State v. Daye

159 Conn.App. 831

123 A.3d 894

STATE of Connecticut

v.Kelvin DAYE.

No. 37160.

Appellate Court of Connecticut.

Argued May 11, 2015.

Decided Sept. 15, 2015.

Daniel J. Krisch, assigned counsel, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).

DIPENTIMA, C.J., and KELLER and MULLINS, Js.

Opinion

KELLER, J.

The defendant, Kelvin Daye, appeals from the judgment of conviction, following a jury trial, rendered by the trial court on one count of capital felony in violation of General Statutes (Rev. to 2003) § 53a–54b(5). He claims that prosecutorial improprieties occurred during the state's initial closing and rebuttal arguments that deprived him of his right to a fair trial. We affirm the judgment of the court.

The following facts, which the jury reasonably could have found, and procedural history are relevant here. In July, 2004, the victim and her husband lived in an apartment complex located in East Hartford. At that time, both of them worked for the same company in East Windsor. The victim and her husband both were working during the early morning hours of July 9, 2004. At approximately 1:30 a.m., the victim completed her work shift and left her place of employment after informing her husband, who was in the middle of his work shift, that she was going home and that she did not have to attend classes for school later that morning.

At some point in time after returning to the apartment complex on July 9, 2004, the victim came across the defendant and a violent encounter ensued between them. During the encounter, the defendant broke a window on a locked door leading to the basement of the apartment complex, reached through the hole in the window, opened the door from the inside, and forced the victim into the basement. He shot the victim three times in her head, wrapped a garbage bag around her head, tied a rope and duct tape around the bag, and left her naked from the waist down in the furnace room of the basement.

The victim's husband ended his work shift at approximately 6 a.m. on July 9, 2004, and arrived at the apartment complex at approximately 6:30 a.m. that morning.

The victim was not in their apartment, although her car was parked in the apartment complex's parking lot. The victim's husband checked the apartment complex's gymnasium, but he found that it was closed. He proceeded to call one of the victim's friends from school, one of his friends who lived in the same apartment complex, and the victim's brother, but none of them had heard from the victim. He then called the police and filed a missing person's report.

Later that evening, a number of friends of the victim's husband visited him at his apartment to offer him company and support. They decided to look around the apartment complex for any clues as to the victim's whereabouts. At approximately 2 a.m. on July 10, 2004, while searching the apartment complex, one of the friends of the victim's husband noticed that the window on the basement door was broken. The victim's husband called the police to report the broken window.

Following the victim's husband's call, Adam Aborn, a patrol officer for the East Hartford Police Department, was dispatched to the apartment complex. The victim's husband led him to the basement door with the broken window. Aborn noticed what appeared to be a small amount of blood located on the floor beyond the door. The door was locked, so Aborn called a property management employee to unlock the door. After the door was unlocked and opened, Aborn observed a large pool of dried blood at the base of the door. Within the pool of blood was a pair of eyeglasses that the victim's husband identified as belonging to the victim. Aborn directed the victim's husband to remain outside of the doorway while he, along with another police officer who had arrived at the scene, ventured into the basement.

Past the basement door was a dimly lit hallway approximately 100 yards long. Aborn observed a long, continuous blood trail leading down the hallway, as well as blood stains on the walls. About halfway down the hallway was another door, which had blood smeared on it. Aborn went through the doorway and observed that the blood trail continued, uninterrupted, to another door ahead of him that led into the furnace room.¹ He then entered the furnace room and discovered the victim's body.

Subsequently, additional police officers arrived to secure and process the crime scene. The investigating officers discovered the following relevant pieces of evidence: (1) blood on the broken window; (2) blood on a lightbulb in the hallway leading to the furnace room; (3) an unwrapped condom; (4) one unfired .22 caliber bullet and two fired .22 caliber shell casings; and (5) one pair of women's pants and one pair of women's underwear.² Scientists at the state forensic laboratory determined that various blood samples retrieved from the crime scene contained a DNA profile that did not belong to the victim. Consequently, the unidentified DNA profile was entered into a national database to search for potential matches.

