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State v. Holmes

Court of Appeals of Connecticut

September 5, 2017


          Argued March 13, 2017

          Jay Alan Black, assigned counsel, for the appellant (defendant).

          Paul J. Narducci, senior assistant state's attorney, with whom were Sarah Bowman, assistant state' sattorney, and, on the brief, Michael L. Regan, state's attorney, for the appellee (state).

          Lavine, Prescott and Beach, Js.


         Convicted of the crimes of felony murder, home invasion, conspiracy to commit home invasion and criminal possession of a pistol or revolver, the defendant appealed. The defendant's conviction stemmed from an incident in which he and S allegedly forced their way into the apartment of the victim and fired ten gunshots from an automatic pistol at the victim, who died from his injuries. The defendant claimed, inter alia, that the trial court improperly overruled his objection, pursuant to Batson v. Kentucky (476 U.S. 79), to the state's use of a peremptory challenge to strike W, an African-American prospective juror. The state exercised its peremptory challenge to exclude W after he made comments suggesting that he may harbor resentment toward police and prosecutors, and that he had concerns regarding the fairness of the criminal justice system. Held:

         1. The trial court properly denied the defendant's Batson challenge and determined that the state's use of its peremptory challenge to exclude W from the jury was not tainted by purposeful racial discrimination, the state having advanced a plausible and, on its face, race neutral explanation for its having exercised a peremptory challenge, and the defendant having failed to show that the trial court's factual conclusion that the prosecutor did not act with discriminatory intent in exercising the peremptory challenge was clearly erroneous; the state's reasons for excluding W were his stated distrust of police and the criminal justice system, which clearly related to the trial of this criminal proceeding, in which the police would provide significant evidence, the state exercised its peremptory challenge only after engaging in a detailed discussion with W about the views he had expressed in response to defense counsel's questions, the state asked a relatively uniform set of questions of all jurors, there was no evidence of any venireperson of a race different from that of W who expressed the same or similar views regarding the police and the criminal justice system but who was nevertheless permitted to serve on the jury, the state did not advance any explanation that was based on an inapplicable group trait, and it did not use a disproportionate number of peremptory challenges to exclude African-Americans from the jury, which, was comprised in part of three African-Americans; moreover, our Supreme Court previously has held that a venireperson's expressed fear of police is a race neutral ground for exercising a peremptory challenge, and this court cannot modify a decision of our Supreme Court and must follow it as binding precedent, and, furthermore, the state was not required to accept W's assurances that he believed he could follow the court's instructions and act as an impartial juror.

         2. The defendant could not prevail on his claim that the trial court improperly admitted a tape-recorded statement of a witness as a prior inconsistent statement pursuant to State v. Whelan (200 Conn. 743) because it lacked the necessary indicia of reliability; the defendant having failed to adequately brief how he was prejudiced by the court's allegedly erroneous evidentiary ruling or how it may have affected the outcome of the trial, he failed to meet his burden of showing both that the court's evidentiary ruling was improper and harmful, and, therefore, the claim was deemed abandoned and this court declined to address its merits.

         3. The defendant could not prevail on his claim, raised pursuant to Doyle v. Ohio (426 U.S. 610), that the state improperly infringed on his constitutional right to remain silent when it cross-examined him at trial about his failure to disclose to the police at the time of his arrest certain exculpatory information that he later testified to at trial: although defense counsel raised a Doyle objection at trial, it was subsequently abandoned, and the defendant could not prevail on his resurrected Doyle claim on appeal pursuant to State v. Golding (213 Conn. 233) because he failed to demonstrate that a constitutional violation existed that deprived him of a fair trial, as the record showed that the defendant voluntarily spoke to a detective after he was in custody and had been advised of his Miranda rights, that he did not invoke his right to remain silent until after he was transported to the police department, that he chose to tell the detective that neither he nor his girlfriend had anything to do with the shooting incident and that there was no gun in his vehicle, and that he nevertheless testified on cross-examination that he never told the detective certain facts to which he testified on direct examination, and, therefore, rather than impermissibly attempting to impeach the defendant with his choice to remain silent, the state's cross-examination focused on why, having chosen to speak with the detective, the defendant never provided the same exculpatory details that he later testified to at trial; accordingly, the state properly inquired about the defendant's prior inconsistent statement to the detective, and that inquiry did not violate the rule set forth in Doyle that the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process.

