State v. Willoughby ( 2014 )

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STATE OF CONNECTICUT v. SHANAN A.
WILLOUGHBY
(AC 35863)
Beach, Alvord and Harper, Js.
Argued September 9—officially released November 4, 2014
(Appeal from Superior Court, judicial district of New
London, geographical area number twenty-one,
Jongbloed, J.)
Sandy M. Moore, for the appellant (defendant).
Jacob L. McChesney, special deputy assistant state’s
attorney, with whom, on the brief, were Michael L.
Regan, state’s attorney, and Christa L. Baker, assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Shanan A. Willoughby,
appeals from the judgment of conviction, rendered after
a jury trial, of possession of marijuana with intent to
sell in violation of General Statutes § 21a-277 (b),1
interfering with an officer in violation of General Stat-
utes § 53a-167a, forgery in the second degree in viola-
tion of General Statutes § 53a-139, and criminal
impersonation in violation of General Statutes § 53a-
130. On appeal, the defendant argues that the trial court
(1) incorrectly admitted testimony of a police officer
that he had received information that the defendant was
involved in a shooting and drug sales without issuing
a contemporaneous limiting instruction specifying the
purpose for which the evidence was to be considered,
and (2) improperly denied his motion to suppress
because the evidence was obtained as a result of an
illegal motor vehicle stop. We affirm the judgment of
the trial court.
The following facts were found by the court. Police
Officer Jason Calouro was patrolling the area of Main
Street in downtown Norwich on November 18, 2011,
when Calouro observed the defendant entering the pas-
senger side of a vehicle after parting ways with another
person. Calouro observed the vehicle pull into traffic
without using a signal and cross a double yellow line.
After witnessing the motor vehicle violations, Calouro
pulled the vehicle over.2 Upon approaching the vehicle,
Calouro observed the defendant, seated in the passen-
ger seat, move his hand behind himself to the small of
his back. On the basis of the defendant’s movement
and prior information Calouro had received that the
defendant had been involved in a shooting and drug
sales, Calouro believed he might be concealing a
weapon. Calouro asked the defendant to exit the vehi-
cle, and he conducted a patdown of the defendant’s
outer clothing.
While conducting the patdown, Calouro felt a hard
item the size of a golf ball in the area of the defendant’s
buttocks. When asked what the item was, the defendant
swung his elbow into Calouro’s shoulder and attempted
to get away. The defendant actively resisted Calouro’s
attempts to secure him and was not subdued until
Calouro received assistance from another officer. At
some point during the struggle, the item fell from the
defendant’s leg, and he kicked it under the car. The
item, a plastic bag containing a substance that tested
positive for cocaine, was recovered.
The defendant was brought to the Norwich Police
Department, where he provided an identification card
bearing the name Ibatafari Lowe. He also signed a notice
of rights form under the name of Ibatafari Lowe before
admitting that he was actually Shanan Willoughby. The
defendant additionally made statements that he sold
narcotics and provided consent to officers to search
his apartment, where the officers located marijuana
and currency.
On January 29, 2013, the defendant was found guilty
of possession of marijuana with intent to sell, interfer-
ing with an officer, forgery in the second degree, and
criminal impersonation. The defendant was found not
guilty of possession of narcotics in violation of General
Statutes § 21a-279 (a), possession of crack cocaine with
the intent to sell in violation of General Statutes § 21a-
278 (b), and assault of a police officer in violation of
General Statutes § 53a-167c. On June 21, 2013, the
defendant was sentenced to seven years incarceration,
suspended after five years, and three years probation.
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant first claims that the admission of Offi-
cer Calouro’s testimony violated the hearsay rule. The
defendant challenges the portion of Calouro’s testimony
in which he recounted statements made to him concern-
ing the defendant’s involvement in a shooting and drug
sales. Specifically, the defendant claims error in the
court’s contemporaneous instruction to the jury not to
consider the challenged statements for the truth of the
matter asserted. The defendant asserts that this contem-
poraneous instruction was vague and claims that the
jury ‘‘received a conflicting message’’ as to the purpose
of Calouro’s testimony. The defendant contends that the
statements were ‘‘offered for the truth of the statement
because the inference is that Officer Calouro would
not have acted if he did not believe the truth in the
statements of the unnamed witnesses.’’
