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State v. Holmes

Court of Appeals of Connecticut

October 18, 2016


          Argued May 10, 2016

         Appeal from Superior Court, judicial district of New London, geographical area number twenty-one, Jongbloed, J.)

          Cameron R. Dorman, assigned counsel, for the appellate (defendant).

          Stephen M. Carney, senior assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state).

          Lavine, Keller and West, Js.


          WEST, J.

         The defendant, Daquan Holmes, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a[1] and criminal attempt to commit murder in violation of General Statutes §§ 53a-49[2] and 53a-54a. On appeal, the defendant claims that (1) the trial court abused its discretion in denying his motion for a new trial, (2) the prosecutor engaged in prosecutorial impropriety, and (3) even if his due process rights were not violated, this court should exercise its supervisory powers and set aside his conviction due to deliberate prosecutorial impropriety. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. In the early morning hours of May 21, 2011, Maria Fluker was outside of Chacer's bar (bar), located on Franklin Street in Norwich, with her boyfriend, the defendant. A man asked Fluker for a cigarette, which angered the defendant. An argument began involving twenty to thirty people, including the defendant. During the argument, the defendant yelled, ‘‘get my gun.''

         The owner of the bar, Geoffrey Chase, who observed the altercation, heard yelling about guns and knives; he said that he had specifically heard someone say, ‘‘I'm going to get my gun.'' Chase called 911 and reported that there were about twenty people outside his bar yelling about guns and knives. Meanwhile, Roberta Karr, a friend of the defendant, was in her apartment across the street from the bar when she heard the disturbance. In response, she went outside to pull the defendant away from the crowd and into her apartment. The defendant, however, ran back toward the crowd, where he encountered William Long, who had been inside the bar. Karr got into a vehicle driven by Fluker, and they headed toward the defendant. The defendant, his brother, Ronald Holmes, and Long got into the car.

         The group drove to Long's residence and Long went inside. When he reemerged, he had a gun. Upon getting back in the car, Long handed the gun to the defendant. The group then drove to the area of Boswell Avenue and Franklin Street, where Joseph Cadet and Johnny Amy were walking across the street. Long and the defendant got out of the car and began yelling. Cadet and Amy continued to walk and informed the two men that they had the wrong guys.

         Shots were fired in the direction of Amy and Cadet, and the defendant was seen holding the gun. Amy fell to the pavement, and Cadet ran away from the defendant and Long. When the defendant and Long returned to the car, the defendant was holding the gun. Fluker then drove to Mystic, and while in route, Karr saw Long throw the gun from the car. The group rented a room at a hotel in Mystic, where Crystal Smith, Long's girlfriend, arrived after receiving a phone call from Ronald Holmes.

         Scott Dupointe, an officer with the Norwich Police Department, was stationed in the area of the shooting and was parked on Franklin Avenue when he heard six to eight gunshots and immediately drovein the direction of the shots. Upon reaching the intersection of Boswell Avenue and Franklin Street, he found Cadet kneeling over Amy. At 2:37 a.m., Dupointe called dispatch to report that he heard gunshots and had arrived at the scene. After radioing dispatch about the situation, Dupointe drove down Boswell Avenue in search of the car Cadet described as the vehicle in which the defendant and Long had fled the scene. Unable to locate the vehicle, Dupointe returned to the scene.

         Amy was transported to the hospital, but he was later pronounced dead. Following an autopsy, the medical examiner determined the cause of death to be a gunshot wound to the head. The scene of the shooting was processed and several defects located in an adjacent building were consistent with gunfire. Several .22 caliber shell casings and a .22 caliber live round were also found in the vicinity. On the basis of a statement made by Karr, the police recovered a Ruger .22 caliber, semiautomatic pistol that was consistent with having fired the bullets recovered at the crime scene. Upon searching Long's residence, police also located a .22 caliber hollow point round that was the same type located at the scene of the shooting. The bullet was consistent with the ammunition typically associated with the recovered pistol. In addition, the police seized a surveillance video from a nearby Laundromat that showed Cadet and Amy walking together, Amy falling to the ground, and Cadet running away and then returning to assist Amy.

         A warrant was issued nationwide for the defendant's arrest, and he was arrested in New York on October 19, 2011. He was brought back to Connecticut and charged with murder in violation of § 53a-54a and criminal attempt to commit murder in violation of §§ 53a-49 and 53a-54a. Following a jury trial, the defendant was convicted of both counts. The court subsequently denied the defendant's motion for a new trial and sentenced the defendant to fifty-four years of incarceration. This appeal followed. Additional relevant facts will be set forth as necessary.


         The defendant first claims that the court abused its discretion in denying his motion for a new trial. In his motion for a new trial, the defendant argued that ‘‘[t]here was insufficient evidence to support the jury's finding inasmuch as the defendant demonstrated through scientific evidence and various times of day within the state's evidence that the allegations offered by the state could not have happened.'' On appeal, the defendant argues that the verdict was based on physically impossible conclusions that he and his cohorts could have left the bar, driven to Long's residence, and then driven to the scene of the shooting in the allotted time.[3] The defendant alternatively acknowledges, however, that he could have been at the scene of the shooting, but only if Karr and Fluker lied about the events that occurred from the time that Long left the bar to the time of the shooting, and he further argues that the facts demonstrate that the testimony of both Karr and Fluker was intentionally untrue, which rendered their testimony unreliable and untrustworthy.

         We begin our analysis by setting forth our standard of review and the relevant law. ‘‘[T]he proper appellate standard of review when considering the action of a trial court granting or denying a . . . motion for a new trial . . . [is] the abuse of discretion standard. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. . . . A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.'' Bolmer v. McKulsky, 74 Conn.App. 499, 510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003).

         When evaluating a physical impossibility claim, ‘‘[a] verdict should be set aside [w]here testimony is . . . in conflict with indisputable physical facts, the facts demonstrate that testimony is either intentionally or unintentionally untrue, and leave no real question of conflict of evidence for the jury concerning which reasonable minds could reasonably differ. . . . Scientific evidence is relevant to a determination of what is physically impossible.'' (Citation omitted; internal quotation marks omitted.) State v. Vazquez, 119 Conn.App. 249, 254, 987 A.2d 1063 (2010).

         The defendant set forth the following timeline. Chase called 911 at 2:25 a.m. to report the argument occurring outside of the bar. The bar's surveillance video shows Chase making this call at 2:25 a.m. The surveillance video also shows Long exiting the bar at 2:28 a.m. to join the defendant outside. The surveillance video from the Laundromat first shows Cadet and Amy walking away, and then Amy falling to the ground and Cadet running away at approximately 3:32 a.m. At 2:37 a.m. Dupointe called dispatch to report that he heard gunfire.

         The defendant contends that the time stamp on the Laundromat surveillance video was exactly one hour off, and asserts that the time on the video should have been 2:32 a.m. The defendant argues that based upon the evidence, ‘‘the time elapsed between Long leaving the bar and the earliest time the defendant could have arrived at the scene of the shooting was just under five and a half minutes.'' The defendant claims that the evidence shows that it would have taken the defendant between nine and thirteen minutes to get to the scene of the shooting, and therefore, he could not have been at the scene when the victim was shot. The state contends that the defendant offered no evidence to support his claim that the Laundromat video was exactly one hour off, and further asserts that the Laundromat video was less than an hour off. The state ...

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