State v. Pugh

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STATE OF CONNECTICUT v. MATTHEW PUGH
(AC 39688)
Lavine, Keller and Pellegrino, Js.
Syllabus
Convicted, after a jury trial, of the crimes of murder and burglary in the
first degree, the defendant appealed. The defendant’s conviction
stemmed from his alleged murder of his former girlfriend in her home.
At trial, the trial court admitted testimony from M, pursuant to the
applicable rule of evidence (§ 8-3 [2]), concerning statements made by
the victim during a telephone conversation on the day of the murder
relating to the unexpected presence of the defendant, her former boy-
friend, at her door. W, a Milford police detective, also testified, without
objection, that, to verify the defendant’s statements regarding his where-
abouts on the day of the murder, he and other police investigators spoke
with individuals from various car dealerships that the defendant claimed
to have visited, all of whom stated that they had no recollection of the
defendant visiting on that day. Held:
1. The trial court did not abuse its discretion by admitting, pursuant to
the spontaneous utterance exception to the rule against hearsay, M’s
testimony regarding the statements that he overheard the victim make
while they were on the telephone on the day of the murder; the record
supported that court’s finding that the victim’s statements were made
in such close connection to a startling occurrence and under such cir-
cumstances as to negate the opportunity for deliberation and fabrication,
as the subject statements were spontaneous and unreflective, and made
in response to the startling occurrence of the defendant’s unexpected
and unwanted appearance at the victim’s door, the victim made the
statements as the subject events unfolded, which negated the opportu-
nity for deliberation or fabrication, M testified that the victim was
annoyed and surprised when she made the statements, and there was
testimony that the victim feared the defendant and that he was the only
person the victim referred to as her ‘‘ex-boyfriend.’’
2. The defendant could not prevail on his unpreserved claim that the trial
court violated his constitutional right to confrontation by admitting W’s
testimony regarding the defendant’s alleged whereabouts on the day
of the murder, which he claimed constituted inadmissible testimonial
hearsay; even if the admission of the challenged testimony was improper,
the state met its burden of proving that any error was harmless beyond
a reasonable doubt, as the testimony was cumulative of unchallenged
testimony that had been presented to the jury and was consistent with
the state’s theory of the case, all of which provided a firm basis for the
jury to doubt the defendant’s version of events on the day of the victim’s
murder, and the state presented a strong case against the defendant by
demonstrating that he had devised a plan to kill the victim, that he was
in the area of or inside her home at approximately the time of her death,
and that a distinct type of tape, to which he had access, was used in
connection with her murder.
3. This court found unavailing the defendant’s claim that the trial court
committed plain error by failing to dismiss, sua sponte, the charge of
burglary in the first degree, which he alleged had been brought beyond
the applicable statute of limitations: the defendant was not entitled to
reversal of his burglary conviction under the plain error doctrine, as he
waived a statute of limitations affirmative defense by failing to raise it
at trial and, therefore, was barred from raising such a defense on appeal;
furthermore, the defendant did not provide this court with any control-
ling authority indicating that it was the responsibility of the trial court,
sua sponte, to dismiss a criminal charge that had been brought beyond
the applicable statute of limitations.
Argued April 10—officially released September 19, 2017
Procedural History
Substitute information charging the defendant with
the crimes of murder and burglary in the first degree,
brought to the Superior Court in the judicial district of
Ansonia-Milford and tried to the jury before Markle, J.;
verdict and judgment of guilty, from which the defend-
ant appealed. Affirmed.
Damian Gunningsmith, with whom, on the brief,
was John L. Cordani, Jr., for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, was Kevin D. Lawlor, state’s attor-
ney, for the appellee (state).
Opinion
LAVINE, J. The principal issue in this appeal is
whether the trial court improperly admitted into evi-
dence, under the spontaneous utterance exception to
the rule against hearsay, statements made by the victim
relating to the unexpected presence of her former boy-
friend, the defendant Matthew Pugh, whom she feared.
The defendant appeals from his conviction, following
a jury trial, of murder in violation of General Statutes
§ 53a-54a (a) and burglary in the first degree in violation
of General Statutes § 53a-101 (a) (2). On appeal, the
defendant claims that the trial court: (1) abused its
discretion by admitting into evidence statements made
by the victim pursuant to the spontaneous utterance
exception to the rule against hearsay; (2) erroneously
admitted into evidence testimonial hearsay in violation
of his rights under the confrontation clause of the sixth
amendment to the federal constitution by permitting
a police investigator to testify as to certain witness
statements regarding the defendant’s claimed where-
abouts on the day of the murder; and (3) committed
plain error when it did not dismiss, sua sponte, the
burglary in the first degree charge, which had been
brought beyond the applicable statute of limitations.
