State v. Vega , 181 Conn. App. 456 ( 2018 )

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STATE OF CONNECTICUT v. MIGUEL A. VEGA
(AC 40082)
Lavine, Alvord and Bear, Js.
Syllabus
Convicted of the crimes of murder, home invasion, burglary in the first
degree, attempt to commit murder, attempt to commit assault in the
first degree and carrying a pistol without a permit, the defendant
appealed. The defendant and another man had broken into the apartment
of E after E and several of his friends, including P and K, returned to
the apartment from a bar where the defendant had punched E and
fought with P. The defendant fatally shot P and, when E fled the apart-
ment, chased after him onto the streets where E was shot. A police
officer who had arrived at the scene overheard K, who was emotional
and upset, speaking on a phone, during which she referred to the defen-
dant by his nickname and stated that the defendant was one of the
shooters. The officer questioned K after the phone call, and K again
identified the defendant as one of the shooters. E told another police
officer who rode with E in an ambulance to a hospital that he had been
at the bar with the person who shot him, whom E identified as ‘‘Mike.’’
The defendant’s first trial ended in a hung jury. Prior to the start of the
defendant’s second trial, E wrote in a letter that was delivered to the
trial court that he did not want to testify and had been pressured by
the police to point out the defendant as the person who had shot him. The
trial court excluded the letter from evidence, ruling that the statements
in it were not against E’s penal interest under the applicable provision
(§ 8-6 [4]) of the Connecticut Code of Evidence. The trial court admitted
into evidence the statements made by K and E under the spontaneous
utterance exception to the hearsay rule in the applicable provision (§ 8-
3 [2]) of the Connecticut Code of Evidence. Held:
1. The trial court did not abuse its discretion in admitting into evidence as
spontaneous utterances under § 8-3 (2) certain statements made by K
and E: the record supported the court’s finding that the statements the
police officer overheard K make during her phone conversation and
that she made to the officer after that conversation occurred under
circumstances that negated the opportunity for deliberation and fabrica-
tion, as K made the statements on the phone and to the officer while
she was near the scene of the home invasion, gunfire and shooting, and
within fifteen to thirty minutes after the shooting occurred, she was
crying and experiencing stress and shock as a result of the incident at
the apartment, there was no evidence that she had spoken to anyone
else prior to making the phone call, and the fact that her statements to
the officer were given in response to his questions was not significant,
given the circumstances under which the statements were made; more-
over, E’s statements to the police were made within an hour after he
ran from the apartment and while he was in shock or under great stress
and struggling to survive after having been shot.
2. The trial court properly sustained the state’s objection to the admission
of E’s letter into evidence, as the statements in the letter were not
admissible under § 8-6 (4) because they were not against E’s penal
interest, as claimed by the defendant; the statements in the letter were
in the nature of a recantation of E’s testimony in the defendant’s first
trial and seemingly were not intended as an admission by E of perjury,
as the letter accused the police of pressuring and threatening E, and
stated that E did not know who the offender was and had not seen the
offender’s face.
3. The defendant could not prevail on his unpreserved claim that the trial
court violated his constitutional right to confrontation when it admitted
into evidence the statements that the police officer overheard K make
during her phone conversation and the statements that K made to the
officer after the phone conversation: although the statements that K
made during her phone conversation were not testimonial in nature, as
they were not made directly to the officer or in response to his questions,
there was no evidence that she intended for him to hear the statements,
which were made to a private person while she was under the stress
of the incident at the apartment and were not the type of statements
that a declarant would expect to be used in a later prosecution, and
the admission of the statements that K made directly to the officer,
which were testimonial in nature, violated the defendant’s right to con-
frontation because the defendant had no prior opportunity to cross-
examine K regarding those statements; nevertheless, the admission of
those statements was harmless beyond a reasonable doubt, as the state
had presented sufficient independent evidence for the jury reasonably
to identify the defendant as the shooter of P and one of the shooters
of E.
Argued December 4, 2017—officially released May 1, 2018
Procedural History
Substitute information charging the defendant with
the crimes of murder, felony murder, home invasion,
burglary in the first degree, attempt to commit murder,
attempt to commit assault in the first degree and car-
rying a pistol without a permit, brought to the Superior
Court in the judicial district of New London, geographi-
cal area number ten, and tried to the jury before Jong-
bloed, J.; verdict and judgment of guilty; thereafter, the
court vacated the verdict as to the charge of felony
murder, and the defendant appealed. Affirmed.
Lisa A. Steele, assigned counsel, for the appellant
(defendant).
Michael L. Regan, state’s attorney, for the appellee
(state).
Opinion
BEAR, J. The defendant, Miguel A. Vega, appeals from
the judgment of conviction, rendered after a jury trial,
of the following six offenses: (1) murder in violation
of General Statutes § 53a-54a (a); (2) home invasion in
violation of General Statutes § 53a-100aa (a) (2); (3)
burglary in the first degree in violation of General Stat-
utes § 53a-101 (a) (3); (4) attempt to commit murder
in violation of General Statutes §§ 53a-49 (a) (2) and
53a-54a; (5) attempt to commit assault in the first degree
in violation of General Statutes §§ 53a-49 (a) (2) and
53-59 (a) (5); and (6) carrying a pistol without a permit
in violation of General Statutes § 29-35 (a). On appeal,
the defendant claims that the trial court (1) abused
its discretion by admitting out-of-court statements as
spontaneous utterances pursuant to § 8-3 (2) of the
Connecticut Code of Evidence; (2) abused its discretion
by excluding a letter that contained statements that
were against the author’s penal interest; and (3) improp-
erly admitted hearsay statements from an unavailable
witness in violation of his sixth and fourteenth amend-
ment right to confrontation. We affirm the judgment of
the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. On the night of March 2, 2010, a group of people
gathered in an apartment located at 53 Prest Street in
New London, a second floor apartment that belonged
to Michael Ellis, Sr. (Ellis, Sr.), who resided there with
Lisa DeMusis (L. DeMusis), Nicholas DeMusis (N.
DeMusis), Michael Ellis, Jr. (Ellis), and Altareika Par-
rish. On March 2, present in the apartment in addition to
those who resided there, were Rahmel Perry, Shariymah
James, Alice Phillips, Jessica Winslow and Keyireh
Kirkwood.
Between midnight and 12:30 a.m. on the morning of
March 3, 2010, Ellis, Perry, James, Phillips, Winslow,
and Kirkwood left the apartment and went to a bar in
New London called The Galley. While at the bar, Krystal
Taylor and Tamika ‘‘Missy’’ Guilbert joined the group.
Also present at the bar were the defendant and a few
of his associates. Shortly after Ellis arrived at the bar,
he was standing next to Kirkwood. Kirkwood and the
defendant have a child together, but she is also a friend
of Ellis and many of his associates. Soon after Ellis
began standing next to Kirkwood, the defendant
motioned toward Ellis to direct him to step away from
Kirkwood. When Ellis did not move away from Kirk-
wood, the defendant approached Ellis and punched him
in the face. A fight then broke out in the bar between
the two groups, during which Perry began punching
and kicking the defendant. That fight was broken up
and both groups exited the bar. The defendant was
undoubtedly on the losing end of the fight. Outside of
the bar, another altercation ensued between the two
groups, which was quickly broken up.
After both groups left the bar, Ellis, Perry, Parrish,
Taylor, Kirkwood, Phillips, James, and Guilbert
returned to the Prest Street apartment at approximately
1:30 a.m. Ellis, Sr., L. DeMusis, N. DeMusis, and Shaun-
tay Ellis were also present at the apartment when the
group returned from the bar. At approximately 2 a.m.,
the group heard a commotion at the back door, through
which two men entered the apartment. They were
armed, one with a revolver and the other with an auto-
matic or semiautomatic handgun. Both men were
dressed in all black clothing and had their heads and
faces covered.
