State v. Holley

327 Conn. 576

175 A.3d 514

STATE of Connecticut

v.Kenny HOLLEY

SC 19598

Supreme Court of Connecticut.

Argued March 27, 2017

Officially released January 12, 2018^**

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey, senior assistant state's attorney, for the appellant (state).

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

Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and D'Auria, Js.^*

ROBINSON, J.

Opinion

A jury found that, in the afternoon of June 30, 2009, the defendant, Kenny Holley, and his accomplice, Donele Taylor, invaded the East Hartford apartment of the victim, William Castillo, intending to commit a robbery. After the victim was shot fatally in the ensuing struggle, the defendant and Taylor fled by bus, taking cash and sneakers with them. The state now appeals, upon our grant of its petition for certification,¹ from the judgment of the Appellate Court reversing the judgment of the trial court, rendered in accordance with the jury's verdict, convicting the defendant of, inter alia, felony murder in violation of General Statutes § 53a–54c, home invasion in violation of General Statutes § 53a–100aa (a) (1), and robbery in the first degree in violation of General Statutes § 53a–134 (a) (2).² State v. Holley , 160 Conn. App. 578, 127 A.3d 221 (2015). On appeal, the state claims that the Appellate Court improperly concluded that the trial court had (1) violated the defendant's right to present a defense under the sixth amendment to the United States constitution by conditioning its ruling that certain out-of-court statements indicating that the victim had bitten Taylor were inadmissible under Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), on the defendant not presenting evidence regarding the circumstances relating to that wound, (2) abused its discretion by admitting testimony from a police detective indicating that he had observed what appeared to be a bite mark on Taylor's hand, and (3) abused its discretion by admitting testimony from a police detective narrating a surveillance video recorded on a bus and opining that the contours of an object in the defendant's backpack appeared to be a shoe box.

In addition to responding to the state's claims, the defendant asks us to consider, pursuant to Practice Book § 84–11 (a), numerous alternative grounds on which to affirm the judgment of the Appellate Court. In particular, the defendant contends that the trial court improperly (1) admitted into evidence, over his relevance objection, testimony by Kemorine Parker about a conversation she overheard between the defendant and Taylor while they were passengers on the bus shortly after the commission of the home invasion, (2) admitted into evidence, over his hearsay objection, certain testimony by Dennis Minott, the driver of the bus, indicating that Taylor had asked him for a tissue upon boarding, (3) determined that defense counsel had asked a question of a police detective that invited an answer otherwise barred by Crawford v. Washington , supra, 541 U.S. at 68, 124 S.Ct. 1354, and (4) denied the defendant's motion for a mistrial. Insofar as we agree with the state's claims and disagree with the defendant's proffered alternative grounds for affirmance, we reverse the judgment of the Appellate Court.

The Appellate Court's opinion aptly sets forth the following facts and procedural history. On the basis of the evidence adduced at trial, the "jury reasonably could have found that, at the time of the events at issue, the victim ... lived in an apartment in East Hartford with his girlfriend, Tami Schultz. The victim earned money from selling sneakers both from his automobile and from his residence. At approximately 3:15 p.m. on June 30, 2009, while Schultz was out shopping, the defendant and ... Taylor entered the victim's residence. A violent struggle involving the victim ensued, during which both Taylor and the victim sustained physical injuries.

Notably, the victim bit Taylor on his right wrist. Before the defendant and Taylor left the victim's residence, which they [had] ransacked in search of valuables, the victim sustained multiple gunshot wounds.

"When the defendant and Taylor fled the victim's residence, the defendant was in possession of property belonging to the victim, specifically, cash and a shoe box. At 3:24 p.m., the victim attempted to dial 911 on his cell phone but he was unable to do so and dialed '922' instead. He perished on his kitchen floor from a gunshot wound in the area of his left chest. A neighbor of the victim, alerted to the sound of uncharacteristically loud music, fighting, gunshots, and pleas for help originating from the victim's residence, called 911 at 3:25 p.m. By 3:30 p.m., the police arrived at the scene, where they discovered the lifeless victim.