         Procedural History

         Substitute information charging the defendant with the crimes of murder, felony murder, home invasion, conspiracy to commit home invasion, burglary in the first degree and criminal possession of a pistol or revolver, brought to the Superior Court in the judicial district of New London, where the first five counts were tried to the jury before Jongbloed, J.; verdict of guilty of the lesser included offense of manslaughter in the first degree with a firearm, felony murder, home invasion, conspiracy to commit home invasion and burglary in the first degree; thereafter, the charge of criminal possession of a pistol or revolver was tried to the court; judgment of guilty; subsequently, the court vacated the verdict as to the lesser included offense of manslaughter in the first degree with a firearm and burglary in the first degree, and rendered judgment of guilty of felony murder, home invasion, conspiracy to commit home invasion and criminal possession of a pistol or revolver, from which the defendant appealed; thereafter, the court, Jongbloed, J., issued an articulation of its decision. Affirmed.


          PRESCOTT, J.

         The defendant, Evan Jaron Holmes, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, home invasion in violation of General Statutes § 53a-100aa (a) (2), and conspiracy to commit home invasion in violation of General Statutes §§ 53a-48 (a) and 53a-100aa. The defendant also appeals from the judgment of conviction, rendered after a trial to the court, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217.[1]On appeal, the defendant claims that the trial court improperly (1) overruled his objection to the state's use of a peremptory challenge to strike an African-American prospective juror; (2) admitted a tape-recorded statement of a witness pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986); and (3) permitted the state to cross-examine the defendant regarding his conversation with a police detective at the time of his arrest in violation of his right to remain silent. We are not persuaded by the defendant's claims on appeal and, thus, affirm the judgment of conviction.

         The jury reasonably could have found the following facts. During the early morning hours of November 12, 2011, the defendant, who recently had been released from prison, attended an after-hours party at a club in New London with friends, including Davion Smith. During the party, the defendant was involved in an altercation outside the club with other attendees of the party, including Todd Silva. During the fight, the defendant suffered a laceration on his finger, a black eye, and other scratches and abrasions on his face. Following the fight, the defendant was angry and in a highly agitated state.

         Sometime around 4 a.m. that same day, the defendant and Smith forced entry into a third floor apartment at 252 Montauk Avenue in New London, where the victim, Jorge Rosa, lived. The victim also was known by his nickname ‘‘Loc'' or ‘‘Loke.'' At that time, Silva lived in the apartment with the victim.

         Inside the apartment, the victim and his girlfriend, Gabriela Gonzales, were sleeping in his bed. The defendant and Gonzales previously had been in a romantic relationship that began in high school, but that relationship had ended when Gonzales obtained a restraining order against the defendant, who shortly thereafter went to prison.

         Gonzales awoke to find the defendant and Smith standing at the foot of her bed, each pointing a gun at the victim. The defendant asked who ‘‘Loke'' is. The defendant then fired ten shots from an automatic pistol at the victim, who died within a few minutes from numerous gunshot wounds, including several to his chest, arms, and genitalia. The defendant and Smith subsequently fled the apartment. The defendant's blood, from his lacerated finger, and DNA were subsequently found in the stairwell leading up to the victim's apartment and in various rooms inside the apartment, including the bedroom.

         Gonzales called 911, and the police arrived a few minutes later. Although Gonzales initially stated to the police in the 911 call and at the scene that she did not know the identity of the shooter, within a short period of time and while still at the scene, she stated that the defendant had shot the victim and that Smith had accompanied him. She also described the defendant's automobile, a white ‘‘Crown Vic, '' to assist the police in locating him.

         At approximately 4:45 a.m., the defendant picked up his girlfriend, Shanice Sebastian, and told her that they were going to stay in a motel. The defendant and Sebastian then checked into the Days Inn in Old Saybrook, despite the existence of numerous motels closer to their location in New London. While at the Days Inn, the defendant admitted to Sebastian that he had been looking for the kid that ‘‘jumped him, '' that he had gone to the apartment of Gonzales' boyfriend and shot somebody, and that he had been with ‘‘his boy.''

