State v. Slater

• Decision Date: 31 October 2006
• Docket Number: No. 26356.,26356.
• Citation: 908 A.2d 1097,98 Conn.App. 288
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John SLATER.

908 A.2d 1097

98 Conn.App. 288

STATE of Connecticut v. John SLATER.

No. 26356.

Appellate Court of Connecticut.

Argued September 6, 2006.

Decided October 31, 2006.

William B. Westcott, special public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence Mariani, senior assistant state's attorney, for the appellee (state).

McLACHLAN, GRUENDEL and ROGERS, Js.

GRUENDEL, J.

The defendant, John Slater, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a)(2)(B). The defendant claims that the trial court (1) violated his right of confrontation by admitting certain hearsay evidence and (2) violated his right to a fair trial by denying his request for a special jury instruction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In Waterbury on the evening of May 6, 1997, the defendant forced the victim¹ into his motor vehicle and, with a knife in hand, forced her to engage in sexual relations. After ejaculating in her vagina, the defendant let the victim go. Moments later, Barry Kilcran and Gary Jones, who were standing in front of Kilcran's home at 129 Warner Street, heard the screams of a woman. As Jones testified, "a girl was coming down the street, she was crying, screaming, saying somebody tried to rape me." The victim described her attacker only as "a black male with a big knife." The men attempted to calm the victim, brought her inside Kilcran's home and called the police. Jones testified that the victim "wasn't normal . . . she was crying. She looked hysterical, disoriented."

Shortly thereafter, officers from the Waterbury police department and an ambulance arrived at 129 Warner Street. The victim was transported to St. Mary's Hospital and admitted to the emergency room. Catherine Judd, a registered nurse, first encountered the victim, whom she described as crying and upset. Judd noted that the victim "was trying to hide in a corner" of the emergency room. The victim told Judd that she had been raped. Mickey Wise, a physician, also treated the victim that evening and administered a rape kit, which is used to gather evidence from the victim of a sexual assault. Among the evidence gathered that evening were vaginal swabs. Wise testified that the victim informed him that an "unknown person forced her into his car and . . . . forced her to perform oral sex on him, then vaginal intercourse. Ejaculated in her vagina. . . . He had a large knife with which he poked her on her right hand."

The rape kit was forwarded to the Waterbury police department, which unsuccessfully investigated the rape complaint, and the case ultimately was closed. The case was opened four years later, at which time the police obtained a blood sample from the defendant. The state police forensic laboratory analyzed the sample and compared the DNA profile contained therein with that extracted from the victim's vaginal swab. They matched.²

The defendant was arrested and charged with sexual assault in the first degree and kidnapping in the first degree. Prior to trial, the victim died from causes unrelated to the May 6, 1997 sexual assault. In light of her unavailability for trial, the defendant filed a motion in limine to exclude certain hearsay evidence consistent with the mandates of Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which the court denied. After a trial by jury, the defendant was convicted of both charges. The court subsequently sentenced the defendant to concurrent fifteen year terms of imprisonment with five years special parole, and this appeal followed.

I

The defendant first challenges the admission of certain hearsay statements as violative of his sixth amendment right of confrontation.³ This court recently addressed this evolving area of constitutional law in State v. Miller, 95 Conn.App. 362, 896 A.2d 844, cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006). We stated: "[T]he state's use of hearsay evidence against an accused in a criminal trial is limited by the confrontation clause of the sixth amendment. . . . [It] guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. . . . The right to confrontation secures to the defendant the opportunity to cross-examine witnesses against him . . . and to expose to the jury the facts from which the jurors . . . could appropriately draw inferences relating to the reliability of the witness. . . .

"Traditionally, for purposes of the confrontation clause, all hearsay statements were admissible if (1) the declarant was unavailable to testify, and (2) the statement bore adequate indicia of reliability. . . . In a sea change in sixth amendment jurisprudence, the United States Supreme Court in Crawford v. Washington, [supra, 541 U.S. at 68, 124 S.Ct. 1354], overruled, in part, Ohio v. Roberts, [448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)]. In Crawford, the court redefine[d] the scope and effect of the Confrontation Clause. . . . In reframing its purpose and scope, the court determined that the clause's predominant objective . . . is preventing the admission of testimonial statements against criminal defendants who never had an opportunity to cross-examine the declarant. . . . The court thus held that no prior testimonial statement made by a declarant who does not testify at the trial may be admitted against a defendant unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine him or her. . . . At the same time, Crawford leaves the Roberts approach untouched with respect to nontestimonial statements. . . . Our inquiry into whether the [admission of the] statement violates the confrontation clause must therefore begin with a consideration of whether the challenged statement was testimonial, as that term is used in Crawford.

"The Crawford court expressly declined to spell out a comprehensive definition of testimonial. . . . However, it held that the term applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. . . . By contrast, it does not apply to a casual remark made to an acquaintance. . . . Beyond that, the court left for another day the question of precisely what constitutes testimonial hearsay. . . .

"In the wake of Crawford, courts across the country have grappled with the meaning of testimonial hearsay. The United States Court of Appeals for the Second Circuit tackled the issue in United States v. Saget, [377 F.3d 223 (2d Cir.2004), cert. denied, 543 U.S. 1079, 125 S.Ct. 938, 160 L.Ed.2d 821 (2005)]. It observed that the types of statements cited by the [Crawford court] as testimonial share certain characteristics; all involve a declarant's knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings and noted further that Crawford suggests that the determinative factor in determining whether a declarant bears testimony is the declarant's awareness or expectation that his or her statements may later be used at a trial. . . . The Second Circuit thus reasoned that the [United States Supreme] Court would use the reasonable expectation of the declarant as the anchor of a more concrete definition of testimony."⁴ (Citations omitted; internal quotation marks omitted.) State v. Miller, supra, 95 Conn. App. at 380-82, 896 A.2d 844. Finally, we note that the determination of whether a statement is testimonial under Crawford is subject to plenary review. State v. Kirby, 280 Conn. 361, 378, 908 A.2d 506 (2006).

In the present case, the defendant objects to both the victim's statements to Kilcran and Jones at 129 Warner Street and her statements to Judd and Wise in the emergency room. We consider each in turn.

A

The defendant first objects to the admission of the victim's statement to Kilcran and Jones at 129 Warner Street that she had been raped by a black male with a big knife. In denying the defendant's motion in limine to exclude that statement, the court concluded that the statement constituted a nontestimonial excited utterance. We agree.

The spontaneous utterance is a firmly rooted exception to the hearsay rule that is at least two centuries old. White v. Illinois, 502 U.S. 346, 355 n. 8, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). Connecticut first recognized the spontaneous utterance exception in Perry v. Haritos, 100 Conn. 476, 124 A. 44 (1924). Our Supreme Court explained: "This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced . . . by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy, . . . and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts. . . . When the declaration follows some startling occurrence and is made with reference to it by one having an opportunity to observe the matter of which he speaks, and in such close connection to the event and under such circumstances as to negative the opportunity for deliberation and fabrication and to indicate that it was a spontaneous utterance growing out of the nervous excitement and mental and physical condition of the declarant, it is reasonably...