State v. Westberry

• Decision Date: 19 March 2002
• Docket Number: (AC 21734)
• Citation: 792 A.2d 154,68 Conn. App. 622
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. TROY WESTBERRY

68 Conn. App. 622

792 A.2d 154

STATE OF CONNECTICUT v. TROY WESTBERRY

(AC 21734)

Appellate Court of Connecticut.

Argued January 10, 2002.

Officially released March 19, 2002.

Foti, Schaller and Flynn, JS. Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Vicki Melchiorre, assistant state's attorney, for the appellee (state).

Opinion

FOTI, J.

The defendant, Troy Westberry, appeals from the judgment of conviction, rendered following a jury trial, of the crime of murder in violation of General Statutes § 53a-54a.¹ On appeal, the defendant claims that the court (1) improperly admitted into evidence certain testimony under the spontaneous utterance exception to the rule against hearsay and (2) misled and confused the jury when it instructed the jury regarding the essential elements of intent and proximate cause. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The events giving rise to this conviction were the culmination of a period of animosity between two street groups in Hartford. By the spring of 1999, ill will existed between a group of individuals that included the defendant and Jesse Pope, and another group of individuals that included Gerald Jenkins, Dwayne Stewart and the victim, Anthony Bennefield. That hostility manifested itself in several violent altercations between members of the two groups prior to the events underlying this appeal.

Sometime near the end of April, 1999, the defendant gave money to Pope and asked him to rent a car for him. Pope thereafter asked an acquaintance, Kimberly Sarafopolous, to rent the car under her name. She complied with Pope's request. In the subsequent days, Sarafopolous, at Pope's request and with the use of money he had given to her, made several exchanges for different cars. On each occasion, Pope delivered the rental car to the defendant. On May 4, 1999, Sarafopolous rented a gold colored Chevrolet Monte Carlo. On May 5, 1999, the defendant used the Monte Carlo to take his girlfriend to and from school.

On May 5, 1999, Pope was driving down Albany Avenue in Hartford when Jenkins drove up behind him in a white Chevrolet Lumina. Jenkins drove alongside Pope's car and began shooting at him. Pope tried to run Jenkins' car off the road, but was not able to do so. Jenkins fired yet another shot in Pope's direction before Pope drove away.

Later that night, Jenkins, Stewart and the victim celebrated the victim's birthday at a local nightclub located on Albany Avenue. At some point, the victim went outside and fell asleep in Jenkins' car, which was parked in front of the club. At around 1:30 a.m., Stewart, along with three other men, got into Jenkins' Lumina. Stewart sat in the driver's seat, the victim sat in the passenger's seat and the other three men sat in the rear passenger seats. Shortly after driving away from the club, Stewart pulled over to the side of the road on Lenox Street, and several of the vehicle's occupants smoked marijuana.

At that time, the defendant was operating the gold Monte Carlo on Lenox Street. He was the vehicle's sole occupant. He pulled very closely along the driver's side of the Lumina and fired four shots in its direction. The victim sustained fatal injuries. Two bullets penetrated his skull, and he also sustained two bullet wounds to his right hand. Thereafter, the defendant drove farther along Lenox Street and turned his headlamps on when he reached a nearby stoplight. He then turned onto Albany Avenue and continued to drive away from the scene of the shooting. Stewart and the other men in the Lumina realized that the victim, who had been asleep prior to the shooting, had been shot. After one of the men summoned help, police and emergency medical personnel arrived on the scene a short time later.

I

The defendant first claims that the court improperly admitted into evidence certain hearsay testimony under the spontaneous utterance exception to the hearsay rule. We disagree. The following additional facts are necessary for our resolution of this claim. During the state's examination of Stewart, the court permitted the state to introduce evidence about another shooting incident that had occurred earlier in the evening on May 5, 1999. Stewart testified that, at around 8 p.m., he was standing in front of the nightclub located on Albany Avenue and saw the defendant, operating the gold Monte Carlo, drive past him and turn right onto Deerfield Street, a side street near the club. Stewart testified that, at that same time, he saw the victim walking along Deerfield Street. He further testified that he had heard the sound of two gunshots after the defendant turned onto Deerfield Street and that the victim "hit the ground" at that time.