The following additional facts are relevant to the
defendant’s claims. At trial, the state called Calouro to
the witness stand to testify regarding his interaction
with the defendant. In addition to Calouro’s testimony
concerning the effectuation of the stop, Calouro testi-
fied regarding the basis for his belief, at the time he
approached the vehicle, that the defendant might be
armed. Calouro explained that besides observing the
defendant move his hand behind himself to the small
of his back, he also had previously received information
that the defendant had been involved in a shooting
and was involved in drug sales. Defense counsel then
objected to this testimony, and counsel for the state
indicated that it was not being offered for the truth of
the matter. The court overruled the objection,
instructing the jury that it was not to take the testimony
for the truth of the matter asserted.3 On cross-examina-
tion, defense counsel followed up with Calouro and
questioned him further about his receipt of this infor-
mation.
In the final charge to the jury, delivered on January
24, 2013, the day after Calouro’s testimony was given,
the court instructed the jury that certain statements,
including those made to the witness ‘‘regarding a shoot-
ing and prior narcotics dealing,’’ were offered only to
show ‘‘the basis for the witness’ beliefs or actions,’’ and
further, that such statements were not offered to prove
the truth of those matters.4 No objection was made to
the instruction as delivered.5
We first set forth the standard of review that guides
our analysis. ‘‘To the extent [that] a trial court’s admis-
sion of evidence is based on an interpretation of the
[Connecticut] Code of Evidence, our standard of review
is plenary. For example, whether a challenged state-
ment properly may be classified as hearsay and whether
a hearsay exception properly is identified are legal ques-
tions demanding plenary review. . . . 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.’’ (Citation omitted; internal quotation marks
omitted.) State v. Foster, 293 Conn. 327, 333–34, 977
A.2d 199 (2009).
It is settled law that out-of-court statements that are
not offered to establish the truth of the matter asserted
are not hearsay. ‘‘[A]n out-of-court statement offered
to prove the truth of the matter asserted is hearsay.
. . . If such a statement is offered for a purpose other
than establishing the truth of the matters contained in
the statement, it is not hearsay.’’ (Citation omitted.)
State v. Esposito, 223 Conn. 299, 315, 613 A.2d 242
(1992); see also State v. Crafts, 226 Conn. 237, 253, 627
A.2d 877 (1993) (‘‘[a]n out-of-court statement is hearsay
. . . only if it is offered to prove the truth of the matter
asserted in the statement’’). ‘‘Statements of declarants
offered to show their effect on the listener, not for the
truth of the contents of the statements, are not hearsay
and are admissible.’’ Dinan v. Marchand, 279 Conn.
558, 572, 903 A.2d 201 (2006).
The challenged statements, which were that the
defendant had been involved in a shooting and drug
sales, were made to Calouro, who then testified at trial
that he had received this information. A review of the
record leads us to conclude that the out-of-court state-
ments were admitted to show their effect on Calouro,
specifically, the basis for his belief that the defendant
might have been armed, and not to prove that the defen-
dant had indeed participated in either of these activities.
Accordingly, the statements did not constitute hearsay,
and the court did not abuse its discretion in admitting
Calouro’s testimony.
The defendant further argues that ‘‘[t]here should
have been some guidance during the trial as to what
specific issue the admitted hearsay evidence was
intended to support, at the time the evidence was admit-
ted.’’ In fact, our case law reveals that the court is not
required to give a contemporaneous limiting instruction
specifying the purpose for which statements may be
considered. ‘‘[A]lthough it is acceptable for a trial court,
in its discretion, to give a contemporaneous limiting
instruction to the jury, there is no rule of practice or
statutory requirement that the court must give such an
instruction contemporaneously with the introduction
of such testimony.’’ (Internal quotation marks omitted.)