The defendant, who was the first intruder into the
apartment, proceeded directly to the living room where
Ellis and Perry were located. He pulled down his mask
and ordered everyone in the room to get on the floor.
Ellis and Taylor were standing close to a window in the
living room. Upon hearing the men enter the apartment,
Taylor jumped out the window. The defendant then
fired toward the window, in Ellis’ direction, but did not
hit Ellis. He then fired two shots at Perry, who was on
the couch. Both shots struck Perry.
Meanwhile, Ellis ran out of the living room and
toward the back door where the men had entered. He
briefly scuffled with the second intruder, who appeared
to reach for a gun. As Ellis was running down the stairs,
a shot was fired at him, but did not hit him. Ellis pro-
ceeded to run from Prest Street to Blackhall Court. The
intruders left the apartment and chased Ellis, firing
approximately four shots. Ellis was struck twice, once
in the thigh and once in the back. Ellis proceeded to
run onto Blackhall Street where he called 911. While
he was on Blackhall Street, Ellis flagged down a police
officer, Justin Clachrie, who was en route to the apart-
ment at 53 Prest Street. Within minutes, an emergency
medical services vehicle arrived and transported Ellis
to Lawrence + Memorial Hospital (hospital).
At the apartment, Phillips called 911 and stated that
Perry had been shot. Those who remained at the apart-
ment then carried Perry to Shauntay Ellis’ vehicle.
Shauntay Ellis and Phillips drove Perry to the hospital
in Shauntay Ellis’ vehicle. Perry was unconscious when
he arrived at the hospital, and medical personnel made
efforts to resuscitate him. Those efforts were unsuc-
cessful, however, and Perry was pronounced dead. An
autopsy revealed that a gunshot wound caused Perry’s
death, and the medical examiner ruled his death a homi-
cide. Although Ellis’ injuries were life-threatening, med-
ical personnel were able to stabilize him in the
emergency department. He remained in the hospital for
approximately one week and then was released.
After the police arrived at the Prest Street apartment,
several people who were present during the shooting
identified the defendant as one of the shooters. The
police also learned of the fight between the defendant,
Ellis, and Perry that had occurred at the bar earlier on
March 3. As a result, various law enforcement agencies
immediately made attempts to locate the defendant,
and the police obtained a warrant for his arrest. The
defendant was finally located approximately three and
one-half months later on June 21, 2010, in Gwinnett
County, Georgia.
In July, 2010, Detective Sergeant George Potts and
Detective Richard Curcuro travelled to Gwinnett
County to speak with the defendant about the events
that had occurred on March 3, 2010. During this inter-
view, the defendant conceded that he was involved in
a fight with Ellis and Perry at the bar, but denied that
he was involved in the subsequent occurrence at the
Prest Street apartment, on Blackhall Court, and on
Blackhall Street. The defendant gave the detectives an
alibi, which the investigators were not able to verify.
When asked why he fled from Connecticut, the defen-
dant answered that he saw his photograph on the news
and was concerned that if he were found in Connecticut,
he would be arrested for a parole violation that had
occurred in New York.
On January 29, 2015, the defendant was charged by
way of an amended information with the following eight
offenses: (1) murder in violation of § 53a-54a (a); (2)
felony murder in violation of General Statutes § 53a-
54c; (3) home invasion in violation of § 53a-100aa (a)
(1); (4) home invasion in violation of § 53a-100aa (a)
(2); (5) burglary in the first degree in violation of § 53a-
101 (a) (3); (6) attempt to commit murder in violation of
§§ 53a-49 (a) (2) and 53a-54a (a); (7) attempt to commit
assault in the first degree in violation of §§ 53a-49 (a)
(2) and 53a-59 (a) (5); and (8) carrying a pistol without
a permit in violation of § 29-35 (a). A trial commenced
in January, 2015 and continued into February, 2015.
The trial ended in a hung jury and the court declared
a mistrial.
In January, 2016, a second trial commenced. In a
substitute information, the defendant was charged with
the following offenses: (1) murder in violation of § 53a-
54a (a); (2) felony murder in violation of § 53a-54c; (3)
home invasion in violation of § 53a-100aa (a) (2); (4)
burglary in the first degree in violation of § 53a-101 (a)
(3); (5) attempt to commit murder in violation of §§ 53s-
49 (a) (2) and 53a-54a; (6) attempt to commit assault
in the first degree in violation of §§ 53a-49 (a) (2) and
53-59 (a) (5); and (7) carrying a pistol without a permit
in violation of § 29-35 (a). The jury found the defendant
guilty of all of those offenses.1 The court sentenced the
defendant to a total effective term of seventy-five years
of imprisonment. This appeal followed. Additional facts
will be set forth as necessary.
I
EVIDENTIARY CLAIMS
We first address the defendant’s evidentiary claims.
On appeal, the defendant argues that the court abused
its discretion in admitting into evidence certain out-of-
court statements as spontaneous utterances pursuant
to § 8-3 (2) of the Connecticut Code of Evidence. Addi-
tionally, the defendant argues that the court abused its
discretion in excluding a letter that Ellis allegedly wrote
and delivered to the court regarding his refusal to testify
at the second trial, which the defendant argues con-
tained statements against Ellis’ penal interest under § 8-
6 (4) of the Connecticut Code of Evidence. We disagree.
We begin by setting forth the relevant standard of
review. ‘‘As a general rule, hearsay is inadmissible
unless an exception from the Code of Evidence, the
General Statutes or the rules of practice applies.’’ State
v. Miller, 121 Conn. App. 775, 779, 998 A.2d 170, cert.
denied, 298 Conn. 902, 3 A.3d 72 (2010). ‘‘To the extent
a trial court’s admission of evidence is based on an
interpretation of the [Connecticut] Code of Evidence,
our standard of review is plenary. For example, whether
a challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. They require determinations about which rea-
sonable minds may not differ; there is no judgment call
by the trial court . . . . We review the trial court’s
decision to admit evidence, if premised on a correct
view of the law, however, for an abuse of discretion.’’
(Internal quotation marks omitted.) Id., 780.
A
Statements Admitted as Spontaneous Utterances
The defendant argues that the court abused its discre-
tion in admitting the following statements as spontane-
ous utterances: (1) statements that Kirkwood made
during a telephone call that Officer Charles Flynn over-
heard, identifying the defendant as one of the shooters;
(2) statements that Kirkwood directly made to Flynn
that were introduced through Taylor, identifying the
defendant as one of the shooters; and (3) statements
that Ellis made on Blackhall Street, in the ambulance,
and at the hospital to Clachrie, a responding officer,
identifying the defendant as one of the shooters. The
state responds that each statement was properly admit-
ted as a spontaneous utterance. We agree with the state.
Our code of evidence defines a spontaneous utter-
ance as ‘‘[a] statement relating to a startling event or
condition made while the declarant was under the
excitement caused by the event or condition.’’ Conn.
Code Evid. § 8-3 (2). ‘‘[T]he commentary to § 8-3 (2)
provides: The hearsay exception for spontaneous utter-
ances is well established. . . . Although [§] 8-3 (2)
states the exception in terms different from that of the
assumes incorporation of the case law principles under-
lying the exception.
‘‘The event or condition must be sufficiently startling,
so as to produce nervous excitement in the declarant
and render [the declarant’s] utterances spontaneous
and unreflective. . . .
‘‘The excited utterance exception is well established.
Hearsay statements, otherwise inadmissible, may be
admitted into evidence to prove the truth of the matter
asserted therein when (1) the declaration follows a
startling occurrence, (2) the declaration refers to that
occurrence, (3) the declarant observed the occurrence,
and (4) the declaration is made under circumstances
that negate the opportunity for deliberation and fabrica-
tion by the declarant. . . .
‘‘The requirement that a spontaneous utterance be
made under such circumstances as to [negate] the
opportunity for deliberation and fabrication by the
declarant . . . does not preclude the admission of
statements made after a startling occurrence as long
as the statement is made under the stress of that occur-
rence. . . . While [a] short time between the incident
and the statement is important, it is not dispositive. . . .