Stewart recalled that, after the defendant drove away, the victim approached him. Stewart testified as to the victim's emotional state at that time; the victim was scared and shocked and his eyes were wide open. Stewart then stated that the victim told him that the defendant had fired the shots and that he was unsure as to the direction in which the defendant had fired his gun.²

The court admitted into evidence the testimony as to what the victim told Stewart about the shooting over the defendant's timely objection. The court ruled that the statement was a spontaneous utterance and thereby constituted an exception to the rule against hearsay. The defendant sought to exclude the testimony on the ground that the declarant, the victim, was not in a position to observe accurately what he related to Stewart. The defendant argued that Stewart's testimony regarding the shooting did not establish that the victim was able to observe the defendant shoot at him and that, given the victim's unavailability, the state had failed to prove that the victim accurately observed the shooting.

We review the court's evidentiary ruling under an abuse of discretion standard. "[T]he trial judge must determine whether an utterance qualifies under this exception to the hearsay rule, and that decision will not be disturbed on appeal unless it constitutes an unreasonable exercise of discretion. . . . All material facts should be weighed by the trial judge when determining whether a statement qualifies as a spontaneous utterance." (Internal quotation marks omitted.) State v. Torres, 58 Conn. App. 524, 530, 754 A.2d 200 (2000); see also State v. Kelly, 256 Conn. 23, 42, 770 A.2d 908 (2001).

The spontaneous utterance exception permits an otherwise inadmissible hearsay statement to be admitted into evidence to prove the truth of the matter asserted therein if the movant can satisfy the following four conditions: "(1) the declaration follows some startling occurrence, (2) the declaration refers to the occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant." (Internal quotation marks omitted.) State v. Torres, supra, 58 Conn. App. 530; see also Conn. Code Evid. § 8-3 (2) (exception applies to "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition").

Our Supreme Court recognized the spontaneous utterance exception in Perry v. Haritos, 100 Conn. 476, 124 A. 44 (1924). The Supreme Court explained: "The element of time, the circumstances and manner of the [event], the mental and physical condition of the declarant, the shock produced, the nature of the utterance, whether against the interest of the declarant or not, or made in response to question, or involuntary, and any other material facts in the surrounding circumstances, are to be weighed in ascertaining the basic conclusion whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation. The principle rests upon the common experience that utterances made under such circumstances are void of self-interest and are in the same category as exclamations of pain. The probability of falsehood is so remote as to be negligible." Id., 484-85.

As our review of the principles that underlie the exception demonstrates, the application of the exception entails a uniquely fact bound inquiry. The overarching consideration is whether the declarant made the statement before he or she had the opportunity to undertake a reasoned reflection of the event described therein. State v. Lomax, 60 Conn. App. 602, 609, 760 A.2d 957, cert. denied, 255 Conn. 920, 763 A.2d 1042 (2000).

As we noted previously, in the present case the defendant claims that the state failed to prove that the victim had the opportunity to observe the defendant discharge his firearm.³ That the declarant must have firsthand knowledge of the occurrence is firmly rooted in the exception. As our Supreme Court has explained, the declaration must have been made "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...." (Emphasis added.) Perry v. Haritos, supra, 100 Conn. 484.

Our Supreme Court recently had occasion to consider a similar issue. The Supreme Court stated that "although circumstantial evidence of the declarant's personal perception must not be so scanty as to forfeit the guarantees of trustworthiness which form the hallmark of all exceptions to the hearsay rule ... the state is not required to establish such personal observation by the declarant beyond any possible doubt. Rather, the question for the trial court is...