William C. v. Commissioner of Correction, 126 Conn.
App. 185, 190, 10 A.3d 115, cert. denied, 300 Conn. 922,
14 A.3d 1007 (2011).6
The defendant provides no legal support for his con-
tention that the court’s contemporaneous instruction
to the jury that it was not to take the statements for the
truth of the matter asserted was somehow insufficient
because it did not also relate the permissible purpose
for which the testimony could be considered, where
the permissible purpose was clearly conveyed to the
jury in its final charge.7 In this case, the jury was
instructed at the time of the testimony that it was not
to consider the statements for the truth of the matter
asserted and was further instructed in the final charge
that it was to consider the statements only for the pur-
pose of showing the basis for Calouro’s beliefs or
actions.8 Accordingly, we conclude that the trial court
did not abuse its discretion in admitting the testimony
for a nonhearsay purpose.
II
With respect to the defendant’s second claim, which
is that the court improperly denied his motion to sup-
press, the following additional facts are relevant. On
January 17, 2013, the defendant filed a motion to sup-
press the physical evidence that had been seized, any
statements he had made, and any identification testi-
mony, arguing that the evidence should be excluded as
the fruit of an unlawful search. The defendant presented
two arguments in support of his claim that the search
was illegal. First, he argued that the motor vehicle stop
was pretextual and therefore unsupported by a reason-
able and articulable suspicion. He alternatively argued
that even if the stop was justified, the patdown
exceeded the permissible bounds for an investigative
stop. The court held an evidentiary hearing on January
23, 2013. Calouro testified as to his previous knowledge
of the defendant9 and his interaction with the defendant
after stopping the motor vehicle. At the conclusion of
the hearing, the court orally denied the motion to sup-
press. On March 11, 2013, the court issued a written
memorandum of decision, concluding that the motor
vehicle stop was supported by a reasonable and articu-
lable suspicion that was based on the observation of
motor vehicle violations and that the patdown was justi-
fied by ‘‘a substantial concern for officer as well as
public safety . . . .’’
We begin by noting our standard of review in connec-
tion with a motion to suppress. ‘‘[O]ur standard of
review of a trial court’s findings and conclusions in
connection with a motion to suppress is well defined.
A finding of fact will not be disturbed unless it is clearly
erroneous in view of the evidence and pleadings in the
whole record . . . . [When] the legal conclusions of
the court are challenged, [our review is plenary, and] we
must determine whether they are legally and logically
correct and whether they find support in the facts set
out in the court’s [ruling] . . . .’’ (Internal quotation
marks omitted.) State v. Ocasio, 112 Conn. App. 737,
742–43, 963 A.2d 1109, cert. denied, 292 Conn. 904, 973
A.2d 106 (2009).
The defendant makes two main arguments in support
of his claim that the trial court improperly denied his
motion to suppress evidence obtained as a result of the
motor vehicle stop. We disagree with both and will
examine them in turn.
First, we consider the defendant’s contention that
the court improperly concluded that the motor vehicle
stop was justified by a reasonable and articulable suspi-
cion. The defendant claims that Calouro improperly
relied solely on the information that he had received,
which was that the defendant had been involved in a
shooting and drug sales, to look for a reason to stop
the motor vehicle. He claims that Calouro immediately
focused on the defendant by approaching the passenger
side, and that this, combined with Calouro’s testimony
that he was looking for a reason to stop the car, ren-
dered the stop impermissible.
‘‘A stop pursuant to Terry v. Ohio [392 U.S. 1, 88 S.