‘‘Whether an utterance is spontaneous and made
under such circumstances that would preclude contriv-
ance and misrepresentation is a preliminary question
of fact to be decided by the trial judge. . . . The trial
court has broad discretion in making that factual deter-
mination, which will not be disturbed on appeal absent
an unreasonable exercise of discretion.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Kirby, 280 Conn. 361, 373–74, 908 A.2d 506 (2006). More-
over, a statement made in response to a question does
not preclude its admission as a spontaneous utterance.
Id., 376.
1
Kirkwood’s Statements
The following additional facts, which the jury reason-
ably could have found, and procedural history are rele-
vant to the resolution of this claim. The state presented
evidence that following the shooting, everyone who
was present in the Prest Street apartment ran outside.
Shauntay Ellis and Phillips drove Perry to the hospital,
while the others remained outside of the apartment on
Prest Street. Flynn was responding to the occurrence
when he saw a male running in a direction that was
taking him away from Prest Street. Flynn stopped this
individual, obtained his identification, and determined
that he was not related to the Prest Street shooting.
Flynn then arrived at the Prest Street apartment and
approached a vehicle that was attempting to leave the
crime scene. Inside the vehicle were Taylor, Parrish,
Guilbert, and James. Flynn briefly spoke to the individu-
als in the vehicle and learned that they were heading
to the hospital to check on Perry.
Flynn observed Kirkwood on Prest Street speaking
on a telephone to someone she referred to as ‘‘[m]om.’’
Flynn walked toward where Kirkwood was standing so
he would be able to speak to Kirkwood when she fin-
ished her telephone call. While speaking on the tele-
phone, Kirkwood was emotional and visibly upset, and
her speech had a staccato sound. During the telephone
call, Kirkwood stated that ‘‘Mikey shot them’’ and that
he had entered through the back of the apartment. Flynn
overheard Kirkwood’s exclamations that ‘‘Mikey’’ was
one of the shooters.2 Kirkwood then stated that ‘‘the
cop [is] here,’’ and, ‘‘I’m going to tell them that he did it.’’
After Kirkwood’s telephone call, Flynn began speak-
ing directly to Kirkwood. Although Kirkwood’s
responses were ‘‘more guarded,’’ she was visibly upset
while talking to Flynn. During this conversation, Kirk-
wood reiterated the statements from her telephone call,
identifying the defendant as one of the shooters. Taylor
had returned to the scene after hearing sirens. Taylor
was present for Kirkwood’s conversation with Flynn,
and overheard her statements identifying the defendant
as one of the shooters. On multiple occasions during
this conversation, Kirkwood apologized to Taylor.
At the second trial, Flynn testified outside the pres-
ence of the jury regarding what he overheard Kirkwood
say on the telephone to the person she referred to
as ‘‘[m]om.’’ The defendant objected, arguing that the
statements were not excited utterances because they
did not satisfy the fourth factor set out in Kirby, that
‘‘the declaration is made under circumstances that
negate the opportunity for deliberation and fabrication
by the declarant.’’ (Internal quotation marks omitted.)
State v. Kirby, supra, 280 Conn. 374. Specifically, the
defendant argued that the statements Kirkwood made
over the telephone were not spontaneous utterances
because Kirkwood ‘‘wasn’t screaming. She wasn’t wai-
ling. She wasn’t moaning. She was talking to someone;
clearly hearsay.’’
Following the state’s proffer, the court found that
‘‘the declarant was upset, very excited, very emotional,
crying on the phone and had a sort of a staccato-type
conversation or outburst, and it sounded to the court
as though it does satisfy what’s required for a spontane-
ous or excited utterance . . . .’’ Flynn then testified
before the jury regarding the statements that he over-
heard Kirkwood make during her telephone call.
Taylor also testified regarding the statements that
Kirkwood made directly to Flynn.3 The defendant
objected and again argued that these statements did
not fall within the spontaneous utterance exception,
and in support of his assertion cited the fact that Flynn
was questioning Kirkwood. The court disagreed and
allowed Taylor to testify regarding Kirkwood’s state-
ments to Flynn under the spontaneous utterance
exception.
The defendant argues that the court abused its discre-
tion in admitting Kirkwood’s statements as spontaneous
utterances under § 8-3 (2) of the Connecticut Code of
Evidence. The defendant maintains that several minutes
had passed from the time of the shooting to the time
of Kirkwood’s statements over the telephone and to
Flynn, and that as a result, Kirkwood had time to delib-
erate and think about the statements she was going to
make. We disagree that the court abused its discretion
in admitting Kirkwood’s statements.
We first address the statements that Flynn heard Kirk-
wood make over the telephone to someone she referred
to as ‘‘[m]om.’’ The parties did not dispute that the
statements were made following a startling occurrence,
i.e., the home invasion, the subsequent gunfire, and the
shooting of Perry, that the statements referred to the
startling occurrence, or that Kirkwood observed the
occurrence. Therefore, the court had to determine only
whether Kirkwood made the statements ‘‘under circum-
stances that negate the opportunity for deliberation and
fabrication . . . .’’ (Internal quotation marks omitted.)
State v. Kirby, supra, 280 Conn. 374.
We conclude that the court did not abuse its discre-
tion in admitting the statements that Kirkwood made
over the telephone as spontaneous utterances. The fact
that Kirkwood was crying and had a ‘‘staccato-type
conversation or outburst’’ supports the court’s finding
that Kirkwood was still experiencing stress and shock
as a result of the occurrence. Although several minutes
had passed between the startling occurrence and when
Flynn heard Kirkwood make these statements, our
Supreme Court has held that ‘‘[w]hile [a] short time
between the incident and the statement is important,
it is not dispositive.’’ (Emphasis added; internal quota-
tion marks omitted.) State v. Kirby, supra, 280 Conn.
374; see also State v. Stange, 212 Conn. 612, 618, 563
A.2d 681 (1989) (‘‘A majority of 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 accept-
able time interval cannot be specified. Each case must
be decided on its particular circumstances.’’). In Stange,
the trial court admitted statements that the declarant
made ‘‘approximately fifteen to thirty minutes after a
[startling occurrence.’’ Id., 620.
Our Supreme Court’s decision in State v. Slater, 285
Conn. 162, 939 A.2d 1105, cert. denied, 553 U.S. 1085,
128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008), informs our
analysis of this issue. In Slater, two bystanders heard
the victim screaming and crying while on the street that
someone had tried to rape her. Id., 166. The victim,
while in a ‘‘disoriented and hysterical state,’’ told the
bystanders ‘‘that a black male with a big knife had raped
her.’’ (Internal quotation marks omitted.) Id. The two
bystanders testified regarding the victim’s statements
to them. Id., 168.
On appeal, our Supreme Court held that ‘‘the first
three requirements [for a spontaneous utterance]
undoubtedly were satisfied.’’ Id., 179. The court con-
cluded that the trial court had not abused its discretion
in admitting the statements as spontaneous utterances
because ‘‘[w]ith respect to the fourth factor, although
the amount of time that lapsed between the incident
and [the victim’s] statement is unclear, the victim still
visibly was shaken and appeared to be making the state-
ment as a cry for help. . . . The victim’s emotional
state, therefore, indicates that her statement was made
under circumstances that had negated the opportunity
for deliberation or fabrication.’’ (Citations omitted;
internal quotation marks omitted.) Id., 179–80.
Here, as in Slater, there is no doubt that the first
three requirements for a spontaneous utterance were
established. Additionally, when Kirkwood made the
statements, she was visibly upset, crying, and speaking
with a ‘‘staccato-type conversation or outburst . . . .’’
Despite the fact that approximately fifteen to thirty
minutes had passed from the time of the startling occur-
rence to the time Kirkwood made the statements over
the telephone, Kirkwood’s emotional state at the time
she made those statements demonstrated that she was
still experiencing shock or stress because of the home
invasion, gunfire, and shooting that had just occurred
in the Prest Street apartment.
