State v. Wargo

• Decision Date: 19 December 2000
• Docket Number: (SC 16186)
• Citation: 763 A.2d 1,255 Conn. 113
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. LANCE WARGO

255 Conn. 113

763 A.2d 1

STATE OF CONNECTICUT v. LANCE WARGO

(SC 16186)

Supreme Court of Connecticut.

Argued April 18, 2000.

Officially released December 19, 2000.

McDonald, C. J., and Norcott, Katz, Palmer and Vertefeuille, Js. Moira L. Buckley, for the appellant (defendant).

Mitchell S. Brody, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Joan K. Alexander, former supervisory assistant state's attorney, for the appellee (state).

Opinion

PALMER, J.

A jury found the defendant, Lance Wargo, guilty of one count of murder in violation of General Statutes § 53a-54a (a),¹ two counts of arson in the first degree in violation of General Statutes § 53a-111 (a) (1) and (4),² one count of tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1),³ and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21.⁴ The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective prison term of fifty years. On appeal,⁵ the Appellate Court affirmed the judgment of the trial court. State v. Wargo, 53 Conn. App. 747, 768, 731 A.2d 768 (1999). We granted the defendant's petition for certification limited to the following three issues:

" 1. Whether the Appellate Court correctly determined that the admission of the medical examiner's testimony regarding possible causes of death that leave markings only on the skin was harmless error?

"2. Whether the Appellate Court correctly determined that the hearsay testimony of three witnesses regarding statements made to them by the defendant's children was properly admitted under the excited utterance exception to the hearsay rule?

"3. Whether the Appellate Court correctly determined that witness testimony regarding the [victim's] fearful state of mind regarding the defendant was relevant to prove his motive to murder her and was more probative of his motive than it was prejudicial to the defendant?" State v. Wargo, 250 Conn. 922, 922-23, 738 A.2d 662 (1999).

As to the first certified issue, we conclude that, contrary to the determination of the Appellate Court, the trial court did not abuse its discretion in permitting the state to elicit testimony from the medical examiner regarding possible causes of death that commonly leave markings only on the skin. With respect to that issue, therefore, we conclude that the Appellate Court properly rejected the defendant's claim, though not because the trial court's evidentiary ruling was harmless error, as the Appellate Court held, but, rather, because the trial court's ruling simply was not erroneous. As to the second and third certified issues, we answer both in the affirmative. Accordingly, we affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the facts that the jury reasonably could have found. "On November 19, 1994, at approximately 3:19 a.m., Ronald McClain and Sheila McClain, neighbors who lived across the street from the defendant [on Hillside Avenue in Plymouth], awoke to screams from the defendant's children. Ronald McClain observed an orange glow coming from the left side of the [defendant's] house. He also observed the defendant's two children on the roof of the front porch, a ladder against the front porch and the defendant standing at the bottom of the ladder. [Ronald] McClain called 911 and went downstairs to let the [defendant and his children] into [McClain's] home. The children were screaming that their house was on fire and that they could not find their mother [Wendy Wargo].⁶ The defendant stated that his wife was in the house, that he could not get her out and that he did not know if she had come home. The children remained at the McClain home while the defendant and Ronald McClain returned to the burning house. The defendant again stated that he did not know if his wife had come home that evening.

"The firefighters arrived a few minutes later and found the defendant outside the house, confused and attempting to put water on the fire with a garden hose. The defendant told the firefighters that he did not know his wife's whereabouts. Later, the defendant, while he pointed to the den, told fireman Frederick Telke, `Yes, she's in here, she's in here.' When asked if he was sure, the defendant walked to the driveway and pointed to his wife's car. "Firefighters entered the home and approached the den, where the fire was concentrated, but were unable to remain due to the high temperatures, heavy smoke and unstable floor. The body of the victim ... was later found in this area. Firefighters also entered the second floor of the house and found only smoke damage. They did not hear any smoke detector alarms.

