State v. McKinney

• Decision Date: 21 December 2021
• Docket Number: AC 43611
• Parties: STATE of Connecticut v. William MCKINNEY
• Court: Connecticut Court of Appeals

209 Conn.App. 363

268 A.3d 134

STATE of Connecticut

v.William MCKINNEY

AC 43611

Appellate Court of Connecticut.

Argued October 4, 2021

Officially released December 21, 2021

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

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Sean P. McGuinness, assistant state's attorney, for the appellee (state).

Bright, C. J., and Alvord and Harper, Js.

ALVORD, J.

The defendant, William McKinney,¹ appeals from the judgment of conviction, rendered after a jury trial, of one count of assault of an elderly person in the second degree in violation of General Statutes § 53a-60b (a) (1).² The defendant also appeals from the court's judgment finding him in violation of his probation pursuant to General Statutes § 53a-32. The defendant claims that the court erred in (1) denying his first motion to correct an illegal sentence that he filed and (2) its rulings on several evidentiary objections during trial. We affirm the judgments of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendant's appeal. At about 11 p.m. on July 13, 2017, on the New Haven Green (Green), about fifty yards in from the street, near a fountain in the middle of the lower Green, the defendant became involved in a verbal disagreement with the victim.³ The argument quickly became physical, and the victim fell to the ground. Although the victim was on the ground, the defendant did not walk away. Instead, the defendant straddled the victim and punched him repeatedly in the head and face. The defendant hit the victim "well over ten times." Each punch made a "wet, slapping sound." The victim soon became motionless. After a few minutes, the defendant stood up and walked away.

The defendant walked away from the scene along Chapel Street, where New Haven Police Officer John Moore stopped him because he matched the description of someone involved in an assault on the Green. Although the defendant was not hostile toward Moore, he was visibly irate. The defendant had blood on his hands and forearms. When asked if he had been in a fight, the defendant told Moore, "I fucked that guy up." The defendant claimed that he had cut his hand, had been hit in the head, and may have broken a knuckle. The officer requested an ambulance. Once the ambulance arrived, an emergency medical technician (EMT) cleaned the victim's blood off the defendant's hands and checked him for injuries.⁴

The defendant then told Moore his version of what happened:⁵ He was waiting at the bus stop on Temple Street, near the Green, when the victim attacked him with what the defendant thought was a blackjack but later claimed was a rock inside of a sock. The two men began to fight and shortly thereafter the victim slipped, allowing the defendant to get the upper hand. The defendant then got on top of the victim and punched him "over fifty times." When informed that the victim was in serious condition, the defendant said, "good, I hope that motherfucker dies." The defendant then was taken to the police station for questioning.

Earlier, during the confrontation, two passersby observed the defendant repeatedly punching the victim while he lay on the ground, and the passersby stopped to call the police.⁶ By the time they called 911, the defendant had begun to walk away. The passersby observed that the victim's breathing was labored, he was not moving, he had blood on his face, and his "skull was crushed in."

New Haven Police Officer Daophet Sangxayarath was the first to arrive at the scene. He saw the victim, later identified as Robert Haynes, aged sixty-two, lying face down on the ground, bleeding from the head. Shortly thereafter, New Haven Police Officers Evan Kelly and Nicole Motzer arrived at the scene. Kelly, who previously was an EMT, tended to the victim. The victim was semiconscious and unable to follow any commands. He had bruising along the right side of his head from his forehead down to his cheekbone, his right eye was swollen shut, and there were abrasions on his face. Concerned about the victim's breathing, Kelly turned him onto his back. In doing so, he discovered "a sock with some kind of blunt object inside" (the sock with a rock inside it) beneath the victim and handed the item to Sangxayarath.⁷ An ambulance arrived soon after and transported the victim to Yale-New Haven Hospital. The victim was treated for, inter alia, a life-threatening skull fracture likely caused by blunt force trauma.

The victim remained hospitalized for three months, after which he was transferred to a rehabilitation facility where he remained for at least twenty-two months. The victim was unable to communicate verbally until about three months after the incident. Since the altercation, he has been unable to walk, has lost sight in his right eye, has had difficulty using his hands, and has an indentation in his head.

