State v. Schiappa

• Decision Date: 29 May 1997
• Docket Number: No. 14450,14450
• Citation: State v. Schiappa, 692 A.2d 820, 44 Conn.App. 731 (Conn. App. 1997)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kimberly P. SCHIAPPA.

Page 820

692 A.2d 820

44 Conn.App. 731

STATE of Connecticut v.Kimberly P. SCHIAPPA.

No. 14450.

Appellate Court of Connecticut.

Argued Dec. 12, 1996.

Decided April 15, 1997.

Certification Granted Limited to the Following Issues May 29, 1997.

Elizabeth M. Inkster, Assistant Public Defender, for appellant(defendant).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and C. Robert Satti, Jr., Assistant State's Attorney, for appellee(state).

Before DUPONT, C.J., and LANDAU and FRANCIS X. HENNESSY, JJ.

LANDAU, Judge.

The defendant, Kimberly P. Schiappa, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a)(3).¹On appeal, the defendant claims that the trial court improperly (1) admitted a hearsay statement, (2) permitted the jury to make a preliminary finding in connection with the determination of the admissibility of an adoptive admission by silence, (3) found the evidence sufficient to sustain her manslaughter conviction and (4) denied her request to recharge the jury.²

The jury reasonably could have found the following facts.On December 11, 1991, the defendant, an employee at Sikorsky Aircraft in Stratford, and a coworker, Stephen Staffy, met after work.They went to a liquor store and then to Staffy's house in Trumbull, where he lived with his roommate Gary Meier.The defendant and Staffy arrived at the house at approximately 5 p.m., when Meier, a bartender at the Huntington Inn, was leaving for work.The defendant and Staffy remained at the house, consumed alcohol and engaged in sexual intercourse.Sometime thereafter, they left the house and went to a few bars before stopping at the Huntington Inn, where they saw Meier.They left the Huntington Inn around 11 p.m. and drove to Bridgeport to purchase drugs.While in Bridgeport, they were confronted by the defendant's husband, James Schiappa.

Prior to confronting the defendant and Staffy, James Schiappa, who worked at the Country Home Bakery located in Bridgeport, was working the third shift from 11:30 p.m. to 7:30 a.m. James Schiappa requested permission to leave work early, at about 12:50 a.m., because his son James, who was twelve years old, was home alone.Instead of going home, however, James Schiappa went looking for his wife, the defendant.

As James Schiappa approached the defendant and Staffy in his pickup truck, Staffy drove off and unsuccessfully attempted to evade him.James Schiappa followed them into Saint John's cemetery in Stratford and, upon stopping, exited his pickup truck and approached Staffy's car.Staffy reached into the backseat of his car, grabbed a softball bat, exited his car and then proceeded to hit James Schiappa numerous times with the bat.Staffy also kept a knife under the front seat of his car.James Schiappa was stabbed in the neck and the back.The defendant and Staffy left the scene and drove back to Staffy's house.

An employee of the Ella Grasso Center, located adjacent to the cemetery, heard noises coming from the area of the cemetery at approximately 1:10 a.m.The employee called her supervisor, Delores Evans, and told her what she had heard.After hearing more noises from the same area, Evans called the Stratford police at approximately 1:15 a.m. Officer Thomas Clements was dispatched to the location and, upon entering the cemetery, noticed a pickup truck.Clements exited his patrol car and observed a white male, later identified as James Schiappa, lying in front of the truck.He showed no signs of life.

Meanwhile, Meier returned home from work and, before exiting his car, was approached by Staffy who said, "Turn off the lights, I just killed somebody."As this was said, the defendant was standing behind Staffy.The defendant, Staffy and Meier went into the house and shortly thereafter Staffy, holding a pair of boots and a leather jacket, said to Meier, "This stuff has to go."Staffy put the boots, jacket and a knife in a sheath into a plastic bag and gave the bag to Meier, who took it to Juniper Ridge Road and threw it into a pond.He then returned home.

The next day, a highway supervisor employed by the town of Trumbull noticed that the pond on Juniper Ridge Road was high and saw a garbage bag against the outflow pipe.He pulled the bag ashore and in the process ripped the bag.In the bag were a pair of boots, a leather jacket and a knife in a sheath.Detective Richard Yeomans of the Stratford police department was called to the pond and observed the contents of the bag, including a canceled check belonging to Staffy found in the jacket.The items were tested and the tests revealed a blood type matching that of James Schiappa on the boots and the jacket.

I

The defendant first claims that the trial court improperly admitted a hearsay statement.We agree.