We affirm the judgment of the trial court.
By way of long form information, the state charged
the defendant with murder and burglary in the first
degree. These charges stemmed from the death of Alex-
andra Duscay, the victim, whose body was found by
her mother, Linda Duscay, in their Milford home at
approximately 4:30 p.m. on May 19, 2006. An autopsy
revealed that the victim died as a result of blunt force
trauma and stab wounds to her head. Following the
jury’s verdict of guilty on both counts, the trial court
sentenced the defendant to a term of imprisonment of
sixty years on the murder conviction and a concurrent
sentence of twenty years on the burglary conviction,
for a total effective sentence of sixty years to serve.
This appeal followed. Additional facts will be set forth
as necessary.
I
We begin with the defendant’s first claim challenging
the trial court’s admission of the victim’s statements
under the spontaneous utterance exception to the rule
against hearsay. Specifically, the defendant challenges
the testimony of Jermaine Morton, who testified that
the victim stated, during a telephone call on May 19,
2006, that her ‘‘ex-boyfriend’’ was at the door and ‘‘what
are you doing here? You were supposed to call first.’’
The defendant argues that the ‘‘nonviolent’’ arrival of
a former boyfriend is not the type of startling event
that would shock and overwhelm the senses and that
statements made in relation to that event are not free
from the opportunity to deliberate or fabricate.1 We
disagree.
The following additional facts, which the jury reason-
ably could have found, and procedural history are rele-
vant to the resolution of the defendant’s claim. The
victim met the defendant when she was a teenager.
The two became romantically involved, and the victim
considered the defendant her boyfriend. Although the
defendant was sentenced to prison in 1998, he and the
victim continued to communicate with one another.
During the defendant’s incarceration, however, the
victim began to distance herself from him, finding the
relationship stressful. She ultimately decided to end the
relationship just prior to the defendant’s release from
prison in 2004. Soon after the defendant was released
on August 6, 2004, the victim told her brother, Erik
Terranova, that she feared the defendant. Nicole Wil-
liamson, a close friend of the victim, also testified that
the victim even worried that the defendant might be
hiding in the bushes when she returned home at night.
According to family and friends, the defendant was
the only individual whom the victim referred to as her
‘‘ex-boyfriend.’’
At approximately 12:30 p.m. on May 19, 2006, the
victim, while at home in Milford, placed a call to Morton,
whom she had been dating for a few weeks. At trial,
the state called Morton to testify regarding the state-
ments he overheard the victim make during this phone
call. In an offer of proof made outside of the presence
of the jury, Morton testified that, during their conversa-
tion, ‘‘she told me to hold on, and she said someone
was at her door. I could actually hear her in the back-
ground say what are you doing here? You were sup-
posed to call first. She got back on the phone. She told
me not to—she would call me right back. She called
me back about ten to twenty—five to twenty minutes,
or whatever, and after that she didn’t say anything. She
just talked about—we had another regular conversa-
tion. She didn’t sound hurt or she didn’t sound anything
like that, so I didn’t take alarm of anything, so.’’2
(Emphasis added.) After reviewing the written state-
ment that he gave to police on May 19, 2006, Morton
further testified that the victim informed him that her
‘‘ex-boyfriend’’ was the individual at the door.3 The
court asked Morton to describe the ‘‘nature’’ of the
victim’s statements, and Morton testified that the victim
was ‘‘annoyed’’ and ‘‘surprised that [the defendant]
was there.’’
Over the defendant’s objection, the court admitted
Morton’s testimony recounting the victim’s statements,
concluding that the statements: (1) followed the star-
tling event of an unannounced appearance of an individ-
ual; (2) related to that appearance; (3) demonstrated
the victim’s direct observation of the individual’s
appearance; and (4) were reliable because they were
made under circumstances during which the declarant
did not have time to fabricate her observations.
Before we address the defendant’s claim, we set forth
the applicable legal principles. ‘‘An out-of-court state-
ment offered to prove the truth of the matter asserted
is hearsay and is generally inadmissible unless an excep-
tion to the general rule applies. . . . Among the recog-
nized exceptions to the hearsay rule is the spontaneous
utterance exception, which applies to an utterance or
declaration that: (1) follows some startling occurrence;
(2) refers to the occurrence; (3) is made by one having
the opportunity to observe the occurrence; and (4) is
made in such close connection to the occurrence and
under such circumstances as to negate the opportunity
for deliberation and fabrication by the declarant. . . .