Ct. 1868, 20 L. Ed. 2d 889 (1968)] . . . is legal if three
conditions are met: (1) the officer must have a reason-
able suspicion that a crime has occurred, is occurring,
or is about to occur; (2) the purpose of the stop must
be reasonable; and (3) the scope and character of the
detention must be reasonable when considered in light
of its purpose. . . . Because a reasonable and articula-
ble suspicion is an objective standard, we focus not on
the actual state of mind of the police officer, but on
whether a reasonable person, having the information
available to and known by the police, would have had
that level of suspicion.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Cyrus, 297 Conn. 829,
837, 1 A.3d 59 (2010). ‘‘An appeal challenging the factual
basis of a court’s decision that a reasonable and articula-
ble suspicion exists requires that we determine, in light
of the record taken as a whole, (1) whether the underly-
ing factual findings of the trial court are clearly errone-
ous; and (2) whether the [court’s] conclusion that those
facts give rise to such a suspicion is legally correct.’’
(Internal quotation marks omitted.) State v. DelValle,
109 Conn. App. 143, 150, 950 A.2d 603, cert. denied, 289
Conn. 928, 958 A.2d 160 (2008).
The defendant does not challenge the trial court’s
finding that the operator of the motor vehicle ‘‘pulled
into traffic without signaling and crossed a double yel-
low line,’’ violations for which the operator was subse-
quently ticketed.10 We therefore examine only whether
the facts as found rise to the level of a reasonable
and articulable suspicion. It is settled law that a police
officer has the authority to stop a motor vehicle upon
commission of a motor vehicle violation. See State v.
Jones, 113 Conn. App. 250, 262, 966 A.2d 277 (‘‘[a] police
officer has the right to stop a motor vehicle operating
on a Connecticut highway even if the reason for the stop
is only an infraction under our traffic laws’’ [internal
quotation marks omitted]), cert. denied, 292 Conn. 901,
971 A.2d 40 (2009). We thus conclude that the trial
court properly determined that Calouro possessed a
reasonable and articulable suspicion to stop the vehicle
on the basis of the observation of the motor vehicle vio-
lations.11
Having determined that the initial stop of the motor
vehicle was lawful, we next address the defendant’s
claim that the patdown search exceeded the bounds of
the permissible stop. The defendant specifically argues
that the movement of his hand behind himself to the
small of his back was not sufficient to lead Calouro to
reasonably believe that he was armed,12 and further,
that there were no facts indicating that the information
Calouro received concerning the defendant’s involve-
ment in a shooting was true.
A police officer, after stopping a vehicle for a motor
vehicle violation, may lawfully direct an occupant to
step out of the vehicle. State v. Dukes, 209 Conn. 98,
122, 547 A.2d 10 (1988). Furthermore, ‘‘[i]f, during the
course of a lawful investigatory detention, the officer
reasonably believes that the detained individual might
be armed and dangerous, the officer may undertake a
patdown search to discover weapons.’’ (Internal quota-
tion marks omitted.) State v. Tuck, 90 Conn. App. 872,
880, 879 A.2d 553 (2005). ‘‘In ascertaining whether rea-
sonable suspicion existed for the patdown search, the
totality of the circumstances—the whole picture—must
be taken into account.’’ (Internal quotation marks omit-
ted.) State v. Starks, 94 Conn. App. 325, 331, 892 A.2d
959, cert. denied, 278 Conn. 918, 901 A.2d 44 (2006).
The court made findings of fact that adequately sup-
ported its determination that the patdown was justified
by a reasonable suspicion that the defendant may have
been armed.13 First, the court found that Calouro had
observed the defendant move his hand behind himself
to the small of his back, which Calouro knew from his
training and experience to be a spot where weapons
are often carried. ‘‘[A] suspect’s attempt to reach into
his pocket or some other place where a weapon may be
concealed is a fact that supports a reasonable suspicion
that the suspect is armed and dangerous.’’ (Internal
quotation marks omitted.) State v. Tuck, supra, 90 Conn.
