; see also State v. D'Ambrosio, 14 Conn.App. 309, 319-20, 541 A.2d 880 (1988), rev'd in part on other grounds, 212 Conn. 50, 561 A.2d 422 (1989). The court's ruling will not be disturbed unless its discretion has been abused, or the error is clear and stems from a misconception of the law. State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985). Under the circumstances of this case, we conclude that the court abused its discretion in excluding the question.

Although there was no evidence that directly precluded the participation of more than one person in the victim's death, there was sufficient evidence to permit the inference that only one person was involved. Santiago testified that between 3:30 and 4 a.m. she saw and heard the defendant and the victim arguing, that the defendant had the victim in a headlock and was punching her in the face with his fist, and that she heard the victim scream the defendant's name. Santiago also testified that later she heard a loud scream and saw the defendant carrying the victim's limp body into the alley. Carver's testimony put the time of death at no later than 5 a.m. There also was evidence that between 1:30 and 2 a.m., the defendant and the victim left the Keney Grill, at which time the defendant had physically abused her and had threatened to kill her. Aside from the forensic evidence yielded by the semen and blood stains, there was no evidence of any other person's involvement in the victim's death. Furthermore, the defendant's theory of defense was that someone else hit the victim and carried her limp body into the alley. He testified that he was not in the vicinity of the Keney Grill that evening, and that he was at home at the time of the victim's death.

Under these circumstances, the court should have permitted Novitch to respond to the question. The question presented facts and evidence in accurate relation to each other and to the rest of the evidence, it was not worded in a misleading or confusing manner, and the assumption that only one person was involved in the victim's death was sufficiently rooted in the evidence to afford some value to the court as factfinder. See State v. Hardwick, supra, 1 Conn.App. at 617, 475 A.2d 315.

The state argues that the court's ruling was correct because Novitch's testimony itself, by tending to indicate the involvement of someone in addition to the defendant, belied the assumption that there was only one criminal actor, as was stated in the question. The state incorrectly limits the reasonable inferences that can be drawn from Novitch's testimony. We view her testimony as indicating at least three permissible scenarios accounting for the presence of the semen and blood on the victim's body. First, there was someone else, in addition to the defendant, involved in the victim's death; second, as the defendant argues, someone else other than the defendant was responsible for the victim's death, and the identification of the defendant by Santiago and the other witnesses must have been flawed; and, third, someone other than the defendant deposited the semen and blood on the victim's body after it was left in or near the alley. Under the facts of this case, the defendant was entitled to have Novitch give her opinion based on the defendant's theory of the case.

We conclude, however, that this ruling was harmless because we are unpersuaded that the exclusion of this evidence probably affected the decision. State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990); State v. Horton, 8 Conn.App. 376, 381-82, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986). Prior to the excluded question, Novitch, who had been asked to assume that the semen came from one person, had already testified that that person had type A blood. Furthermore, after the question was excluded, Novitch testified without objection that "[i]f this [blood] was just deposited by one person ... it could not be deposited by an ... O person. On the seminal stain, if it was a seminal stain deposited by one person ... it would not be deposited by ... an O secreter or a nonsecreter."...