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State v. Daye

Appellate Court of Connecticut

September 15, 2015


Argued May 11, 2015

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Substitute information charging the defendant with two counts of the crime of capital felony, and with the crimes of murder, sexual assault in the first degree, kidnapping in the first degree and felony murder, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Vitale, J.; verdict of guilty of one count of capital felony, and murder, kidnapping in the first degree and felony murder; thereafter, the court vacated the findings of guilt as to the charges of murder, felony murder and kidnapping in the first degree; judgment of guilty of one count of capital felony, from which the defendant appealed.


Convicted of the crime of capital felony in connection with the death of a woman in the basement of an apartment complex, the defendant appealed, claiming that he was deprived of his right to a fair trial as a result of certain prosecutorial impropriety during the state's closing and rebuttal arguments to the jury. The defendant claimed, inter alia, that the prosecutor improperly appealed to the jurors' emotions, gave his personal opinion of the evidence and made an improper golden rule argument. Held :

1. The prosecutor's comments during his initial closing argument were proper and did not deprive the defendant of his right to a fair trial:

a. The prosecutor did not improperly appeal to the jurors' emotions in stating, inter alia, that the victim had been found naked from the waist down, and that the defendant had been lying in wait to ambush her in the darkness, as those comments were based on the evidence before the jury, were not unduly provocative and described the manner in which the prosecutor believed that the defendant committed the crime on the basis of reasonable inferences drawn from the evidence.

b. The prosecutor's statement that you literally look at the crime scene and say, " oh my God," was not his personal opinion of the case, but a fair way of commenting on the reasonable inference that could be drawn from evidence that the crime scene was shocking.

c. The prosecutor did not make an improper golden rule argument by urging the jurors to put themselves in the position of one of the police officers who investigated the crime scene and discovered the victim's body, as the use of the perspective of a police officer was a rhetorical tool to aid the jurors in dispassionately and carefully visualizing the crime scene; furthermore, the prosecutor's comments were not aimed to induce the jurors to experience feelings of sympathy toward the officers, whose behavior did not relate to any element of the crimes charged or any interaction they had with the defendant.

2. The defendant could not prevail on his claim that certain of the prosecutor's comments in rebuttal argument denigrated the defense and defense counsel's integrity, and were excessively sarcastic: the prosecutor did not make a deceptive or misleading argument that had no basis in the evidence when stating that if the jurors believed defense counsel's argument, they would have to " get on that bus and ride the trip that [defense counsel] asks you to take," as it was reasonable to interpret the prosecutor's comment as an exasperated statement indicating that defense counsel's argument was inconsistent with the evidence; furthermore, absent a clear indication that the comment accused defense counsel of misleading and deceiving the jurors, the prosecutor's comments constituted permissible rhetorical flourish that did not attack defense counsel personally and were not excessively or derisively sarcastic.

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.


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[159 Conn.App. 833] 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. [159 Conn.App. 834] 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

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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 [159 Conn.App. 835] 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 ...

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