The defendant relies on this court’s decision in State
v. Gregory C., 94 Conn. App. 759, 893 A.2d 912 (2006),
to support his position that the court abused its discre-
tion in admitting the statements that Kirkwood made
over the telephone. In Gregory C., the trial court admit-
ted a rape victim’s hearsay statements as spontaneous
utterances. Id., 770. The statements were introduced
through a police officer, who had interviewed the defen-
dant the day after the rape had occurred. Id., 769–70.
Between the time of the rape and the time that the
victim made the statements to the police officer, the
victim contacted a friend to ‘‘talk to her about the defen-
dant.’’ Id., 762. The victim and her friend then went to
a courthouse so the victim could obtain a restraining
order against the defendant. Id., 769. After that, at
approximately 2 p.m. on the day following the rape, the
victim went to the police station and detailed to the
officer the facts surrounding the rape. Id., 769–70.
At trial, the state asked the interviewing police officer
what the victim specifically told him about the rape
that occurred the night before. Id., 770. The court over-
ruled the defendant’s objection and allowed the officer
to testify regarding the victim’s statements under the
spontaneous utterance exception. Id. On appeal, this
court concluded that the trial court abused its discretion
in admitting the victim’s statements to the police officer
as spontaneous utterances. Id., 772. In so doing, this
court stated that ‘‘more than fifteen hours had passed
between the time of the alleged sexual assault and the
victim’s statement to [the police officer]. Further, the
victim discussed her alleged assault at length with [her
friend] prior to giving her statement. The victim thus
had considerable time and opportunity to collect her
thoughts and reflect on what had occurred the night
before.’’ Id., 771–72.
The present case is distinguishable from Gregory C.
Here, the evidence established that, at most, fifteen to
thirty minutes passed between the time of the startling
occurrence and the time Flynn overheard Kirkwood
make the statements. Also, there was no evidence in
the record that Kirkwood had spoken to anyone else
prior to making the telephone call to the person she
referred to as ‘‘[m]om,’’ unlike in Gregory C., where the
victim called her friend following her rape, and then
fifteen hours later spoke to a police officer. State v.
Gregory C., supra, 94 Conn. App. 762, 769–70. Here, on
the other hand, a short time after the shooting, Kirk-
wood made a telephone call to ‘‘[m]om’’ and Flynn
overheard the statements that she made during that
telephone call. Accordingly, the defendant’s reliance on
Gregory C. is misplaced. We conclude that the court
did not abuse its discretion in admitting the statements
that Kirkwood made over the telephone as spontaneous
or excited utterances pursuant to § 8-3 (2) of the Con-
necticut Code of Evidence.
We next address the statements that Kirkwood
directly made to Flynn, which Taylor overheard. As
with the statements that Kirkwood made over the tele-
phone, the defendant’s sole evidentiary challenge to the
admission of Kirkwood’s statements to Flynn revolves
around whether Kirkwood made the statements ‘‘under
circumstances that negate the opportunity for delibera-
tion and fabrication . . . .’’ (Internal quotation marks
omitted.) State v. Kirby, supra, 280 Conn. 374. Specifi-
cally, the defendant argues that because of the amount
of time that had elapsed, and because the statements
were made during an ‘‘interview,’’ the court abused its
discretion in admitting the statements as spontaneous
utterances. Although this issue presents a closer ques-
tion as to whether the statements fall within the sponta-
neous utterance exception, we conclude that the court
did not abuse its discretion in admitting these state-
ments as spontaneous utterances.
On the basis of the evidence presented, it was reason-
able for the court to conclude that the statements that
Kirkwood made directly to Flynn were spontaneous
utterances. Taylor’s testimony outside the presence of
the jury established that Kirkwood was crying and
screaming when she made the statements to Flynn.
The court reasoned that ‘‘according to the testimony,
[Kirkwood’s] demeanor as described by [Taylor] was
that [Kirkwood] was crying and screaming, and
although [Taylor] said while not at the top of [Kirk-
wood’s] lungs, [Kirkwood] certainly was crying and
screaming, clearly shocked and distressed, having just
minutes before witnessed a traumatic break-in and mul-
tiple shooting.’’
This court’s decision in State v. Guess, 44 Conn. App.
790, 692 A.2d 849 (1997), aff’d, 244 Conn. 761, 715 A.2d
643 (1998), guides our resolution of this issue. In Guess,
the declarant was the passenger in a vehicle that was
shot at, resulting in the death of the driver. Id., 793.
About fifteen or thirty minutes after the startling occur-
rence, the declarant spoke with a police officer. Id., 802.
The conversation with the officer lasted for a period
of about fifteen minutes. Id. The police officer testified
that the declarant was ‘‘very shaken up and nervous
during the conversation and was spontaneously just
muttering out things because he was so wound up.’’
(Internal quotation marks omitted.) Id. The declarant
provided the officer with details of the occurrence, dur-
ing which time he identified the defendant as the
shooter. Id., 802–804. The trial court admitted the
declarant’s statements as spontaneous utterances. Id.,
802.
On appeal, this court concluded that the trial court
did not abuse its discretion in admitting the declarant’s
statements pursuant to the spontaneous utterance
exception. Id., 805. In reaching this conclusion, this
court cited the trial court’s reasoning for admitting the
statements, which included the following facts: that
the declarant had witnessed a shooting; the time gap
between the shooting and the statements was, at most,
one hour; the declarant was visibly upset, nervous, and
shaken up; the declarant answered the officer’s ques-
tions directly, but also provided additional information
spontaneously, which was not elicited; and the declar-
ant was still at the scene of the occurrence when he
made the statements to the officer. See id., 804. The
trial court also noted that ‘‘the fact that the information
was given in response to questions, under these circum-
stances . . . is not significant.’’ (Internal quotation
marks omitted.) Id. This court held that ‘‘[t]he trial court
properly applied the law concerning spontaneous utter-
ances to the facts of the case and properly ruled that
the testimony was admissible under the hearsay excep-
tion.’’ Id., 805.
In the present case, Kirkwood made the statements
to Flynn between fifteen and thirty minutes after wit-
nessing the occurrence. The evidence established that
Kirkwood was visibly upset, crying, and screaming. Tay-
lor also testified that Kirkwood ‘‘kept telling me she
was sorry.’’ There is no evidence in the record that
either Flynn or Taylor elicited Kirkwood’s apologies to
Taylor. Furthermore, Kirkwood made the statements
to Flynn while near the scene of the home invasion,
gunfire, and shooting, within minutes after it had
occurred. The fact that Kirkwood’s responses were
given in response to Flynn’s questions is not significant
given the circumstances described in the preceding
paragraphs. See also State v. Kirby, supra, 280 Conn.
376 (‘‘that a statement is made in response to a question
does not preclude its admission as a spontaneous utter-
ance’’). Accordingly, we conclude that the court did not
abuse its discretion in admitting the statements that
Kirkwood directly made to Flynn under the spontane-
ous utterance exception to the hearsay rule.
2
Ellis’ Statements
The following additional facts are relevant to our
resolution of this claim. The state presented evidence
that in the midst of the events at the Prest Street apart-
ment, Ellis ran out the back door of the apartment, ran
up Prest Street, then to Blackhall Court, and stopped
when he reached Blackhall Street. While Ellis was run-
ning from the apartment, he was shot at four times,
and hit twice. When Ellis stopped on Blackhall Street,
he called 911. Within minutes, Clachrie arrived on
Blackhall Street and Ellis flagged him down. Clachrie
pulled over and Ellis approached his police cruiser,
collapsing on the hood.
Clachrie exited his vehicle and began speaking to
Ellis. During this time, Ellis was moaning and yelling
in pain, and told Clachrie that he had been shot. Clachrie
lifted Ellis’ shirt and confirmed that he had been shot.