The defendant ultimately was charged, by way of a two count information, with assault of an elderly person in the first degree in violation of General Statutes § 53a-59a (a) (1)⁸ and assault of an elderly person in the second degree in violation of § 53a-60b (a) (1) (2017 assault charges). At the time of the assault, the defendant was serving a probationary sentence imposed as a result of a 2012 conviction. In April, 2012, the defendant had pleaded guilty to robbery in the second degree in violation of General Statutes (Rev. to 2011) § 53a-135 and larceny in the sixth degree in violation of General Statutes § 53a-125b,⁹ and was sentenced to eight years of incarceration, execution suspended after thirty-six months, and three years of probation (2012 sentence). Thus, as a consequence of his arrest on the 2017 assault charges, the defendant was charged in a separate docket with violation of probation.

During the pretrial proceedings, on July 30, 2018, the defendant filed a motion to correct an illegal sentence (first motion to correct), arguing that his 2012 sentence was illegal, and requesting "an order reopening the judgment of conviction and vacating his plea to the charges therein, and scheduling the case for trial." The court, Clifford, J. , denied the motion. The defendant appealed the ruling but withdrew the appeal before any briefs were filed.

On May 31, 2019, evidence was presented at a hearing on the probation violation charge. At the conclusion of the hearing, the court stated that it would "wait to hear on the jury on the underlying information" before issuing a decision on the probation violation. A jury trial on the assault charges was held over the course of four days in May and June, 2019. On June 4, 2019, the jury found the defendant not guilty of assault of an elderly person in the first degree in violation of § 53a-59 (a) (3) and guilty of assault of an elderly person in the second degree in violation of § 53a-60b (a) (1). On the same day, after accepting the verdict, the court determined that the defendant had violated the terms of his probation in violation of § 53a-32 "by committing an assault against [the victim] on July 13, 2017."

A sentencing hearing was held on August 28, 2019. At the start of the hearing, the court noted that the defendant had filed a second motion to correct an illegal sentence¹⁰ in July, 2019 (second motion to correct).¹¹ Although the defendant filed the motion while acting in a self-represented capacity, he was represented by counsel at the hearing.¹² The court, B. Fischer, J. , did not consider the second motion to correct, regarding the 2012 sentence, noting "[i]t's not in front of this [c]ourt. So ... I'm not taking any action on it." The defendant was then sentenced to five years of incarceration for the assault and five years of incarceration for the violation of probation, to run consecutively. This appeal followed.

I

The defendant's first claim on appeal is that the court abused its discretion in denying his first motion to correct an illegal sentence. For the following reasons, we decline to reach the merits of this argument.

The following procedural history is relevant to our resolution of this claim. On July 30, 2018, the defendant filed his first motion to correct an illegal sentence and requested that the court open the 2012 judgment of conviction, vacate his pleas, and schedule the case for trial.¹³ On October 9, 2018, Judge Clifford heard oral argument on the first motion to correct. At the hearing, the defendant argued that the 2012 sentence was illegal because the plea agreement on which his guilty plea was based had been violated.¹⁴ After lengthy discussion, Judge Clifford, in an oral ruling, determined that the plea agreement was not violated and, therefore, denied the defendant's first motion to correct.¹⁵ On March 13, 2019, the defendant appealed to this court from Judge Clifford's denial of the motion to correct. On August 13, 2019, however, before any briefs were filed, the defendant withdrew the appeal.

After trial on the 2017 assault charges and prior to sentencing, on August 2, 2019, the defendant, acting in a self-represented capacity, filed his second motion to correct, arguing that the 2012 sentence was "ambiguous and contradictory." On August 28, 2019, prior to sentencing, Judge Fischer, who had presided over the trial, addressed the defendant's motion. Following arguments from each side, wherein the defendant was again represented by counsel, Judge Fischer stated: "I'm not going to take any action on the motion to correct [an] illegal sentence. He has remedies on that. It's not in front of this court.... I'm not taking any action on it."

On appeal, the defendant claims that the court erred in denying his first motion to correct an illegal sentence because his 2012 sentence was both ambiguous and contradictory. He contends that the case should be remanded for the trial court to correct the illegal sentence and vacate his sentence for...