         At approximately 9:30 a.m., a patrolman employed by the Old Saybrook Police Department observed the defendant's vehicle at the Days Inn. Other police units responded and located the defendant, who then attempted to flee. He was apprehended in the parking lot with the assistance of a K-9 officer. The defendant was still bleeding from his finger at the time of his arrest. Additional facts will be set forth as necessary to discuss the specific claims of the defendant.

         The defendant subsequently was tried before a jury and elected to testify at trial. He denied shooting the victim but admitted that he had been in the victim's apartment with Smith and another individual, Zach Perkins, just prior to the time of the shooting in order to resolve amicably his dispute with Silva.[2] The defendant testified that he left the apartment after being told that Silva was not there. Defense counsel argued to the jury that Gonzales had framed the defendant for the victim's murder, which actually had been committed by Perkins, who, after the shooting, had a sexual relationship with Gonzales and fathered a child with her.

         As previously discussed, the jury found the defendant guilty of felony murder, home invasion, and other charges; see footnote 1 of this opinion; and the court found the defendant guilty of the gun possession charge. The jury found the defendant not guilty of murder. This appeal followed.


         The defendant first claims that the court improperly overruled his objection to the state's use of a peremptory challenge to strike an African-American prospective juror. We disagree.

         The following facts are relevant to this claim. The defendant is of mixed race. On the first day of jury selection, defense counsel noted that the entire venire panel appeared to be ‘‘white Caucasian'' and that every prospective juror who had completed a jury questionnaire had indicated that they were either white or Caucasian, or had not indicated a race or ethnicity.

         On the second day of jury selection, only one prospective juror had indicated on the questionnaire that he or she was African-American. During the voir dire examination of one venireperson, W.T., he stated to defense counsel that he was African-American. W.T. indicated that he had obtained a master's degree in social work from the University of Connecticut and currently was employed by the state of Connecticut as a supervisory social worker with the Department of Children and Families.

         He also disclosed that he performed volunteer work for the Department of Correction and had worked directly with inmates. When asked by defense counsel whether that work might affect him as a juror, W.T. responded: ‘‘Because I work with, like I say, inmates, and also my work, I do-I mean, you see a lot of different things and you see a lot of sad situations. I'm sure as a professional and because I work with people who've been through a lot of stuff, you know, I'm sure I have an understanding of what they're doing. And also, just-just in the criminal justice system in general, I know how sometimes people are not, you know, given a fair trial or they may be disproportionately have to go to jail and different things of that nature. So, part of my whole experience is as an African-American, as an American and also studying these situations, I know that there's a lot of issues go on in various systems. The criminal justice system, the educational system and various systems, but people are not fairly treated, so I know that much. But I don't use that, you know, I can-I could make a professional-and I think keep my composure and do my job just like-as a professional, as I work-even as I do volunteer work, but you have to know the reality in life as well, though.'' In response to a subsequent question by defense counsel regarding whether, in light of his life experiences, he could be fair to both sides in the case, W.T. stated that he could.

         During the state's voir dire examination of W.T., the following exchange occurred:

‘‘[The Prosecutor]: Now, you've obviously had a little more dealing with the court systems than most-most people that we see in through here. Have you formulated any opinions about the criminal justice system based on your experiences? Is it too lenient, too stringent, it works, it doesn't work; any feeling about that.

‘‘[W.T.]: And like I said, probably already share too much stuff about-that talk about in terms of I have seen people, have had family members had went to prison before.

‘‘[The Prosecutor]: Right.

‘‘[W.T.]: And I just think-I think that's why I became a social worker, because I wanted to make a difference, and that's why I have been doing mentoring programs-

‘‘[The Prosecutor]: Yep.

‘‘[W.T.]: -try to help young people so they won't get into trouble. So, I meant the system, all various systems, there's a lot of discrimination still goes out. Even today, ladies are still not getting equal pay. So, it's a lot. We've come a long way, but we have a long way to go.

‘‘[The Prosecutor]: Right.

‘‘[W.T.]: But I think I can make-I could keep the facts and be able to look at the facts of the case and judge by the facts.

‘‘[The Prosecutor]: . . . We need to know how you're feeling, so we can make the appropriate assessment and you can make the appropriate assessment. . . . I think that it's not a perfect system, but it's improving every day, and [there are] not as many systems that I can think of that are, any-come anywhere close. One of the concerns that people may have is, jurors who are in the-using their time as a juror to try to fix the system. You indicated, and I think you said, that you would listen to the evidence and decide it on the evidence and you wouldn't let any concerns that you had filter in.