Clachrie asked Ellis if he knew who had shot him. Ellis
responded in the negative, but stated ‘‘that it was a
Puerto Rican male in black.’’ Ellis also indicated that
the shooting occurred at a house on Prest Street.
Within minutes of Clachrie’s arrival, medical person-
nel arrived and began treating Ellis’ injuries and prepar-
ing to transport Ellis to the hospital. At this time, Ellis
continued to scream and yell in pain. He vomited while
being treated on Blackhall Street and vomited again
once he was inside the ambulance. Clachrie was in the
ambulance with Ellis and attempted to ask him more
questions about the shooting. Because Clachrie could
smell alcohol on Ellis’ breath, Clachrie asked Ellis
whether he had been at a bar. Ellis responded that he
had been at The Galley earlier in the night. When Clach-
rie asked Ellis whether the person who shot him had
also been at the bar, Ellis responded in the affirmative.
It took approximately two minutes for the ambulance
to transport Ellis from Blackhall Street to the hospital.
When Ellis arrived at the hospital, he continued to
scream and yell in pain. Within minutes, Clachrie was
able to ask Ellis questions, and asked whether Ellis
knew who shot him. Ellis responded that ‘‘Mike’’ had
shot him. By this time, Clachrie had learned that the
defendant was a suspect, so he asked Ellis if the individ-
ual who had shot him had a baby with Kirkwood. Ellis
responded to that question by nodding his head up and
down, as if answering the question in the affirmative.
Soon after, Ellis was moved to the intensive care unit,
and Clachrie was unable to continue questioning him.
At trial, the defendant objected on hearsay grounds
to the admission of the statements that Ellis made to
Clachrie. The defendant argued that the statements did
not fall within the spontaneous utterance exception
because Ellis had time to think about his responses to
Clachrie’s questions, and therefore, Ellis had time to
deliberate and fabricate his statements. The trial court
disagreed and admitted the statements under the spon-
taneous utterance exception. In so doing, the court
reasoned that the statement ‘‘was made initially very
close in time to the call from dispatch, [Clachrie] testi-
fied [that the statement was made] a very short distance
away from the area. [Clachrie] responded immediately,
and the events transpired very quickly thereafter. So,
under the circumstances, [the] objection is overruled,
and the evidence may be admitted.’’
The defendant argues that the court abused its discre-
tion by admitting Ellis’ statements to Clachrie on Black-
hall Street, in the ambulance, and at the hospital. The
defendant argues that because Ellis initially told Clach-
rie that a ‘‘Puerto Rican male in black’’ had shot him,
and then later identified the defendant as the shooter,
he had time for deliberation and fabrication, and there-
fore the statement was not a spontaneous utterance.
We disagree.
Our Supreme Court’s decision in State v. Kelly, 256
Conn. 23, 770 A.2d 908 (2001), informs our resolution
of this issue. In Kelly, a teenage girl was sexually
assaulted by the defendant after he had offered to give
her a ride home. Id., 28. The assault occurred near
the victim’s home, and the victim arrived home, visibly
upset, shortly after the assault. Id., 28–29. The victim
told her father that she was upset because she had
gotten into a fight with one of her friends. Id., 29. The
victim’s sister then attempted to speak with her, but
the victim was reluctant to tell her sister about the
assault. Id. While the victim’s sister attempted to speak
to the victim, the victim was on the floor in the fetal
position and appeared frightened. Id., 41. The victim
finally told her sister about the assault, but made her
promise not to tell anyone. Id., 29. The victim told her
parents of the assault later in the evening, and went to
a hospital and to the police the following day. Id. The
court admitted the victim’s statements to her sister as
spontaneous utterances. Id., 41.
On appeal, the defendant challenged the admission
of the victim’s statements to her sister, arguing that the
statements did not fall within the spontaneous utter-
ance exception. Id., 40. Specifically, the defendant
argued that because the victim initially lied to her father
about why she was upset, and because she was reluc-
tant to tell her sister what happened, the victim had
time for reasoned reflection and fabrication of the infor-
mation she provided to her sister. Id., 42–43. Our
Supreme Court concluded that the defendant’s argu-
ment was ‘‘without merit.’’ Id., 43. In so concluding, the
court stated that ‘‘[o]nly a period of approximately ten
to fifteen minutes passed between the startling occur-
rence . . . and the victim’s disclosures to her sister.
The victim remained in an emotionally distressed state
throughout that time period. The trial court reasonably
concluded that the victim’s behavior comported with
that of an individual reacting to a severely emotional,
startling event without the time or wherewithal to fabri-
cate it.’’ Id.
In the present case, Ellis’ statements to Clachrie on
Blackhall Street, in the ambulance, and at the hospital
were made while Ellis was in shock from or under the
great stress from having been shot twice; he manifested
this by continuing to yell and moan because of the pain
he was experiencing.4 Furthermore, all of his statements
were made within one hour of his running from the
apartment after being confronted and shot at by the
defendant; being shot at several additional times out-
side of the apartment; being struck twice by bullets;
and while he was struggling to survive. Taking all of
the facts surrounding the statements into consideration,
we conclude that the court did not abuse its discretion
in admitting Ellis’ statements to Clachrie under the
spontaneous utterance exception to the hearsay rule.
B
Ellis’ Letter
The defendant’s final evidentiary claim revolves
around a letter that Ellis allegedly wrote and delivered
to the court clerk prior to the start of the second trial,
in which it was stated that he did not want to testify
at the second trial and that he had been pressured to
point out the defendant as the person who had shot
him. The defendant argues that the court abused its
discretion in excluding the letter from evidence because
the letter contained statements against Ellis’ penal inter-
est under § 8-6 (4) of the Connecticut Code of Evidence.
The state responds that the court properly excluded
the letter, as there is no indication that Ellis was aware
of whether he was subjecting himself to criminal pun-
ishment when making the statements in the letter, and
therefore the statements are not against Ellis’ penal
interest. We agree with the state.
The following procedural history is relevant to the
resolution of this claim. Just prior to the start of the
second trial in January, 2016, the state informed the
court that Ellis was refusing to testify. The court noted
that the state had properly served Ellis with a subpoena
and that the subpoena contained a notice that if Ellis
did not appear in court on the date and time stated,
the court could order his arrest. The court issued a
capias pursuant to General Statutes § 54-2a and set
bond in the amount of $100,000.
During the trial, the state informed the court that
Ellis maintained his refusal to testify. The court allowed
Ellis’ testimony from the first trial and probable cause
hearing to be read into the record, and provided the
jury with redacted transcripts of that former testimony.
In response, the defendant offered a letter that Ellis
‘‘purportedly handed to madam clerk’’ on January 5,
2016, in which he stated, inter alia, that ‘‘I have also
been pressured to point out a specific individual, the
defendant, Miguel Vega, in which, I state and have stated
I did not actually know who the offender was. In the
heat of the incidence, in which, I was attacked and was
in the midst of running to safety in order to contact
authorities. I did not in fact see the offender’s face.’’
(Internal quotation marks omitted.) Ellis also allegedly
wrote that ‘‘I am reaching out in efforts to express my
feelings and concerns that my well-being, safety, and
cooperation has not been taken into account by the
police department, [the] State of Connecticut, [or] the
Superior Courts. I am in fear of my life and the lives
of my family.’’
Defense counsel argued that the letter should be
admitted as a statement against penal interest under
§ 8-6 (4) of the Connecticut Code of Evidence. Defense
counsel reasoned that the statement was against Ellis’
penal interest because ‘‘he told [the court] this morning
that in the face of criminal contempt, penalties of incar-
ceration and fines, he still was not going to testify. So,
this is evidence of his . . . penal intent, if you will,
against his penal [interest].’’ The state objected, arguing
that ‘‘although [the letter] was submitted in the belief
that it would help him in his quest not to testify here,’’
none of the statements in the letter were against Ellis’
penal interest. The state specified that it did not believe
that Ellis ‘‘felt that this statement was going to be
against his penal interest when he made it,’’ or that ‘‘he
felt that he was [going to] incur any liability.’’