[T]he ultimate question is whether the utterance was
spontaneous and unreflective and made under such
circumstances as to indicate absence of opportunity
for contrivance and misrepresentation. . . . Whether
an utterance is spontaneous and made under circum-
stances that would preclude contrivance and misrepre-
sentation is a preliminary question of fact to be decided
by the trial judge. . . . The trial judge exercises broad
discretion in deciding this preliminary question, and
that decision will not be reversed on appeal absent an
unreasonable exercise of discretion.’’ (Citations omit-
ted; footnote omitted; internal quotation marks omit-
ted.) State v. Wargo, 255 Conn. 113, 127–28, 763 A.2d
1 (2000); see also Conn. Code Evid. § 8-3 (2).
To be admissible as a spontaneous utterance, ‘‘[t]he
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.’’ (Internal quotation marks omitted.) State
v. Kirby, 280 Conn. 361, 374, 908 A.2d 506 (2006); see
also Perry v. Haritos, 100 Conn. 476, 483–85, 124 A. 44(1924) (statement deemed trustworthy because it ‘‘is
made under the immediate and uncontrolled domina-
tion of the senses’’ [internal quotation marks omitted]).
In reviewing the defendant’s claim, we bear in mind
that ‘‘whether a statement is truly spontaneous as to
fall within the spontaneous utterance exception [is]
. . . reviewed with the utmost deference to the trial
court’s determination.’’ State v. Saucier, 283 Conn. 207,
219, 926 A.2d 633 (2007).
It appears that the defendant is challenging both the
first and fourth elements of a spontaneous utterance,
namely, whether the victim’s statement ‘‘followed some
startling occurrence’’ and whether her statement was
‘‘made in such close connection to the occurrence and
under such circumstances as to negate the opportunity
for deliberation and fabrication by the declarant.’’ State
v. Wargo, supra, 255 Conn. 127. On the basis of our
review of the record, we conclude that the trial court
did not abuse its discretion by admitting Morton’s testi-
mony regarding the statements that he overheard the
victim make while on the phone.
Connecticut courts have had numerous opportunities
to assess the types of ‘‘startling events’’ that can gener-
ate the kind of nervous excitement or uncontrolled
outbursts captured by the spontaneous utterance
exception to the rule against hearsay.4 At the outset,
we appreciate the fact that the unannounced presence
of an individual at one’s door, in and of itself, may not
appear to be among the usual set of circumstances
envisioned when evaluating whether a statement is, or
is not, admissible as a spontaneous utterance. Although
this court has previously suggested that certain events
lack the ‘‘trauma necessary to negate the opportunity
for deliberation and fabrication’’; (internal quotation
marks omitted) State v. McNair, 54 Conn. App. 807,
813, 738 A.2d 689, cert. denied, 251 Conn. 913, 739 A.2d
1249 (1999); ‘‘the application of the exception entails a
uniquely fact bound inquiry.’’ State v. Westberry, 68
Conn. App. 622, 628, 792 A.2d 154, cert. denied, 260
Conn. 923, 797 A.2d 519 (2002). Thus, whether a state-
ment qualifies as a spontaneous utterance requires a
case-by-case assessment of the particular facts and cir-
cumstances surrounding the subject statement. See,
e.g., State v. Kirby, supra, 280 Conn. 375. In other words,
context is crucial.
With that in mind, we conclude that the record clearly
supports the trial court’s finding that the victim’s state-
ments were ‘‘made in such close connection to [a star-
tling] occurrence and under such circumstances as to
negate the opportunity for deliberation and fabrication
. . . .’’ State v. Wargo, supra, 255 Conn. 127. At the time
that the state proffered Morton’s testimony, the state
presented ample evidence from the victim’s family that
the victim feared the defendant. Her close friend, Wil-
liamson, testified that the victim was concerned that
the defendant might be hiding in the bushes when she
returned home. Morton also described the victim as
being ‘‘annoyed’’ and ‘‘surprised’’ when she made the
subject statements. Under the circumstances of the pre-
sent case, the trial court did not abuse its discretion
by concluding that the defendant’s unexpected and
unwanted appearance at the victim’s doorstep star-
tled her.5
Additionally, the court heard testimony that the
defendant was the only person the victim referred to
as her ‘‘ex-boyfriend,’’ and the victim made these state-
ments as the defendant was at her door. Thus, the
record supports a finding that the victim made these
statements as events unfolded, negating the opportunity
to deliberate or fabricate. See State v. Silver, 126 Conn.