Additional facts are necessary for the resolution of this issue.After Meier tossed the plastic bag containing Staffy's leather jacket, boots and knife into the pond, he returned home and told Staffy to turn himself in to the police.Meier expressed concern to Staffy that the defendant would be caught and implicate Staffy in the crime.According to Meier, Staffy responded, "She's not going to say nothin'.She beat his ass too."³

The defendant argues that Staffy's statement, "She's not going to say nothin'.She beat his ass too," given to allay Meier's concern that the defendant would be caught and inculpate Staffy, was inadmissible hearsay.The defendant argues that the statement does not fall under any recognized hearsay exception, was not made in circumstances assuring reliability and was not corroborated by any other evidence in the case.

The state argued at trial that the statement was admissible as a declaration against penal interest, as a prior inconsistent statement, and as impeachment of Staffy's testimony that he could not remember making this statement to Meier.The trial court found that the statement was reliable and admitted it under the declaration against penal interest exception to the hearsay rule.⁴On appeal, we limit our review to whether the trial court properly concluded that the statement satisfied the declaration against penal interest exception to the hearsay rule.

The principal grounds for the exclusion of hearsay statements are the "absence of an oath and the lack of the test of cross-examination.Shea v. Hyde, 107 Conn. 287, 289, 140 A. 486[1928].See alsoState v. Barlow, 177 Conn. 391, 396, 418 A.2d 46[1979];General Motors Acceptance Corporation v. Capitol Garage, Inc., 154 Conn. 593, 597, 227 A.2d 548[1967].A third concern has also been expressed: the lack of the personal presence of the out of court declarant, which results in the jury's inability to observe the declarant's demeanor so as to judge credibility.Douglas v. Alabama, 380 U.S. 415, 418-19, 85 S.Ct. 1074[, 1076-77], 13 L.Ed.2d 934[1965]."State v. DeFreitas, 179 Conn. 431, 440, 426 A.2d 799(1980).

Exceptions to the hearsay rule have arisen when the party offering the hearsay evidence sufficiently establishes the necessity and reliability of that evidence."The necessity factor is reflected in the prerequisite that the declarant be unavailable....Several exceptions to the hearsay rule require the declarant to be unavailable as a witness at the present trial."(Citation omitted.)State v. DeFreitas, supra, 179 Conn. at 440-41, 426 A.2d 799.

A requirement for admitting third party declarations against penal interest is the unavailability of the declarant's testimony.State v. Bryant, 202 Conn. 676, 694, 523 A.2d 451(1987);State v. Frye, 182 Conn. 476, 480-81, 438 A.2d 735(1980).Connecticut has adopted the definition of unavailability set forth in Rule 804(a) of the Federal Rules of Evidence, the relevant portion of which includes situations where the declarant "testifies to a lack of memory of the subject matter of the declarant's statement."Fed.R.Evid. 804(a)(3);State v. Lynch, 21 Conn.App. 386, 396, 574 A.2d 230(1990).A determination of unavailability is normally a question of fact within the trial court's discretion.Fontaine v. Coyle, 174 Conn. 204, 209, 384 A.2d 616(1978);State v. Lynch, supra, at 398, 574 A.2d 230.

The trial court found that Staffy was selective in his memory which "virtually ... [made] him unavailable to testify" on this issue.The record reflects, however, that, at trial, Staffy did not testify to a lack of memory of the subject matter to establish unavailability.Our review of Staffy's testimony reveals that he was able to recall a substantial portion of the evening's events.Staffy testified in part to the following course of events on December 11 and 12, 1991.He remembered leaving work with the defendant, going to a liquor store and then to his house.He remembered seeing Meier, who was leaving for work, and then engaging in sexual intercourse with the defendant.He testified that they left the house and went to a couple of bars.Later, they stopped at the Huntington Inn for a couple of drinks and to see Meier, and then went to Bridgeport to purchase drugs.He remembered seeing James Schiappa, trying to evade him and then confronting him at the cemetery.He testified that he hit James Schiappa with the bat because he felt threatened and, further, that he did not check to see if James Schiappa was alive when he and the defendant left the cemetery because he was nervous and scared.He also remembered returning to his house with the defendant, seeing Meier and telling him that he had been in a fight.

It is clear from the foregoing that Staffy testified at great length about the events of December 11 and 12, 1991, and was available to testify and to be cross-examined.While he was unable to recall some specific facts, that did not amount to a lack of memory of the subject matter.We decline to extend the scope of unavailability to include...