App. 882. Second, the court found that Calouro had
received information that the defendant was a drug
dealer and may have been involved in a shooting. Third,
the court found that Calouro was aware that the defen-
dant had been arrested for possession of drugs and
assault of a police officer. See State v. Starks, supra,
94 Conn. App. 329–31 (upholding trial court’s determi-
nation of reasonable suspicion to conduct patdown dur-
ing investigatory stop, where one consideration was
officer’s knowledge of defendant’s prior arrest for
assault on or interfering with police officer). Accord-
ingly, we agree with the court that the patdown was
justified by a reasonable belief that the defendant may
have been armed and dangerous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that although the judgment file contains a scrivener’s error
indicating that the defendant was convicted of sale of a controlled substance,
other documents in the court file contain the correct charge, possession of
marijuana with intent to sell, of which the defendant was convicted.
2
The operator of the vehicle was subsequently released after being issued
a citation for the motor vehicle infractions of failure to signal and failure
to drive right.
3
On direct examination, Officer Calouro testified as follows:
‘‘[The Prosecutor]: And what did you observe [when approaching the
vehicle]?
‘‘[Officer Calouro]: As I was doing this, [the defendant] leaned forward
and put his hand behind him, like this, put his hand back down in the area
of the small of his back and leaned all the way back in his seat, which was
a little bit reclined at the time.
‘‘[The Prosecutor]: And let the record reflect that the witness has placed
his right hand on the small of his back and is leaning back in his chair.
‘‘The Court: It may.
‘‘[The Prosecutor]: And when you saw this, what, if anything, did this
mean to you?
‘‘[Officer Calouro]: I immediately thought that he may have a weapon. I
previously got information that he was involved in a shooting in the area
where he lived at the time, which was 219 Broadway, and there was another
individual that I spoke with that said he was involved in ongoing drug sales.
‘‘[Defense Counsel]: Objection, Your Honor. I’d ask that—there’s no direct
evidence that that took place. Ask that it be stricken.
‘‘The Court: [Prosecutor].
‘‘[The Prosecutor]: Don’t believe he’s offering it as direct evidence,
Your Honor.
‘‘The Court: You’re not offering it for the truth of the matter at this time?
‘‘[The Prosecutor]: No, Your Honor.
‘‘The Court: All right. Then, I’ll overrule the objection, and I’ll just indicate,
ladies and gentlemen, that you’re not to take that testimony for the truth
of the matter asserted.’’
We note that after the court instructed the jury that it was not to take
the statements for the truth of the matter asserted, defense counsel did not
request further contemporaneous instruction as to the purposes for which
the jury could consider the statements.
4
The court instructed the jury as follows: ‘‘You will recall that I have
ruled that some testimony was allowed for a limited purpose. One witness
testified about statements made to them regarding a shooting and prior
narcotics dealing. These statements were not offered to prove the truth of
those matters, but only to show the basis for the witness’ beliefs or actions.
You may consider such evidence if you believe it and further find that it
logically, rationally and conclusively supports the issue for which it was
offered by the state, but only as it may bear on that issue.
‘‘On the other hand, if you do not believe such evidence, or even if you
do, if you find that it does not logically, rationally and conclusively support
the issue for which it was offered by the state, namely, the basis for the
witness’ beliefs or actions, then you may not consider that testimony for
any purpose.’’
5
After charging the jury, the court inquired of counsel as follows:
‘‘The Court: All right. Let me just inquire, were there any objections to
the charge as delivered?
‘‘[The Prosecutor]: No, Your Honor.
‘‘[Defense Counsel]: I’m sorry, Your Honor. I was—
‘‘The Court: Any objections to the charge as delivered?
‘‘[Defense Counsel]: No objection, Your Honor.’’
6
In William C. v. Commissioner of Correction, supra, 126 Conn. App.
187–88, no contemporaneous limiting instruction was issued at the time of
constancy of accusation testimony. Only the court’s final charge to the jury
instructed as to the proper use of such testimony. Id., 190.
