May 10, 2016
from Superior Court, judicial district of New London,
geographical area number twenty-one, Jongbloed, J.)
Cameron R. Dorman, assigned counsel, for the appellate
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.
defendant, Daquan Holmes, appeals from the judgment of
conviction, rendered after a jury trial, of murder in
violation of General Statutes § 53a-54a and criminal
attempt to commit murder in violation of General Statutes
§§ 53a-49 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.
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.''
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.
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.
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.
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.
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.
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.
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. 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.
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).
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).
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.
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 ...