"Several hours later, Officer Gerald Allain of the Plymouth police department questioned the defendant. The defendant stated that the victim smoked cigarettes and that he recalled the smoke alarms going off. He stated that the thick smoke forced him to his knees [and that] he took the children to the porch roof.

"On November 19, 1994, the defendant gave a signed, written statement to the police. He indicated that the victim slept on the couch because their marriage was `on the rocks.' That same day, the defendant told the victim's uncle, James Castiola, that he knew what had happened. He stated that the victim had come home, and had lain down on the couch, [near] approximately fifty videotapes. While on the couch, the victim had lit a cigarette and had fallen asleep. The defendant told Castiola that the fire had been accelerated by the videotapes, which cannot be put out when they catch fire.

"State Trooper Kevin McGurk was assigned to determine the cause and origin of the fire. He examined the Wargo home the following morning and determined that the fire originated in the den. McGurk discovered a pour pattern leading up to the area of origin, which indicated that an accelerant had been used. On the basis of his observations, McGurk concluded that the fire had been intentionally set. Other officers executed a search warrant on the Wargo home and retrieved an empty bottle of bleach from the basement and a can of acetone from the storage shed. Joseph Cristino, a forensic analysis engineer, examined the two smoke detectors retrieved from the Wargo home. [Cristino found that it was `highly improbable' that the first floor smoke detector was working at the time of the fire and that, had the battery been connected to the second floor detector, there was a high probability that it would have worked at the time of the fire.]

"A notebook also was seized from the defendant's bedroom dresser. The parties stipulated that the notes contained therein were written in the defendant's handwriting. The defendant was a member of the fire brigade at work and had received training in chemical fires and hazardous materials. The defendant was familiar with spontaneous combustion caused by the combination of alkalies and acids. The defendant admitted writing various phrases in the notebook, such as `lock box in shed,' `tool box,' 'acetone,' 'alcohol clorox,' 'alm foil,' `dry run,' `rope kds drs,' 'straps,' 'pillow,' 'oil in can,' `rid of stuff,' 'glvs,' 'hat,' 'shirt,' 'cigs,' and `ldr.' The defendant stated that these abbreviations could have been a camping list, but that he did not know why he wrote these abbreviations." State v. Wargo, supra, 53 Conn. App. 750-52. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly allowed the state to question Malka Shah, the state's associate medical examiner, about causes of death that often result in injuries only to the skin. We disagree.

The following additional facts are relevant to our resolution of this claim. On direct examination, Shah testified about the results of the autopsy that she had performed on the victim. Shah explained that the victim's body had been burned beyond recognition, and that the victim could be identified only by reference to her dental records. Shah further stated that the victim's body was so badly charred that she was unable to conduct an examination of the victim's skin. Shah, however, indicated that she was able to examine the victim's internal organs, including her lungs. Shah stated that, on the basis of her examination of those organs, the victim "definitely" had died prior to the fire.⁷ Moreover, although Shah testified that she could not determine either the cause of the victim's death or the manner in which she had died, Shah's examination of the victim's internal organs revealed that the victim had not died of natural causes.

Thereafter, the state queried Shah about whether there are any traumatic causes of death that commonly manifest injuries only on the skin. Shah responded in the affirmative, and the state then asked Shah to enumerate those causes of death. The defendant objected to the question, and the trial court excused the jury. On voir dire examination outside the presence of the jury, Shah testified that "many ... asphyxial deaths... drug overdose deaths ... [and deaths by] electrocution" manifest injuries "only on the skin."⁸ At the conclusion of Shah's voir dire testimony, the defendant sought to have the state barred from presenting such testimony to the jury. Specifically, the defendant argued that, because Shah could not determine the victim's cause of death, her testimony regarding these potential causes of death was irrelevant, speculative and highly prejudicial. The trial court overruled the defendant's objection, concluding that the testimony was relevant to explain Shah's inability to pinpoint the victim's cause of death. The trial court also concluded that any possible prejudice to the defendant stemming from Shah's testimony could be mitigated on cross-examination, especially in view of Shah's testimony that she could not determine the cause of the victim's death....