State v. McNair, (AC 17459)

• Decision Date: 14 September 1999
• Docket Number: (AC 17459)
• Citation: 738 A.2d 689,54 Conn. App. 807
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. GWENDOLYN MCNAIR

54 Conn. App. 807

738 A.2d 689

STATE OF CONNECTICUT v. GWENDOLYN MCNAIR

(AC 17459)

Appellate Court of Connecticut.

Argued March 29, 1999.

Officially released September 14, 1999.

Lavery, Spear and Sullivan, Js. Katharine S. Goodbody, special public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Anne Mahoney, assistant state's attorney, for the appellee (state).

Opinion

LAVERY, J.

The defendant, Gwendolyn McNair, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant claims that the trial court improperly (1) admitted statements made by a witness as evidence under the spontaneous utterance exception to the hearsay rule, (2) admitted evidence of the victim's pregnancy at the time of the incident and (3) charged the jury on self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of September 19, 1995, the victim, Crystal Hill, rode her bicycle to a housing project at 31 Annawan Street in Hartford to visit friends. The defendant lived in the housing project and was on the grounds. The defendant and an acquaintance, Clarence Jones, waited on an outside porch for a delivery man to bring food. Jones began arguing with his brotherin-law, a man named Donovan. Jones and Donovan continued to argue and walked around to the back of a building. The defendant saw the victim follow them and also went to the rear of the building. The defendant and the victim exchanged words, and tempers erupted. The victim disarmed the defendant of a bottle and shortly thereafter punched or slapped the defendant in the head. The defendant responded by stabbing the victim. The victim testified, "Every time I was hitting her she was stabbing me." The defendant's teenage son also joined the fight.

Officer Salvatore Abbatiello of the Hartford police department arrived at 11:40 p.m., moments after the stabbing, and tended to the victim's wounds. Officer Nevile Brooks arrived shortly after midnight and was directed by Abbatiello to a potential witness in a nearby apartment. Brooks went directly to the apartment. The woman residing there was nervous and reluctant to talk to the officer, but, once Brooks asked if she saw what happened outside, the woman stated what she knew in detail without further prompting.¹ The defendant was arrested that evening.

Meanwhile, the victim was taken to Hartford Hospital and treated for her injuries. Rocco Orlando, the attending trauma surgeon, testified at trial regarding the victim's injuries. The victim received multiple stab wounds and suffered significant blood loss. Orlando further testified that medical personnel paid particular attention to the victim's abdominal wounds because she was pregnant. The victim remained in Hartford Hospital for six days.

I

The defendant first claims that the admission of a witness' statements reported by Brooks violated the rule against hearsay and did not fall within the bounds of the spontaneous utterance exception. We agree with the defendant that the trial court improperly admitted the statement. We conclude, however, that this error was not harmful.

"An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies." State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998). "In Perry v. Haritos, 100 Conn. 476, 124 A. 44 (1924), our Supreme Court recognized the spontaneous utterance exception to the hearsay rule. This exception allows otherwise inadmissible statements into evidence to prove the truth of the matter asserted if it is proven that (1) the declaration follows some startling occurrence, (2) the declaration refers to the occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant. State v. Stange, 212 Conn. 612, 616-17, 563 A.2d 681 (1989); Perry v. Haritos, supra, 484." State v. Cayouette, 25 Conn. App. 384, 387, 594 A.2d 1020 (1991). The excited utterance exception "rests on the view that such assertions, made in reaction to a startling event, are trustworthy and void of self-interest. Mei v. Alterman Transport Lines, Inc., [159 Conn. 307, 315, 268 A.2d 639 (1970)]." C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.11.1, p. 373.

"As a preliminary matter, the trial judge must determine whether an utterance qualifies under this exception to the hearsay rule, and that decision will not be disturbed on appeal unless it constitutes an unreasonable exercise of discretion. State v. Stange, supra, ; State v. Chesney, 166 Conn. 630, 638, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974); Perry v. Haritos, supra, ." State v. Cayouette, supra, 25 Conn. App. 387.

