State v. Stange

• Decision Date: 15 August 1989
• Docket Number: No. 13359,13359
• Citation: 563 A.2d 681,212 Conn. 612
• Parties: STATE of Connecticut v. Thomas R. STANGE.
• Court: Connecticut Supreme Court

Page 681

563 A.2d 681

212 Conn. 612

STATE of Connecticut v. Thomas R. STANGE.

No. 13359.

Supreme Court of Connecticut.

Argued May 5, 1989.

Decided Aug. 15, 1989.

Eric A. Malchodi, Certified Legal Intern, with whom were Todd D. Fernow, Lawrence P. Rizzo, Certified Legal Intern, and, on the brief, Michael R. Sheldon and Timothy H. Everett, Hartford, for appellant (defendant).

Geoffrey Marion, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., James Thomas, Asst. State's Atty., and Janine D'Angelo, former Legal Intern, for appellee (State).

Before PETERS, C.J., and CALLAHAN, GLASS, HULL and SANTANIELLO, JJ.

SANTANIELLO, Associate Justice.

The defendant, Thomas Stange, was charged with one count of murder in violation of General Statutes § 53a-54a in connection with the shooting death of Roger Gagnon. Following a trial by jury, he was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1) and sentenced to a term of imprisonment. The defendant claims on appeal that the trial court erred in: (1) admitting under the spontaneous utterance exception to the hearsay rule statements made by the victim to a police officer identifying the defendant as the person who shot him; (2) commenting beyond permissible bounds on the admission of the victim's spontaneous utterances in its charge to the jury; and (3) refusing to permit the testimony of a police detective regarding statements that the victim had made to a friend. We find no error.

The jury could reasonably have found the following facts. On January 14, 1985, between 1:30 and 1:45 p.m., persons living in the area of East Plymouth Road, Terryville, heard two shots fired in rapid succession. A few minutes after hearing the shots, Tregg Johnson, the defendant's next door neighbor, and Douglas Trzuskowski, Johnson's guest, heard the victim, Roger Gagnon, yelling for help and knocking at the front door of the Johnson home. Looking out a window, Johnson and Trzuskowski saw the victim lying on the ground, holding his bleeding arm and yelling for help. Trzuskowski telephoned the Bristol police, who in turn notified the Plymouth police dispatcher at approximately 1:51 p.m. While waiting for the police to arrive, Johnson and Trzuskowski, watching from inside the house, saw the victim repeatedly fall to the ground, stagger to his feet and attempt to walk.

At approximately 1:56 p.m., police officer James Senetcen arrived at the Johnson home. He found the victim lying on Johnson's front lawn about thirty feet from East Plymouth Road, covered in blood, rocking back and forth in a fetal position, rubbing his abdomen and screaming that he had been shot. While waiting for an ambulance to arrive, Senetcen attempted to calm the victim, whom he believed to be in shock, and questioned him regarding what had happened. The victim told Senetcen that he had been shot by "Tom Stange."

At 2:01 p.m., an ambulance arrived and paramedic James Dubowsky examined the victim. He observed that the victim had sustained six to eight shotgun pellet wounds in his abdomen, chest and right wrist and was beginning to go into shock. The victim later died from the gunshot wounds.

At approximately 2:25 p.m., the Plymouth police dispatcher received a call from a man identifying himself as Thomas Stange of 27 East Plymouth Road in Terryville. Stange reported that minutes before, while he was outside, someone had run across his yard and threatened him. Later that afternoon, the defendant admitted to the police that he had shot the victim, but he claimed that he had acted in self-defense when frightened by the victim.

I

We consider first the defendant's claim that the trial court erred in admitting under the spontaneous utterance exception to the hearsay rule statements made by the victim to Senetcen. This claim arises out of the following trial court proceedings.

On the second day of trial, outside the jury's presence, the court conducted a hearing on the defendant's motion in limine to determine the admissibility of the victim's statements to Senetcen. In its offer of proof, the state called Senetcen, Dubowsky and Paul Morocco, an emergency room employee at Bristol Hospital, all of whom testified as to the victim's grave condition between the time he was found on Johnson's front lawn and the time he arrived at the hospital.