App. 522, 526, 535–36, 12 A.3d 1014 (declarant’s
recorded statement to 911 dispatcher made as he
observed erratic driver crash into center median and
flee), cert. denied, 300 Conn. 931, 17 A.3d 68 (2011);
State v. Torelli, 103 Conn. App. 646, 662, 931 A.2d 337(2007) (declarant startled by erratic driver and his state-
ments ‘‘were made in the course of an ongoing
urgent situation’’).
We conclude that the court did not abuse its discre-
tion in determining that the victim’s statements were
spontaneous, unreflective, and made in response to a
startling occurrence that overwhelmed her senses.6
II
The defendant next claims that the court violated his
right to confrontation under the sixth amendment to
the federal constitution when it admitted testimonial
hearsay into evidence.7 More specifically, he argues that
the testimony of a detective from the Milford Police
Department (department) was inadmissible testimonial
hearsay under Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The state argues
that the record is inadequate to determine whether the
hearsay statements were testimonial in nature and that,
regardless, any error in admitting the challenged testi-
mony was harmless beyond a reasonable doubt.8
Because we agree that the error, if any, was harmless,
we need not address the state’s argument that the
record is inadequate to review the defendant’s claim.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to the
defendant’s claim. After his release from prison in 2004,
the defendant began a romantic relationship with Char-
ise Trotman. The defendant lived with Trotman and her
teenaged daughter, Chamira Trotman-Adams, in Ham-
den on May 19, 2006.
During their inquiry into the circumstances of the
victim’s death, investigators from the department ques-
tioned the defendant about his whereabouts on May 19,
2006. The investigators first questioned the defendant
at approximately 5:30 p.m. that evening. In response to
their questions, the defendant said that he had been at
Chromalloy, his place of employment, all day and
denied visiting Milford that day. He later informed the
investigators that he left Chromalloy early to check on
Adams, who had been suspended from school, arrived
home just before 10 a.m., lifted weights until about 11
a.m., and then went car shopping around the greater
Hamden, New Haven, and Milford vicinities. Although
Adams was at home in Hamden when the defendant
claimed to have returned, she did not see or hear him.
The state called Steven Wydra, a detective in the
department, during its case-in-chief to testify regarding
the investigation of the victim’s murder. According to
Wydra, his team visited various car dealerships and
used car lots in the Hamden and New Haven areas,
noting that ‘‘[e]veryone we talked to at the car dealer-
ships said that they had no recollection of someone
matching [the defendant’s] description [visiting on May
19, 2006].’’ The state did not call as witnesses the individ-
uals at the car dealerships. Wydra later confirmed the
substance of this testimony in response to questions
posed by the state regarding a follow-up interview with
the defendant that took place on May 26, 2006. Shortly
after Wydra testified regarding his discussions with the
individuals at the car dealerships, the following
exchange took place:
‘‘[The Prosecutor]: Did you also speak with [the
defendant] regarding the used car lots that he had been
visiting that afternoon?
‘‘[Wydra]: Yes. I had explained to him that we had
gone to these car lots and they said that they had not
seen him. So I asked him again—actually, I asked if he
would actually go with us to the car lots and show us
which car lots because there were like three or four of
them on the corners that he talked about.
‘‘[The Prosecutor]: So did he assist you in doing that?
Did he bring you out and say hey, this is where I was?
‘‘[Wydra]: No, he did not.’’ (Emphasis added.)
On appeal, the defendant claims that admitting
Wydra’s testimony that ‘‘[e]veryone we talked to at the
car dealerships said that they had no recollection of
someone matching [the defendant’s] description [vis-
iting on May 19, 2006]’’ violated his right to confronta-
tion. The defendant concedes that he did not object
to the introduction of the challenged testimony and,
therefore, seeks review under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified in
In re Yasiel R., 317 Conn. 773, 780–81, 120 A.3d 1188(2015). ‘‘[A] defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all the following
conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitu-
tional 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 harmlessness beyond a rea-
sonable doubt. In the absence of any one of these condi-
tions, 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.