The court sustained the state’s objection to the letter,
concluding that the statements contained in the letter
were not against Ellis’ penal interest. The court rea-
soned that ‘‘[a]lthough a refusal to cooperate does in
fact implicate . . . a victim’s exposure to possible con-
sequences such as contempt, the court does not view
the letter as a statement against penal interest. In fact,
much of the letter relates to Mr. Ellis’ fears for his
safety and that of his family as well as his perceived
dissatisfaction with the manner in which he was treated.
. . . The letter is therefore inadmissible hearsay and
the objection is sustained.’’
On appeal, the defendant argues that the court should
have admitted the letter as a statement against Ellis’
penal interest. The defendant argues for the first time5
that because Ellis previously testified that the defendant
was one of the shooters, he knew or should have known
that the statement in his letter, in which he maintained
that he did not know who shot him, exposed him to a
perjury charge and was thus against his penal interest.
We disagree.
‘‘Section 8-6 of the Connecticut Code of Evidence
provides that if the declarant is unavailable as a witness,
a statement against penal interest is not excluded by
the hearsay rule. Section 8-6 (4) of the Connecticut
Code of Evidence defines a statement against penal
interest as follows: A trustworthy statement against
penal interest that, at the time of its making, so far
tended to subject the declarant to criminal liability that
a reasonable person in the declarant’s position would
not have made the statement unless the person believed
it to be true. In determining the trustworthiness of a
statement against penal interest, the court shall con-
sider (A) the time the statement was made and the
person to whom the statement was made, (B) the exis-
tence of corroborating evidence in the case, and (C)
the extent to which the statement was against the
declarant’s penal interest.’’ (Internal quotation marks
omitted.) State v. Diaz, 109 Conn. App. 519, 544–45,
952 A.2d 124, cert. denied, 289 Conn. 930, 958 A.2d
161 (2008). ‘‘In short, the admissibility of a hearsay
statement pursuant to § 8-6 (4) of the Connecticut Code
of Evidence is subject to a binary inquiry: (1) whether
[the] statement . . . was against [the declarant’s]
penal interest and, if so, (2) whether the statement was
sufficiently trustworthy.’’ (Internal quotation marks
omitted.) State v. Bonds, 172 Conn. App. 108, 117, 158
A.3d 826, cert. denied, 326 Conn. 907, 163 A.3d 1206
(2017).
‘‘As to what is against penal interest, quite obviously
the essential characteristic is the exposure to risk of
punishment for a crime . . . . Moreover, it is not the
fact that the declaration is against interest but aware-
ness of that fact by the declarant which gives the state-
ment significance.’’ (Internal quotation marks omitted.)
State v. Collins, 147 Conn. App. 584, 590, 82 A.3d 1208,
cert. denied, 311 Conn. 929, 86 A.3d 1057 (2014).
This court’s decision in State v. Diaz, supra, 109
Conn. App. 519, guides our resolution of this claim. In
Diaz, a witness, who identified the defendant as a drug
dealer and testified at the defendant’s first trial, wrote
a letter in which he stated that he ‘‘testified in court
against [the defendant] because the police said [he]
had no choice and [because] they gave [him] heroin.’’
(Internal quotation marks omitted.) Id., 540. The defen-
dant asserted that the letter was a statement against
the declarant’s penal interest because the letter
revealed that the declarant committed perjury when he
testified at the first trial. Id., 541. The trial court sus-
tained the state’s objection and ruled that the letter was
inadmissible on several grounds. Id., 543. The trial court
concluded, inter alia, that ‘‘the letter did not constitute
a statement against [the declarant’s] penal interest
because none of the statements therein tended to sub-
ject [the declarant] to criminal liability for any crimes
but were in the nature of a recantation of [the declar-
ant’s] prior testimony.’’6 Id. On appeal, this court con-
cluded that ‘‘the court’s ruling that the statement did
not fall within the hearsay exception relied on by the
defendant was legally correct.’’ Id., 548.
The letter at issue in the present case similarly did
not include a statement against penal interest.7 The
letter accused Inspector Timothy Pitkin of pressuring
Ellis into testifying a certain way. It stated that Pitkin
threatened Ellis by telling him that if he did not testify
at the defendant’s second trial, he would go to prison.
Although the letter alleged that Ellis ‘‘ ‘did not actually
know who the offender was’ ’’ and that he ‘‘ ‘did not see
the offender’s face,’ ’’ these statements are not against
Ellis’ penal interest, as they, standing alone, provide no
indication that Ellis knew or should have known that
he was subjecting himself to criminal liability by making
those statements. As in Diaz, the statements were in
the nature of a recantation of Ellis’ prior testimony,
and seemingly not intended by him as an admission
of perjury. Therefore, Ellis’ letter did not contain any
statements against penal interest pursuant to § 8-6 (4)
of the Connecticut Code of Evidence.8 Accordingly, the
court did not abuse its discretion in sustaining the
state’s objection and excluding the letter from
evidence.9
II
CONSTITUTIONAL CLAIM
We now turn our analysis to the defendant’s constitu-
tional claim. On appeal, the defendant claims that the
admission of certain statements violated his sixth and
fourteenth amendment right to confrontation. The
statements at issue are the statements Kirkwood made
over the telephone to someone she referred to as
‘‘[m]om’’ and the statements Kirkwood made directly
to Flynn, which Taylor overheard.10 The state responds
that the statements were nontestimonial and that even
if the statements were testimonial, any error was harm-
less beyond a reasonable doubt. We agree with the state.
At trial, the defendant did not argue that the admis-
sion of Kirkwood’s statements would violate his right
to confrontation. The defendant instead focused his
objection on the assertion that Kirkwood’s statements
did not fall within the spontaneous utterance exception.
Therefore, before we reach the merits of the defendant’s
confrontation clause claim, we first must determine
whether the issue is properly before this court. On
appeal, the defendant requests that we review his con-
stitutional claim pursuant to State v. Golding, 213 Conn.
233, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
It is well established that ‘‘a defendant can prevail
on a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate
tribunal is free, therefore, to respond to the defendant’s
claim by focusing on whichever condition is most rele-
vant in the particular circumstances.’’ (Emphasis in
original; footnote omitted.) State v. Golding, supra, 213
Conn. 239–40. ‘‘[T]he first two [prongs of Golding]
involve a determination of whether the claim is review-
able . . . and under those two prongs, [t]he defendant
bears the responsibility for providing a record that is
adequate for review of his claim of constitutional error.’’
(Citation omitted; internal quotation marks omitted.)
State v. Elson, 311 Conn. 726, 744, 91 A.3d 862 (2014).
‘‘[T]he second two [prongs of Golding] . . . involve a
determination of whether the defendant may prevail.’’
(Internal quotation marks omitted.) State v. Leggett, 94
Conn. App. 392, 408, 892 A.2d 1000, cert. denied, 278
Conn. 911, 899 A.2d 39 (2006).
We conclude that the defendant’s constitutional claim
meets the first two prongs of Golding. The defendant
has provided us with an adequate record upon which
to review his alleged constitutional violation, and the
defendant’s claim is of constitutional magnitude.
Although his claim centers on the admission of evi-
dence, it implicates the defendant’s sixth and fourteenth
amendment right to confrontation of witnesses. Ulti-
mately, however, whether a defendant is entitled to any
remedy for a violation of his right to confront witnesses
depends on whether the violation is legally harmless.
See State v. Campbell, 328 Conn. 444, 512, A.3d
(2018) (‘‘[i]t is well established that a violation of the
defendant’s right to confront witnesses is subject to
harmless error analysis’’ [internal quotation marks omit-
ted]); see also State v. Pugh, 176 Conn. App. 518, 528,
170 A.3d 710 (conducting harmless error analysis to
resolve confrontation clause claim), cert. denied, 327
Conn. 985, 175 A.3d 43 (2017). We thus turn our discus-
sion to the third and fourth prongs of Golding.
