State v. Pugh

• Decision Date: 19 September 2017
• Docket Number: (AC 39688).
• Citation: 170 A.3d 710,176 Conn.App. 518
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Matthew PUGH

176 Conn.App. 518

170 A.3d 710

STATE of Connecticut

v.Matthew PUGH

(AC 39688).

Appellate Court of Connecticut.

Argued April 10, 2017

Officially released September 19, 2017

Damian Gunningsmith, with whom, on the brief, was John L. Cordani, Jr., for the appellant (defendant).

Matthew A. Weiner, assistant state's attorney, with whom, on the brief, was Kevin D. Lawlor, state's attorney, for the appellee (state).

Lavine, Keller and Pellegrino, Js.

LAVINE, J.

The principal issue in this appeal is whether the trial court improperly admitted into evidence, under the spontaneous utterance exception to the rule against hearsay, statements made by the victim relating to the unexpected presence of her former boyfriend, the defendant Matthew Pugh, whom she feared. The defendant appeals from his conviction, following a jury trial, of murder in violation of General Statutes § 53a–54a(a) and burglary in the first degree in violation of General Statutes § 53a–101(a)(2). On appeal, the defendant claims that the trial court: (1) abused its discretion by admitting into evidence statements made by the victim pursuant to the spontaneous utterance exception to the rule against hearsay; (2) erroneously admitted into evidence testimonial hearsay in violation of his rights under the confrontation clause of the sixth amendment to the federal constitution by permitting a police investigator to testify as to certain witness statements regarding the defendant's claimed whereabouts on the day of the murder; and (3) committed plain error when it did not dismiss, sua sponte, the burglary in the first degree charge, which had been brought beyond the applicable statute of limitations. We affirm the judgment of the trial court.

By way of long form information, the state charged the defendant with murder and burglary in the first degree. These charges stemmed from the death of Alexandra Duscay, the victim, whose body was found by her mother, Linda Duscay, in their Milford home at approximately 4:30 p.m. on May 19, 2006. An autopsy revealed that the victim died as a result of blunt force trauma and stab wounds

to her head. Following the jury's verdict of guilty on both counts, the trial court sentenced the defendant to a term of imprisonment of sixty years on the murder conviction and a concurrent sentence of twenty years on the burglary conviction, for a total effective sentence of sixty years to serve. This appeal followed. Additional facts will be set forth as necessary.

I

We begin with the defendant's first claim challenging the trial court's admission of the victim's statements under the spontaneous utterance exception to the rule against hearsay. Specifically, the defendant challenges the testimony of Jermaine Morton, who testified that the victim stated, during a telephone call on May 19, 2006, that her "ex-boyfriend" was at the door and "what are you doing here? You were supposed to call first." The defendant argues that the "nonviolent" arrival of a former boyfriend is not the type of startling event that would shock and overwhelm the senses and that statements made in relation to that event are not free from the opportunity to deliberate or fabricate.¹ We disagree.

The following additional facts, which the jury reasonably could have found, and procedural history are relevant to the resolution of the defendant's claim. The victim met the defendant when she was a teenager. The two became romantically involved, and the victim considered the defendant her boyfriend. Although the defendant was sentenced to prison in 1998, he and the victim continued to communicate with one another.

During the defendant's incarceration, however, the victim began to distance herself from him, finding the relationship stressful. She ultimately decided to end the relationship just prior to the defendant's release from prison in 2004. Soon after the defendant was released on August 6, 2004, the victim told her brother, Erik Terranova, that she feared the defendant.

Nicole Williamson, a close friend of the victim, also testified that the victim even worried that the defendant might be hiding in the bushes when she returned home at night. According to family and friends, the defendant was the only individual whom the victim referred to as her "ex-boyfriend."

