State v. Holley

144 Conn.App. 558

72 A.3d 1279

STATE of Connecticut

v.Alexander HOLLEY, Jr.^*

No. 34085.

Appellate Court of Connecticut.

Argued April 9, 2013.

Decided July 30, 2013.

Shannon Daley, certified legal intern, with whom were Timothy H. Everett, assigned counsel, Christina Lindberg and Leah McGuckin, certified legal interns, and, on the brief, Sabrina Copp, Sara McCollum and Andrew Veale, certified legal interns, for the appellant (defendant).

Jennifer Miller, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Roger Dobris, senior assistant state's attorney, for the appellee (state).

BEACH, ROBINSON and SCHALLER, Js.

SCHALLER, J.

The defendant, Alexander Holley, Jr., appeals from the judgment of conviction, rendered following a jury trial, of one count of risk of injury to a child in violation of General Statutes § 53–21. On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction of risk of injury to a child and (2) the prosecutor committed certain improprieties during closing argument that deprived him of a fair trial. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On the afternoon of August 21, 2010, K, the complainant, received a telephone call from her male friend. He informed K of a paid opportunity to braid the hair of the defendant's girlfriend in New Haven. K, along with her young child, Z, went to New Haven and met with her friend, the defendant, and the defendant's girlfriend. They traveled together to the defendant's apartment. When they arrived, K, Z, and the defendant's girlfriend entered the bedroom where Z sat on the bed watching television as K braided the girlfriend's hair in a nearby chair. Z eventually fell asleep at the foot of the bed. Sometime after Z had fallen asleep, the defendant entered the bedroom and began enticing his girlfriend to perform oral sex on him. K then left the bedroom in order to speak to her male friend in the kitchen. When the defendant followed K into the kitchen, she informed him that she intended to leave. The defendant began “clinking” what K thought was a gun, at which point K agreed to finish braiding the girlfriend's hair.

At this point, K's friend left the apartment under the pretext of going to a store. K returned to the bedroom and continued braiding the girlfriend's hair while Z still slept on the bed. The defendant then entered the bedroom, locked the door behind him, and smoked crack cocaine with his girlfriend, leaving the crack cocaine and paraphernalia on the bedroom floor when they were finished.

Meanwhile, K's friend flagged down New Haven police Officer Paul Bicki, telling Bicki that his female friend, K, along with her young child, Z, were in danger and needed police assistance at the defendant's apartment. Bicki went to the defendant's apartment, announced his presence, and requested that someone come to the door. He received no response. Bicki observed that a light was on in the bedroom where K and Z purportedly were in danger and contacted his supervisor for further instructions. With the assistance of other officers who had arrived on scene, Bicki gained entry to the apartment through a living room window.¹

Upon entering the apartment, Bicki immediately opened the front door and let the other officers in. The officers approached the bedroom door and knocked, but received no response. The officers attempted to open the door, but discovered that the defendant was holding it shut. After opening the door, Bicki and fellow Officer Kealyn Nivakoff observed the defendant standing at the door, K and the defendant's girlfriend lying naked on the bed, and Z lying at the foot of the same bed. The defendant refused to comply with the officers' verbal commands to lie on the floor. When the officers attempted to restrain the defendant, a physical altercation ensued in a “very small space” between the bed and a wall. Bicki perceived the physical altercation as a “violent struggle....” The defendant flailed, punched, and kicked at the five officers who were attempting to restrain him. The bed, which Z was lying on throughout the altercation, was knocked back and forth significantly, “enough that if somebody who was sleeping [on the bed] would absolutely be woken up.” The police eventually restrained and arrested the defendant.

The state, in a long form information filed on August 16, 2011, charged the defendant with two counts of kidnapping in the first degree with a firearm in violation of General Statutes § 53a–92a, one count of aggravated sexual assault in the first degree in violation of General Statutes § 53a–70a (a), and one count of risk of injury to a child in violation of § 53–21. The jury found the defendant guilty of risk of injury to a child and not guilty on each of the remaining charges. The court sentenced the defendant to a total effective term of fifteen months of imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence presented at trial was insufficient to support his conviction of risk of injury to a child in violation of § 53–21. Specifically, the defendant contends that the state failed to establish that his conduct, up to and during his physical altercation with the police, created a situation endangering the life or limb of Z. We are not persuaded.

As a preliminary matter, we identify the applicable standard of review. “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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... [P]roof 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 trier, 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 jury's verdict of guilty.” (Internal quotation marks omitted.) State v. Gene C., 140 Conn.App. 241, 245–46, 57 A.3d 885, cert. denied, 308 Conn. 928, 64 A.3d 120 (2013).

In the present case, the defendant was charged under the situation prong of § 53–21(a)(1). Section 53–21(a) provides in relevant part that “[a]ny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered ... shall be guilty of a class C felony....” “Conduct is wilful when done purposefully and with knowledge of [its] likely consequences.... Moreover, [s]pecific intent is not a necessary requirement of the statute. Rather, the intent to do some act coupled with a reckless disregard of the consequences ... of that act is sufficient to [establish] a violation of the statute.” (Citations omitted; internal quotation marks omitted.) State v. Maurice M., 303 Conn. 18, 28, 31 A.3d 1063 (2011).

The defendant does not dispute his involvement in a physical altercation with police officers in close proximity to the child. His sufficiency claim is limited to the magnitude of the risk implicated by his conduct.²Accordingly, the question that we must address is “whether there was sufficient evidence that the defendant's conduct was of such a character that it demonstrated a reckless disregard of the consequences.” ³ (Internal quotation marks omitted.) Id., at 30, 31 A.3d 1063.

The jury heard testimony that the defendant, aware of Z's presence in the bedroom, held the bedroom door shut upon learning of the officers' presence. From this, the jury reasonably could have inferred that the defendant intentionally barricaded the door to prevent the police from entering the bedroom. The jury also heard testimony that the defendant refused to comply with verbal commands to lie on the floor and engaged five officers in a “violent struggle” in close proximity to Z. The jury heard specific testimony that the defendant flailed, “[tried to throw] punches ... and [kicked]” at the five officers, and that this altercation knocked into the bed where Z was lying, causing it to move back and forth significantly. In light of this evidence, and on the basis of its common knowledge and experience, the jury reasonably could have inferred that engaging five police officers in a physical altercation in close proximity to a child would create a situation likely to endanger that child's life or limb. State v. Padua, 273 Conn. 138, 157, 869 A.2d 192 (2005) (jurors expected to apply common knowledge and experience to evidence). Construing the evidence in the light most favorable to sustaining the jury's verdict, we conclude that the evidence was sufficient to support the defendant's conviction.⁴

II

The defendant next claims that the prosecutor committed certain improprieties that deprived him of a fair trial. Specifically, the defendant contends that the prosecutor made several improper remarks during the rebuttal stage of closing arguments and that those improprieties deprived him of his due process right to a fair trial and violated his fifth amendment right to remain silent. ⁵ We conclude that none of these remarks were improper.⁶

The following additional facts are necessary to resolve this claim. The defendant did not testify at trial. During closing arguments, defense counsel began his summation with the following statement: “This prosecutor did his job but gave you a mess. It's a jungle of liars and felons and...