‘‘The [c]onfrontation [c]lause of the [s]ixth [a]mend-
ment provides: In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the
witnesses against him. In Crawford v. Washington, 541
U.S. 36, 53–54 [124 S. Ct. 1354, 158 L. Ed. 2d 177] (2004),
[the United States Supreme Court] held that this provi-
sion bars admission of testimonial statements of a wit-
ness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior
opportunity for cross-examination. A critical portion of
this holding, and the portion central to [the] resolution
of the [present case], is the phrase testimonial state-
ments. Only statements of this sort cause the declarant
to be a witness within the meaning of the [c]onfronta-
tion [c]lause. . . . It is the testimonial character of the
statement that separates it from other hearsay that,
while subject to traditional limitations upon hearsay
evidence, is not subject to the [c]onfrontation [c]lause.’’
(Citation omitted; internal quotation marks omitted.)
Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266,
165 L. Ed. 2d 224 (2006).
‘‘Although [in Crawford] the Supreme Court declined
to define the term testimonial, it noted, however, that
[w]hatever else the term covers, it applies at a minimum
to prior testimony at a preliminary hearing, before a
grand jury, or at a formal trial; and to police interroga-
tions. . . . Various formulations of this core class of
testimonial statements exist: ex parte in-court testi-
mony or its functional equivalent—that is, material such
as affidavits, custodial examinations, prior testimony
that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would rea-
sonably expect to use prosecutorially . . . .’’ (Citation
omitted; internal quotation marks omitted.) State v.
Azevedo, 178 Conn. App. 671, 676, 176 A.3d 1196 (2017),
cert. denied, 328 Conn. 908, 178 A.3d 390 (2018).
‘‘Accordingly, even though the Supreme Court did
not establish a comprehensive definition of testimonial,
it is clear that much of the [United States] Supreme
Court’s and our jurisprudence applying Crawford
largely has focused on the reasonable expectation of
the declarant that, under the circumstances, his or her
words later could be used for prosecutorial purposes.
. . . [T]his expectation must be reasonable under the
circumstances and not some subjective or far-fetched,
hypothetical expectation that takes the reasoning in
Crawford and Davis [v. Washington, supra, 547 U.S.
813] to its logical extreme. (Citation omitted; emphasis
in original; internal quotation marks omitted.) State v.
Azevedo, supra, 178 Conn. App. 676–77.
‘‘In Davis v. Washington, supra, 547 U.S. 813, the
court articulated the following test for determining
whether such statements are testimonial and, therefore,
inadmissible under Crawford in the absence of a prior
opportunity for cross-examination by the defendant:
Statements are nontestimonial when made in the course
of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation
is to enable police assistance to meet an ongoing emer-
gency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emer-
gency, and that the primary purpose of the interrogation
is to establish or prove past events potentially relevant
to later criminal prosecution.’’ (Internal quotation
marks omitted.) State v. Kirby, supra, 280 Conn. 381.
The determination of whether a statement is testimonial
and thus subject to the admissibility restrictions of
Crawford is a question of constitutional law that is
subject to plenary review. Id., 378.
The relevant facts are discussed in part I A 1 of this
opinion. With regard to the statements that Kirkwood
made over the telephone, which Flynn overheard, we
conclude that those statements are nontestimonial, and
therefore, the defendant has failed to satisfy the third
prong of Golding with respect to those statements.
Those statements fall into neither the ‘‘ ‘core class’ ’’
of testimonial statements—e.g., prior testimony at a
preliminary hearing, grand jury testimony, former trial
testimony, or police interrogations—nor one of the
‘‘ ‘[v]arious formulations’ ’’ of the core class—e.g., affi-
davits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pre-
trial statements that the declarant would expect to be
used in a later prosecution. State v. Azevedo, supra, 178
Conn. App. 676.
Kirkwood made the statements over the telephone
to someone she referred to as ‘‘[m]om.’’ She did not
make them directly to Flynn, and the statements were
not made in response to Flynn’s questions. Flynn did
not initiate this conversation with Kirkwood, and there
is no evidence that Kirkwood intended for Flynn to
hear the statements she was making during her tele-
phone call. Rather, Kirkwood made the statements over
the telephone to a private person, not a government
agent, while under stress from the incident, including
the shooting, which she had witnessed minutes before.
Accordingly, the defendant cannot prevail on his unpre-
served claim that admission of the statements Kirkwood
made over the telephone to ‘‘[m]om’’ violated his right
to confrontation.
We conclude, however, that the statements that Kirk-
wood made directly to Flynn, which Taylor overheard,
are testimonial in nature. Because the defendant had no
prior opportunity to cross-examine Kirkwood regarding
those statements, the admission of those testimonial
statements violated the defendant’s right to confronta-
tion. See Crawford v. Washington, 541 U.S. 53–54.
Our Supreme Court’s decision in State v. Kirby,
supra, 280 Conn. 361, informs our analysis of this issue.
In Kirby, the defendant kidnapped and assaulted the
victim; the victim, however, escaped and returned to
her home. Id., 365. The officer who responded to the
victim’s home conducted an interview of the victim, in
which she identified the defendant as the perpetrator
of the kidnapping and assault, and detailed exactly what
had occurred. Id., 366–69. On the following evening,
the victim suffered fatal injuries when she fell down a
flight of stairs and was thus unavailable for trial. Id.,
371. The trial court allowed the responding officer to
testify regarding the statements the victim made to him
during the interview. Id., 368–69.
On appeal, the defendant argued, inter alia, that
admission of the defendant’s statements to the
responding officer during the interview violated the
defendant’s right to confrontation. Id., 378. Our
Supreme Court agreed, holding that ‘‘[t]he facts and
circumstances of this case indicate that . . . the offi-
cer’s questioning was directed not at seeking to deter-
mine . . . what is happening, but rather what
happened. Objectively viewed, the primary, if not
indeed the sole, purpose of the interrogation was to
investigate a possible crime—which is, of course, pre-
cisely what the officer should have done.’’ (Emphasis
added; internal quotation marks omitted.) Id., 385–86.
The court further opined that ‘‘any emergency with
respect to the complainant had ceased because the
alleged crimes no longer were in progress and she was
rendered protected by [the responding officer’s] pres-
ence at her home, which constituted part of the alleged
crime scene in this case.’’ Id., 386. Accordingly, because
the responding officer was present and the defendant
‘‘was located some distance away . . . the primary
purpose of [the responding officer’s] interaction with
the complainant [was] investigatory, and her answers
to his questions testimonial statements. . . . [T]he trial
court improperly permitted [the responding officer] to
testify about the complainant’s statements to him.’’11
Id., 386–87.
The statements that Kirkwood made directly to Flynn
are similarly testimonial in nature. As in Kirby, when
Flynn was interviewing Kirkwood, his primary purpose
was to determine what had happened, not what was
happening. The emergency had ceased; Flynn and other
officers were present at the scene, and both shooters
had fled the area. Having heard Kirkwood make the
statements over the phone in which she identified the
defendant, Flynn interviewed Kirkwood as part of his
investigation into the crime that had occurred. Accord-
ingly, we conclude that the statements Kirkwood made
directly to Flynn were testimonial. Because the defen-
dant never had an opportunity to cross-examine Kirk-
wood regarding those testimonial statements, their
admission violated the defendant’s right to confronta-
tion. Therefore, the third prong of Golding is satisfied.
The defendant’s claim, however, fails under the
fourth prong of Golding. ‘‘It is well established that a
violation of the defendant’s right to confront witnesses
is subject to harmless error analysis . . . .’’ (Internal
quotation marks omitted.) State v. Pugh, supra, 176
Conn. App. 530. Although the defendant has established
that a constitutional violation exists, we conclude that
the state presented sufficient independent evidence to
render any error harmless beyond a reasonable doubt.