Senetcen also testified that upon arriving at the scene and determining that the victim was unarmed, he knelt by the victim and questioned him for "one to two minutes." Senetcen told the court that despite the victim's agitated state, he was able to understand quite well the victim's responses from which he learned the victim's name, address and date of birth. When Senetcen asked the victim who had shot him, he gestured toward the defendant's house and said, "Tom Stange." He also gave Senetcen a description of the defendant. The victim further informed Senetcen that he had arrived at the defendant's house at 1:45 p.m. in an attempt to get money owed to him by the defendant, that he had gone to the defendant's backyard and that the defendant said, "Come and get it" and shot him twice. When Senetcen asked the victim if he thought he was going to die, he replied that he felt "real bad."

At the conclusion of the state's offer of proof, the defendant argued that the victim's statements to Senetcen were hearsay and inadmissible under either the spontaneous utterance or dying declaration exceptions to the hearsay rule. The trial court, however, permitted the state to present Senetcen's testimony regarding the victim's statements to him under the spontaneous utterance exception, ¹ stating that "it is clear to the court ... that the likelihood for reflective thinking was not there under the circumstances." The defendant contends that, on the facts of this case, the trial court's admission of Senetcen's testimony over his objection and exception ² was manifest error that unfairly and critically undermined his claim of self-defense. We disagree.

In Perry v. Haritos, 100 Conn. 476, 484, 124 A. 44 (1924), we recognized a spontaneous utterance exception to the hearsay rule for an utterance or declaration that follows some startling occurrence, that makes reference to the occurrence by one having an opportunity to observe it and that is made in such close connection to the occurrence and under such circumstances as to negate the opportunity for deliberation and fabrication. ³ "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." Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342, 160 A.2d 899 (1960). 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. State v. Chesney, 166 Conn. 630, 634, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S.Ct. 324, 42 L.Ed.2d 280 (1974); ⁴ Cascella v. Jay James Camera Shop, Inc., supra; Perry v. Haritos, supra, 100 Conn. at 485, 124 A. 44. 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. State v. Chesney, supra, Perry v. Haritos, supra.

The crux of the defendant's argument is that the victim's statements lacked the requisite spontaneity to be admissible under the doctrine enunciated in Perry v. Haritos, supra. In support of his argument, the defendant asserts that the victim's statements consisted of a careful and orderly set of responses to a series of questions, some of which were only peripherally related to the shooting, and followed the shooting by some fifteen to thirty minutes. ⁵ He maintains that, in light of these factors, the statements were not made at a time and under circumstances in which the victim was incapable of cognitive, deliberate and reflective responses as required under Perry v. Haritos, supra.

While the element of time between the startling occurrence and the statement itself is important, it is not dispositive. Id., 100 Conn. at 484, 124 A. 44. The time element is but one factor to be weighed by the trial judge, together with any other material facts in the circumstances surrounding the statement, when deciding the preliminary question of whether a statement was spontaneous. Id.

A majority of the jurisdictions that have addressed the issue of the effect of the time interval between the startling occurrence and the making of the spontaneous utterance have recognized that an acceptable time interval cannot be specified. Each case must be decided on its particular circumstances. See United States v. Golden, 671 F.2d 369 (10th Cir.), cert. denied, 456 U.S. 919, 102 S.Ct. 1777, 72 L.Ed.2d 179 (1982) (victim's statements made fifteen minutes after assault and following high speed flight from the scene admissible as excited utterance); Hilyer v. Howat Concrete Co., 578 F.2d 422 (D.C.Cir.1978) (statement by worker made between fifteen and forty-five minutes after fellow worker was run over by a truck admissible as an excited utterance with evidence indicating continued excitement); People v. Francis, 129 Cal.App.3d 241, 180 Cal.Rptr. 873 (1982) (victim's statements made in calm manner within twenty minutes of stabbing under circumstances of physical and emotional stress and shock admissible as spontaneous utterance); People v. Gacho, 122 Ill.2d 221, 119 Ill.Dec. 287, 522 N.E.2d 1146 (1988) (victim's statement naming attacker six and one-half hours after shooting admissible as spontaneous declaration); People v. Brown, 70 N.Y.2d 513, 517 N.E.2d 515, 522 N.Y.S.2d 837 (1987) (victim's statements to police officer approximately thirty minutes after shooting properly admitted as excited utterance); Commonwealth v. Blackwell, 343 Pa.Super. 201, 494 A.2d...