‘‘[W.T.]: That's correct.

‘‘[The Prosecutor]: Fair to say?

‘‘[W.T.]: That's correct.

‘‘[The Prosecutor]: Okay. And so, that you would sit and listen to what all the evidence is and make a decision based on the evidence.

‘‘[W.T.]: That's correct .....

‘‘[The Prosecutor]: Okay. With respect to that, as much as you know about those situations, were you satisfied with the way the police reacted to your family being or friend being the victim of a crime?

‘‘[W.T.]: Sometimes and sometimes not.

‘‘[The Prosecutor]: Okay.

‘‘[W.T.]: So-so.

‘‘[The Prosecutor]: Fair to say that it's an individual situation and that the police have been-have acted in a way that was satisfactory toward your family members or friends, and in other situations they weren't satisfied with what the police did.

‘‘[W.T.]: That's correct.

‘‘[The Prosecutor]: Okay. Had you had any interactions with the police in any respect in which you developed an-either a strong, favorable impression or an unfavorable impression about the police and the way they treated you in any situation, speeding tickets, calling up to complain about any noisy neighbor, something with work.

‘‘[W.T.]: I'm, like-just growing up in this society, I fear, you know, I fear my life. I got a new car, I feared that, you know, I might get stopped, you know, for being black, you know. So, you know, that's concerning and sometimes I get afraid-even me, you know, I- when I see the police in back of me, I wonder, you know, if I'm going to be stopped.

‘‘[The Prosecutor]: Okay. Now with-with respect to that, there will probably be police officers who will be testifying here, and the judge will tell you that [you] can't give a police officer more credibility merely because they are a police officer. Conversely, though, they don't get less credibility merely became they are police officers. They are to be treated like anybody else. Would you have any difficulty following the judge's instructions concerning that?

‘‘[W.T.]: No, I wouldn't.

‘‘[The Prosecutor]: Okay. And I can appreciate what you're saying. Obviously, I haven't been in that-in your shoes. I haven't been in your situation, nor do we ask the jury to put themselves in the shoes of either the police or a particular defendant. We can't ask you to do that. But having now life's experience, is that something that you think you can put aside and decide the evidence based on everything that's presented to you, or is there some concern that you might have that you might not be able to do that.''[W.T.]: No, I will be able to because another thing, too, is, I know good police officers who are-who are good people, nice people, mentors who work in the community. So-so, yes, I'd be able to.

‘‘[The Prosecutor]: Okay. Okay. And have you had the positive experiences with the police as well?

‘‘[W.T.]: Yes.

‘‘[The Prosecutor]: Okay. So, I guess like anybody else, there are bad lawyers and there are good lawyers. There are bad social workers, there are good social workers. . . . But what I'm driving at is, we make an individual assessment based on what we hear and what we see and what we listen to. And that is what we're going to ask you to do if you're a juror.

‘‘[W.T.]: Yes.

‘‘[The Prosecutor]: We want to make sure you don't carry in any preconceived notions one way or the other.

‘‘[W.T.]: Yes.

‘‘[The Prosecutor]: No problems with that.

‘‘[W.T.]: No problem.

‘‘[The Prosecutor]: Okay. We can count on your word on that, then.

‘‘[W.T.]: That's right.

‘‘[The Prosecutor]: Okay. I asked about being the victim of a crime and your family member. The flip side to that, have you, any member of your family or any close personal friends ever been either accused or ever convicted of crimes?

‘‘[W.T.]: Yes. I have family members who've been in- who served time in jail.

‘‘[The Prosecutor]: Okay. This obviously is a crime of violence. Any-any family members who have been convicted of crimes of violence?

‘‘[W.T.]: No. . . .

‘‘[The Prosecutor]: You mentioned that your family members have-have served time. With respect to that, were-did you develop any feelings about the way the police had treated your family members in those situations?

‘‘[W.T.]: Well, I think the-like I told you earlier, my life experiences living in this world-

‘‘[The Prosecutor]: Right.

‘‘[W.T.]: -you see that things are not fair. And then you-I mean, you-you experience things, you know, and you see things happen. And some things are not fair, some things not-not all people are the same, all police are not bad or, like, you know, just like you said everybody, but when you see firsthand your own family members, then you experience something a little bit different.