Such independent evidence includes the statements
that Flynn overheard Kirkwood make during a phone
call, in which she identified the defendant, with whom
she had a child, as one of the shooters. Additionally,
the jury heard Phillips’ 911 call, in which she stated
that the defendant had shot Perry. Numerous witnesses
who were present at the Prest Street apartment during
the occurrence identified the defendant as one of the
shooters,12 and at least two witnesses testified that they
heard Kirkwood scream the defendant’s name during
the occurrence.13 There was also testimony that the
defendant fired the first shot.
In addition, the jury heard numerous witnesses testify
that the defendant, Ellis, and Perry were involved in a
fight while at the bar and that the defendant was on
the losing end of that fight, evidence that could be used
to establish a motive for the defendant’s subsequent
actions. The jury heard testimony that investigators
could not find anyone to corroborate the defendant’s
alibi that he was in a taxi at the time of the occurrence.
Moreover, the jury heard testimony that Ellis twice iden-
tified the defendant as one of the shooters: once while
speaking to Clachrie, and again when shown a photo-
graphic array containing the defendant’s photograph.
The state also presented forensic evidence which estab-
lished that the same weapons that were fired inside the
apartment also were fired outside the apartment and
at Ellis as he was running away.
Accordingly, on the basis of the strong identification
evidence before the jury, which was separate from the
testimonial statements that Taylor overheard Kirkwood
make directly to Flynn, we conclude that any error was
harmless beyond a reasonable doubt. As the preceding
paragraphs demonstrate, the state had presented sub-
stantial evidence for the jury reasonably to identify
the defendant as the shooter of Perry and one of the
shooters of Ellis. Therefore, all four prongs of Golding
have not been satisfied with respect to this claim.
Accordingly, the defendant’s unpreserved constitu-
tional claim must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
During the sentencing proceeding, the court vacated the finding of guilt
on the felony murder count.
2
Mikey is a nickname for the defendant.
3
Flynn did not testify regarding the substance of the statements that
Kirkwood made directly to him. Although he testified that he spoke directly
to Kirkwood, the state did not ask him about what Kirkwood stated during
that conversation. In fact, during Flynn’s testimony, the state made clear
that it was not going to attempt to introduce through Flynn the statements
that Kirkwood made directly to him.
4
The fact that Ellis initially told Clachrie that the shooter was a ‘‘Puerto
Rican male in black’’ and only later identified the defendant by name and as
the father of Kirkwood’s child is not necessarily dispositive, as the defendant
claims, for purposes of determining whether the court abused its discretion
in admitting the utterances. Ellis had been shot twice, was suffering from
an extremely painful and life-threatening condition, and was in shock or
under the stress of the occurrence when he made to Clachrie the statement
in which he identified the defendant as one of the shooters.
5
For the first time on appeal, the defendant raises the argument that the
statements contained in the letter exposed Ellis to perjury charges and
were thus against his penal interest. At trial, the defendant had argued that
it was Ellis’ exposure to contempt charges that made the statements in his
letter against his penal interest. The state argues that the defendant’s claim
is unpreserved. Although the defendant argued before the court and before
this court that the statements contained in the letter were against Ellis’
penal interest, he based his argument before the trial court on Ellis’ alleged
exposure to a charge of criminal contempt, and did not raise in the trial
court Ellis’ alleged exposure to a charge of perjury. The trial court, therefore,
never had the occasion to consider whether Ellis’ statements reasonably
subjected him to a perjury charge. Because both Ellis’ alleged exposure to
a charge of criminal contempt, raised solely in the trial court, and Ellis’
alleged exposure to a charge of perjury, raised solely in this court, implicate
the statement again penal interest hearsay exception, we will address the
merits of the defendant’s claim.
6
The trial court in Diaz also concluded that the statements contained in
the letter were not trustworthy. See State v. Diaz, supra, 109 Conn. App.
543. Specifically, the court found that the letter was submitted approximately
one year following the criminal conduct at issue, and noted that ‘‘it did not
have any information as to the circumstances surrounding the making of
the statement, such as why the declarant made the statement [and] whether
[the declarant] wrote [the letter] himself . . . .’’ Id.
7
The majority of the letter contained statements that Ellis feared for his
safety and the safety of his family. Additionally, Ellis proclaimed that he
had been mistreated throughout the first trial and that the state had not
taken into account his status as a victim in this case. These statements,
which make up the majority of the letter, do not implicate Ellis’ penal interest.
8
Even if we assume arguendo that one or more statements in the letter
were against Ellis’ penal interest, the letter itself does not provide adequate
indicia that the statements contained therein are trustworthy. For example,
the statements were made nearly six years after the occurrence. Cf. State
v. Lopez, 254 Conn. 309, 317, 757 A.2d 542 (2000) (‘‘[i]n general, declarations
made soon after the crime suggest more reliability than those made after
a lapse of time where a declarant has a more ample opportunity for reflection
and contrivance’’ [internal quotation marks omitted]). Moreover, the letter
was delivered to the court clerk shortly before the second trial. Cf. State
v. Pierre, 277 Conn. 42, 69–70, 890 A.2d 474 (concluding statements ‘‘strongly
indicative of their reliability’’ where ‘‘[declarant] made the statements on
his own initiative, to an individual who was a friend and someone he routinely
socialized with, and not in the coercive atmosphere of [litigation]’’ [internal
quotation marks omitted]), cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L.
Ed. 2d 904 (2006). Additionally, there is nothing in the record demonstrating
whether Ellis in fact authored the letter himself and whether it accurately
reflected his position, although that seems to have been assumed by the
court and the state. See State v. Diaz, supra, 109 Conn. App. 543.
9
The defendant argues for the first time on appeal that the court should
have admitted the letter pursuant to § 8-9 of the Connecticut Code of Evi-
dence, the residual exception to the hearsay rule. This claim was not raised
at trial and is thus not properly preserved. Accordingly, we decline to review
it on appeal. See State v. Jorge P., 308 Conn. 740, 753, 66 A.3d 869 (2013)
(‘‘[t]his court is not bound to consider claims of law not made at the trial’’
[internal quotation marks omitted]).
10
The defendant also claimed that the admission of Ellis’ statements to
Clachrie violated his right to confrontation. In the defendant’s reply brief,
however, he appears to concede that Ellis’ statements to Clachrie do not
pose a confrontation clause issue, as he states that ‘‘[t]he admission of
[Kirkwood’s and Ellis’] statements under the guise of spontaneous utterances
was an abuse of the trial court’s discretion and, in the case of Kirkwood,
a violation of [the defendant’s] confrontation clause rights.’’ (Emphasis
added.) Moreover, the admission of Ellis’ statements did not raise a confron-
tation clause issue, as Ellis was twice subject to cross-examination regarding
the statements he made to Clachrie.
11
Because the state did not argue in Kirby that admission of the victim’s
statements was harmless beyond a reasonable doubt, our Supreme Court
reversed the judgment of conviction and remanded the case for a new trial.
State v. Kirby, supra, 280 Conn. 387–88.
12
The witnesses’ accounts varied regarding exactly how they recognized
the defendant as one of the shooters. It is the job of the jury, however, to
determine how much weight to give each item of evidence with which it is
presented. See State v. Osbourne, 138 Conn. App. 518, 533–34, 53 A.3d 284
(‘‘[i]t is axiomatic that it is the jury’s role as the sole trier of the facts to
weigh the conflicting evidence and to determine the credibility of witnesses’’
[internal quotation marks omitted]), cert. denied, 307 Conn. 937, 56 A.3d
716 (2012).
13
Specifically, Shauntay Ellis testified that Kirkwood screamed, ‘‘Mikey,
stop,’’ and Parrish testified that Kirkwood screamed, ‘‘Mikey, why are you
doing this . . . ?’’