"The requirement that a spontaneous utterance be made under such circumstances as to negative the opportunity for deliberation and fabrication by the declarant ... does not preclude the admission of statements made after a startling occurrence as long as the statement is made under the stress of that occurrence." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Rodriguez, 39 Conn. App. 579, 603, 665 A.2d 1357 (1995), rev'd on other grounds, 239 Conn. 235, 684 A.2d 1165 (1996). "While the short time between the incident and the statement is important, it is not dispositive.... All material facts should be weighed by the trial judge when determining whether a statement qualifies as a spontaneous utterance." (Citations omitted.) State v. Cayouette, supra, 25 Conn. App. 388. "`The ultimate question is whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation.' " State v. Stange, supra, 212 Conn. 617.

The crux of the state's argument is that the statements of the witness held the requisite spontaneity and timeliness to be admissible under the doctrine enunciated in Perry v. Haritos, supra, 100 Conn. 484. In support of its argument, the state asserts that the witness was visibly nervous, reluctant to speak to the police and feared retribution from the defendant. Also, once the witness did talk with the officer, she provided most of what she knew with minimal prompting. The state maintains that, in light of these factors, the statements were made at a time and under circumstances in which the witness was incapable of cognitive, deliberate and reflective responses as required under Perry v. Haritos, supra, 484-85.

On appeal, the defendant does not dispute that the declarant's statements followed a startling occurrence, were made with reference to the occurrence or that the declarant observed the occurrence. Nevertheless, the defendant argues that the statements were not made under circumstances that negate the opportunity for deliberation and fabrication for the witness.

Although not dispositive, the length of time between the startling event and the statement is a key factor. State v. Cayouette, supra, 25 Conn. App. 388. Traditionally, our Supreme Court has allowed a very narrow time frame within which a spontaneous utterance could arise. Rockville v. White Line Bus Co., 109 Conn. 706, 710, 145 A. 504 (1929) (three minutes too long); Perry v. Haritos, supra, 100 Conn. 483 (utterance permitted where made in such close proximity to accident as to be almost part of and contemporaneous with it). The presence or absence of a very brief time frame between the event and the spontaneous utterance was "decisive." Perry v. Haritos, supra, 483. Recent decisions, however, have under certain circumstances expanded the acceptable time frame between an event and the spontaneous utterance to a significant period. State v. Stange, supra, 212 Conn. 614-15, 618 n.5 (fifteen to thirty minutes); State v. Guess, 44 Conn. App. 790, 804, 692 A.2d 849 (1997), aff'd, 244 Conn. 761, 715 A.2d 643 (1998) (one hour); State v. Cayouette, supra, 386-88 (between ten and twenty-nine minutes). In this case, the declarant did not speak to the officer until approximately thirty minutes after the stabbing.

At this point, however, the similarities between Stange, Guess, Cayouette and this case end. In all three of those decisions in which a significant time lapse was allowed, the declarant had undergone drastic personal trauma and remained in a severe emotional state from the time of the event until the time of the statement. In State v. Stange, supra, 212 Conn. 614, the declarant was the victim of multiple shotgun pellet wounds, was beginning to go into shock, and was found by police "covered in blood, rocking back and forth in a fetal position, rubbing his abdomen and screaming that he had been shot." In State v. Guess, supra, 44 Conn. App. 793, the declarant had narrowly missed being harmed by fifteen to twenty gunshots and had witnessed his friend sustain critical wounds from the shooting. The police found the declarant "frantic and shaking." Id. In State v. Cayouette, supra, 25 Conn. App. 386, the declarant had been bound, punched and raped by the defendant and had been found by police lying on the floor in "a kind of catatonic state."

In this case, the agitation suffered by the witness, particularly in light of the significant lapse in time between the event and the statement, simply does not rise to the level of trauma necessary to "negate the opportunity for deliberation and fabrication...." Id., 387. The witness was not the actual or intended victim, or even a close bystander. The witness viewed the incident from the safety of her apartment. The thirty minute intervening period gave the witness "ample time to collect her...