At approximately 12:30 p.m. on May 19, 2006, the victim, while at home in Milford, placed a call to Morton, whom she had been dating for a few weeks. At trial, the state called Morton to testify regarding the statements he overheard the victim make during this phone call. In an offer of proof made outside of the presence of the jury, Morton testified that, during their conversation, "she told me to hold on, and she said someone was at her door. I could actually hear her in the background say what are you doing here? You were supposed to call first. She got back on the phone. She told me not to—she would call me right back. She called me back about ten to twenty—five to twenty minutes, or whatever, and after that she didn't say anything. She just talked about—we had another regular conversation. She didn't sound hurt or she didn't sound anything like that, so I didn't take alarm of anything, so."² (Emphasis added.) After reviewing the written statement that he gave to police on May 19, 2006, Morton further testified that the victim informed him that her "ex-boyfriend" was the individual at the door.³ The court asked Morton to describe the "nature" of the victim's statements, and Morton testified that the victim was "annoyed" and "surprised that [the defendant] was there."

Over the defendant's objection, the court admitted Morton's testimony recounting the victim's statements, concluding that the statements: (1) followed the startling event of an unannounced appearance of an individual; (2) related to that appearance; (3) demonstrated the victim's direct observation of the individual's appearance; and (4) were reliable because they were made under circumstances during which the declarant did not have time to fabricate her observations.

Before we address the defendant's claim, we set forth the applicable legal principles. "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.... Among the recognized exceptions to the hearsay rule is the spontaneous utterance exception, which applies to an utterance or declaration that: (1) follows some startling occurrence; (2) refers to the occurrence; (3) is made by one having the opportunity to observe the occurrence; and (4) is made in such close connection to the occurrence and under such circumstances as to negate the opportunity for deliberation and fabrication by the declarant.... [T]he 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....

Whether an utterance is spontaneous and made under circumstances that would preclude contrivance and misrepresentation is a preliminary question of fact to be decided by the trial judge.... The trial judge exercises broad discretion in deciding this preliminary question, and that decision will not be reversed on appeal absent an unreasonable exercise of discretion." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Wargo , 255 Conn. 113, 127–28, 763 A.2d 1 (2000) ; see also Conn. Code Evid. § 8–3(2).

To be admissible as a spontaneous utterance, "[t]he event or condition must be sufficiently startling so as to produce nervous excitement in the declarant and render [the declarant's] utterances spontaneous and unreflective." (Internal quotation marks omitted.) State v. Kirby , 280 Conn. 361, 374, 908 A.2d 506 (2006) ; see also Perry v. Haritos , 100 Conn. 476, 483–85, 124 A. 44 (1924) (statement deemed trustworthy because it "is made under the immediate and uncontrolled domination of the senses" [internal quotation marks omitted] ). In reviewing the defendant's claim, we bear in mind that "whether a statement is truly spontaneous as to fall within the spontaneous utterance exception [is] ... reviewed with the utmost deference to the trial court's determination." State v. Saucier , 283 Conn. 207, 219, 926 A.2d 633 (2007).

It appears that the defendant is challenging both the first and fourth elements of a spontaneous utterance, namely, whether the victim's statement "followed some startling occurrence" and whether her statement was "made in such close connection to the occurrence and under such circumstances as to negate the opportunity for deliberation and fabrication by the declarant." State v. Wargo , supra, 255 Conn. at 127, 763 A.2d 1. On the basis of our review of the record, we conclude that the trial court did not abuse its discretion by admitting Morton's testimony regarding the statements that he overheard the victim make while on the phone.

Connecticut courts have had numerous opportunities to assess the types of "startling events" that can generate the kind of nervous excitement or uncontrolled outbursts captured by the spontaneous utterance exception to the rule against hearsay.⁴ At the outset, we appreciate the fact that the unannounced presence of an individual at one's door, in and of itself, may not appear to be among the usual set of circumstances envisioned when evaluating whether a statement is, or is not, admissible as a spontaneous utterance. Although this court has previously suggested that certain events lack the "trauma necessary to negate the opportunity for deliberation and fabrication"; (internal quotation marks omitted) State v. McNair , 54 Conn.App. 807, 813, 738 A.2d 689, cert. denied, 251 Conn. 913, 739 A.2d 1249 (1999) ; "the application of the exception entails a uniquely fact bound inquiry." State v. Westberry , 68 Conn.App. 622, 628, 792 A.2d 154, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002). Thus, whether a statement qualifies as a...