Several years later, on July 1, 2010, the state forensic laboratory notified the East Hartford Police Department that the unidentified DNA profile collected from the crime scene matched the DNA profile of the defendant, which had been entered into the database on June 19, 2009. On September 15, 2010, Ellen Stoldt, a detective with the East Hartford Police Department, executed a search warrant on the defendant, who was being detained at the Immigration and Customs Enforcement office in Hartford, and obtained samples of his saliva, fingerprints, and palm prints. Stoldt then read to the defendant his Miranda rights,³ which he waived. She proceeded to inform him that his blood had been found at a crime scene in East Hartford and that a woman, whom she did not identify, had been the victim of a crime, although she did not specify that the woman had been killed. The defendant stated that he did not commit any crimes in East Hartford, and asked Stoldt why anyone would have wanted to kill the woman. When asked how he knew that a homicide had occurred, he began to sweat and rock back and forth in the chair in which he was sitting.

Subsequently, the state forensic laboratory confirmed that several blood samples found at the crime scene belonged to the defendant. Further analysis also determined that the defendant's DNA was present on the inside and outside of the condom found at the crime scene, and that the defendant, or a member of the same paternal lineage, could not be eliminated as the source of DNA found on the inside and outside of the women's pants and underwear found at the crime scene.

The defendant was arrested and charged with six counts: in count one he was charged with murder in violation of General Statutes § 53a–54a ; in count two he was charged with sexual assault in the first degree in violation of General Statutes § 53a–70(a)(1) ; in count three he was charged with kidnapping in the first degree in violation of General Statutes § 53a–92(a)(2)(A) ; in count four he was charged with capital felony in violation of General Statutes (Rev. to 2003) § 53a–54b (6);⁴ in count five he was charged with capital felony in violation of General Statutes (Rev. to 2003) § 53a–54b (5);⁵ and in count six he was charged with felony murder in violation of General Statutes § 53a–54c.

The case was tried to a jury. The defendant did not testify. During the trial, the state introduced evidence connecting the defendant, through DNA analysis, to the condom, the victim's pants and underwear, and various blood samples located at the crime scene. Furthermore, the state elicited testimony from Carmen Bournes, a woman with whom the defendant had been involved romantically from May, 2002, to 2005 or 2006, and with whom he had fathered a child. Bournes testified as to the following. One night, the defendant and Bournes were watching television. The defendant seemed upset and told her that he had an incident with a woman that had gone “bad.” He stated to her that he had broken a window to get into a basement, and that the woman had “put up a fight.” He also mentioned that a woman had been killed, and he pointed at the television screen and stated to Bournes, “I told you, see, I told you” when news coverage of the victim's death was being broadcasted. He also told Bournes that an Indian woman had been haunting him. Subsequently, at some point in 2004 or 2005, the defendant showed Bournes a pocketbook that was wet. Inside the pocketbook were documents, including one that appeared to be a passport. The defendant told Bournes that the pocketbook “was hers,” which Bournes believed was in reference to the woman who had been killed.⁶

The jury found the defendant guilty on counts one, three, five, and six, but not guilty on counts two or four. The court, Vitale, J., sentenced the defendant to life in prison without the possibility of release on count five and, pursuant to State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), vacated the other three convictions.⁷ This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the prosecutor made improper comments during the state's initial closing and rebuttal arguments and, as a result, he was deprived of his right to a fair trial. Specifically, the defendant asserts that, during the state's initial closing argument, the prosecutor improperly appealed to the jurors' emotions, provided the jurors with his personal opinion of the evidence, and made an improper “golden rule” argument. Furthermore, he contends that, during the state's rebuttal argument, the prosecutor improperly denigrated his defense and defense counsel's integrity. We disagree and conclude that all of the comments challenged by the defendant were proper.

We begin by setting forth the relevant...