"Immediately upon leaving the victim's residence, the defendant and Taylor proceeded to a nearby bus stop that was one-tenth of a mile from the crime scene, from which, at 3:22 p.m., they boarded a bus that transported them to downtown Hartford. At this time, the defendant was carrying a backpack that contained the cash and a shoe box. [Upon boarding, Taylor asked Minott for a tissue.] A fellow passenger, [Parker, then overheard] Taylor comment to the defendant that Taylor had been bitten by a dog, and the defendant was overheard remarking that '[i]t was a big dog.' Images of the defendant and Taylor running toward the bus stop were captured by a video surveillance camera located at a nearby convenience store, and images of the defendant and Taylor while they were on the bus were captured by a video surveillance camera located on the bus. In the video from the bus, the defendant appears to remove cash from his backpack and appears to hand something to Taylor from his backpack.

"By disseminating to the public some of the still images of the defendant and Taylor from the surveillance footage captured on the bus, the police gained information about their identities. When the police interviewed Taylor on July 16, 2009, police observed injuries on or about his hands. Following an unrelated shooting incident in Hartford, the police came to possess a .22 caliber Beretta and determined that it previously had been owned by Taylor. Forensic analysis of the gun and of shell casings found at the crime scene involving the victim linked the gun, and thus Taylor, to the crimes. Moreover, forensic analysis of DNA samples from Taylor and of DNA obtained from the brim of a baseball cap that was found at the crime scene linked Taylor to the crimes." State v. Holley , supra, 160 Conn. App. at 582–84, 127 A.3d 221.

The state subsequently charged the defendant with, inter alia, felony murder, home invasion, conspiracy to commit home invasion, burglary in the first degree, and robbery in the first degree. Id., at 582, 127 A.3d 221. The case was tried to a jury, which returned a verdict of guilty on all counts. Id. The court rendered a judgment of conviction in accordance with the jury's verdict, and imposed a total effective sentence of 105 years incarceration, with a mandatory minimum sentence of twenty-five years incarceration.³ Id., at 582, 127 A.3d 221 and n.1.

The defendant appealed from the judgment of conviction to the Appellate Court, raising numerous claims, including an unpreserved claim that his constitutional right to present a defense had been infringed by the trial court's conditional evidentiary ruling with respect to Taylor's statement to the police about the injuries to his hand.⁴ The Appellate Court agreed that the trial court had violated his right to present a defense because, "after the court properly excluded evidence concerning Taylor's statements to the police [pursuant to Crawford v. Washington , supra, 541 U.S. at 68, 124 S.Ct. 1354 ], it improperly restricted his right to challenge the evidence related to Taylor's wounds that it had permitted the state to introduce at trial." State v. Holley , supra, 160 Conn. App. at 607, 127 A.3d 221 ; see id., at 611–12, 127 A.3d 221. Although it determined that this impropriety required a new trial, the court also considered certain claims as presenting issues likely to arise on remand. Specifically, the Appellate Court determined that the trial court had abused its discretion by admitting lay opinion testimony by two police detectives, one stating that Taylor's wound was a bite, and the other describing an object in the defendant's backpack, based on the officer's observations of the video from the bus, as a shoe box. Id., at 621–22, 631–32, 127 A.3d 221. The Appellate Court rejected the defendant's claims, however, that the trial court improperly (1) concluded that Parker's testimony about the conversation on the bus between the defendant and Taylor about a dog bite was relevant evidence, and (2) permitted Minott to testify that one of the two men who had boarded the bus had asked him for a tissue. Id., at 625–26, 630–31, 127 A.3d 221. This certified appeal followed. Additional relevant facts and procedural history will be set forth in detail as necessary.

I

We begin with the state's claim that the Appellate Court improperly concluded that the trial court had violated the defendant's sixth amendment right to present a defense by, in essence, precluding him from presenting evidence regarding the nature, source, and timing of Taylor's injuries. The record and the Appellate Court's opinion reveal the following additional facts and procedural history relevant to this claim. The defendant filed a motion in limine seeking to preclude the state from introducing certain statements that were made by Taylor to the police on the ground that they were inadmissible under Crawford ,⁵ as testimonial hearsay from an unavailable witness.⁶

State v. Holley , supra, 160 Conn. App. at 602–603, 127 A.3d 221. "In his memorandum of law in support of his motion in limine, ...