‘‘[The Prosecutor]: Of course.

‘‘[W.T.]: Other people who, you know, so-

‘‘[The Prosecutor]: Of course. And I guess it's kind of tough, because I-you know, I could ask you questions all day long and I'm not going to get to know you as well you know yourself. But there's a difference, I think, between I'm upset that my family member had to go through this versus I'm upset that the police treated my family member in such a way. Do you understand the distinction I'm trying to make, that you're not satisfied that your family member ended up in prison versus I'm not satisfied that they were treated properly by either the court system or by the police. There's a difference, and I'm not sure I'm explaining it very well.

‘‘[W.T.]: Are you saying more, like, for instance, like, someone may have gone to jail because they did something wrong-

‘‘[The Prosecutor]: Right.

‘‘[W.T.]: -and they had to pay the consequences.

‘‘[The Prosecutor]: Right. And you know, like that, but-

‘‘[W.T.]: So-exactly. You have to-even if it's your family member or not, you did something wrong, you need to pay the consequences.

‘‘[The Prosecutor]: Right.

‘‘[W.T.]: You need to pay the consequences for whatever you've done wrong, you know.

‘‘[The Prosecutor]: Right.''

         Following the voir dire examination, defense counsel stated that W.T. was acceptable to the defendant. The state, however, exercised a peremptory challenge and asked that W.T. be excused.

         The defendant immediately raised a Batson[3] objection to the state's use of a peremptory challenge, citing the fact that W.T. was the first African-American venire-person to be examined and that, in essence, W.T. had assured the court and the state that, regardless of his views about the criminal justice system or the police, he could be a fair and impartial juror.

         The state then responded: ‘‘I understand exactly where [defense counsel] is coming from, would agree with him for the most part with the exception of, I do believe that there are race neutral reasons for this. It was somewhat of a struggle for me, but I looked at some of the answers. And even though he responded favorably after further questioning, the concerns that I did have was the-the comments that-about disproportionate amount of people being sent to jail, disproportionate amount of jail time, the fact that he's had family members who have been convicted and have served time, the fact that he works to rehabilitate people. And none of this is per se bad, but I think in the context of this particular case, it's important, it's race neutral. If we had a Caucasian who was in the same situation, the exercising of a peremptory challenge would be the same, I think.

         ‘‘Additionally, the fact that he did mention . . . his concern about and his life's experience about driving and seeing a police officer behind him and his concern about police officers. Yes, he said that there are other police officers who are good and people can be good, but there is that life's experience that I would submit would make it difficult for him to be fair and impartial in this particular-in this particular case.

         ‘‘Again, I understand exactly what [defense counsel] is saying. I believe that they are race neutral reasons, and I was exercising the peremptory based on those race neutral reasons.''

         The court then asked for argument from the defendant, and defense counsel gave the following response: ‘‘With respect to being, as an African-American male, fearful when the police are behind you, I mean, that's just, you know, something that [the prosecutor] and I never have had to deal with it, but if this gentleman sitting next [to] me is entitled to a jury of his peers, we've picked three white people already. We've accepted them. I mean, isn't he-and that's a common complaint by African-American people, that they feel that they get pulled over too often, and there are probably studies that say it's disproportionate. So, that particular reason does seem to me to be race based . . . . It was [W.T.]'s view and, I mean, again, that's-he's entitled to a jury of his peers, and we get nobody who feels that way or has those thoughts is not really his peers because that's probably the experience or experiences of a lot of African-Americans go through.''

         The prosecutor, when asked if he wanted to argue further, stated: ‘‘Only briefly, and maybe it's a matter of semantics. I think Batson's is, oh, I see an African-American gentleman, I see an Asian-American, I see a Hispanic, I'm going to excuse them. If an African-American comes in with a distrust of the police and will not listen to a police officer and says he will not listen to a police officer, that isn't a challenge based on that person's race or ethnicity; it's a challenge based on that person's personal views.

         ‘‘If a white-a Caucasian person came in and said, I don't like being followed by the cops because I see a number of cops punch friends of mine in the face, it's not because he is a Caucasian, it's because of life's experiences. And I think that's what I would be arguing, that the comments that were made were not because of his ethnicityorhis race, but rather his-his expressed opinions. And I think ...

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