7
The defendant cites State v. Buster, 224 Conn. 546, 558, 620 A.2d 110
(1993), for our Supreme Court’s recognition that the trial court twice
instructed the jury as to the purpose for which it could consider certain
statements. The defendant cites not to the holding of Buster, but rather to
the Supreme Court’s discussion of the treatment of those statements by this
court in its review of the Buster defendant’s claims on appeal from the trial
court’s judgment of conviction. Ultimately, the case provides no support
for the defendant’s argument.
8
The defendant’s argument that the jury received a conflicting message
as to the purpose of Calouro’s testimony is equally untenable. The court’s
final instruction to the jury regarding the purpose for which the out-of-court
statements could be considered was clear, and the defendant does not
challenge this instruction on appeal. ‘‘The jury is presumed, in the absence
of a fair indication to the contrary, to have followed the court’s instructions.’’
(Internal quotation marks omitted.) State v. Francis, 148 Conn. App. 788,
825, 86 A.3d 1074, cert. granted on other grounds, 311 Conn. 940, 89 A.3d
349 (2014).
9
Calouro testified to being aware of the defendant prior to observing him
parting ways with another person on the day of the motor vehicle stop.
Calouro stated that ‘‘[o]ne of [the defendant’s] neighbors indicated that he
is known to deal drugs on Perkins,’’ ‘‘[t]hrough interviews with [an arrestee]
I learned that [the defendant] was a higher-end drug dealer,’’ ‘‘[t]he neighbor
indicated that he was involved in a shooting, they believe that there was a
shooting outside that he was—he was engaged in.’’ Last, Calouro stated, ‘‘I
was aware that [the defendant] had been arrested for narcotics as well as,
I believe, assault on a Plainfield police officer.’’
10
Despite the fact that the motor vehicle operator ultimately was ticketed
for the observed violations, the defendant argues that Calouro was not
effectuating the purpose of the stop and that he was unduly focused on the
defendant, as evidenced by the fact that Calouro initially approached the
passenger side of the vehicle. The defendant provides no authority to support
his argument that a motor vehicle stop, conducted after observation of
motor vehicle violations, would be rendered invalid by the officer’s decision
to approach the passenger side first. Furthermore, an officer might approach
the passenger side for a number of reasons. See, e.g., State v. Sward, 124
Conn. App. 546, 549, 5 A.3d 965 (2010) (‘‘[f]or safety reasons, and because
the defendant’s vehicle was partially parked in the right travel lane, [the
officer] approached the defendant’s car from the passenger’s side’’).
11
In response to the defendant’s argument that Calouro improperly relied
on the information he received as to the defendant’s involvement in a shoot-
ing and drug sales to look for a reason to stop the motor vehicle, we note
that ‘‘[i]t is well established that an officer’s subjective intent in pulling over
a motorist is irrelevant to the question of whether the officer’s conduct
violates the constitution.’’ State v. Burroughs, 288 Conn. 836, 852, 955 A.2d
43 (2008).
12
The defendant cites State v. Badgett, 200 Conn. 412, 430–31, 512 A.2d
160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), arguing
that ‘‘[f]urtive movements do not necessarily give rise to a presumption that
there are weapons in the car.’’ In Badgett, the court determined that the
warrantless search of a bag in a motor vehicle for weapons was not supported
by probable cause, a more stringent standard than reasonable and articulable
suspicion. Id. Our case law is clear, however, that a furtive movement may
be a factor in determining whether there exists reasonable suspicion to
believe that a detained individual is armed. State v. Butler, 296 Conn. 62,
75, 993 A.2d 970 (2010) (officers’ observation of furtive movement toward
car console was permissible consideration in determination of reasonable
suspicion to conduct protective search of console).
13
The defendant does not challenge the court’s findings of fact as to the
observation of the movement of his hand behind himself to the small of his
back or Calouro’s receipt of information as to the defendant’s involvement
in drug dealing or a shooting; the defendant’s challenge is only to whether
the shooting actually occurred. We therefore determine solely whether these
facts rise to the level of a reasonable suspicion that the defendant may have
been armed.