Even if we assume, which we do not, that a violation
of the defendant’s right to confrontation exists on this
record based on the challenged portion of Wydra’s testi-
mony, we conclude that the state has met its burden
of proving that any error was harmless beyond a reason-
able doubt. ‘‘It is well established that a violation of
the defendant’s right to confront witnesses is subject
to harmless error analysis . . . . The state bears the
burden of proving that the error is harmless beyond a
reasonable doubt. . . . Whether such error is harmless
in a particular case depends upon a number of factors,
such as the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumula-
tive, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on mate-
rial points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case. . . . Most importantly, we must
examine the impact of the evidence on the trier of fact
and the result of the trial. . . . If the evidence may
have had a tendency to influence the judgment of the
jury, it cannot be considered harmless.’’ (Citations omit-
ted; emphasis added; internal quotation marks omitted.)
State v. Smith, 289 Conn. 598, 628, 960 A.2d 933 (2008).
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . .’’ (Emphasis in original; internal quotation marks
omitted.) State v. Sinclair, 173 Conn. App. 1, 10, 162
A.3d 43, cert. granted on other grounds, 326 Conn. 904,
A.3d (2017).
The jury reasonably could have found the following
relevant facts. While investigating the crime scene on
May 19, 2006, investigators observed black tape on the
victim’s face. Frank Gall, a detective from the depart-
ment, determined that a company named ‘‘Permacel’’
manufactured the tape found on the victim’s face, and
described it as being ‘‘somewhat out of the ordinary.’’
Notably, Chromalloy used Permacel tape due to its
durable qualities. Tests by forensic trace evidence
experts also revealed that the tape on the victim’s face
possessed ‘‘similar physical and instrumental character-
istics’’ to tape seized from the defendant’s residence
on May 26, 2006. Of particular significance, prior to
the victim’s death, the defendant informed his cousin,
Anthony Pugh, that he ‘‘wanted to kill [the victim]’’ and
planned to use tape and other ‘‘stuff from work’’ so that
there would be no evidence left behind.
The state introduced evidence of the defendant’s
whereabouts prior to the victim’s death. Andrew
Weaver, a sergeant from the Hartford Police Depart-
ment, testified for the state regarding ‘‘call data record
mapping.’’9 Using cell phone data from the defendant’s
phone records on May 19, 2006, Weaver determined
that the defendant was in close proximity to the victim’s
Milford home hours before her mother found her body.
Additionally, Michael Shuckerow, a neighbor of the vic-
tim at the time of her death, testified that he saw a
vehicle similar to one owned by the defendant parked
on the victim’s street and driving near her address on
May 18 and 19, 2006, between 12 p.m. and 2 p.m. on both
days. Shuckerow also made an in-court identification
of the defendant as the individual operating the vehicle
that he observed. Nicholas Yang, a forensic science
examiner, also testified as a witness for the state regard-
ing certain DNA evidence taken from the crime scene.
Yang testified that the DNA evidence collected from
the bathroom sink and toilet in the victim’s home was
either consistent with the defendant’s DNA profile, or
that his DNA profile could not be eliminated as a con-
tributor.
On the basis of our review of the record, we conclude
that the challenged testimony was cumulative of
Wydra’s subsequent testimony and also corroborated
other testimony presented to the jury.10 The sole testi-
mony that the defendant claims violated his right to
confrontation is Wydra’s statement that ‘‘[e]veryone we
talked to at the car dealerships said that they had no
recollection of someone matching [the defendant’s]
description [visiting on May 19, 2006].’’ The defendant
does not challenge Wydra’s testimony that ‘‘I had
explained to [the defendant] that we had gone to these
car lots and they said that they had not seen him.’’
(Emphasis added.) The challenged testimony is thus
essentially cumulative of unchallenged testimony
before the jury. Additionally, Wydra’s testimony was
consistent with the state’s theory of the case and the
testimony of Adams, Weaver, and Shuckerow, all of
which provided a firm basis for the jury to doubt the
defendant’s version of events on May 19, 2006.
Finally, the state presented a strong case against the
defendant, even if some of the evidence was circum-
stantial. See, e.g., State v. Edwards, 325 Conn. 97, 137,
156 A.3d 506 (2017) (‘‘[i]t is immaterial to the probative
force of the evidence that it consists, in whole or in part,
of circumstantial rather than direct evidence’’ [internal
quotation marks omitted]). Because the victim’s
autopsy revealed that she died as a result of multiple
stab wounds and blunt trauma to her head, the critical
issue for the state was to establish the identity of the
perpetrator. The state presented a strong case identi-
fying the defendant as the perpetrator by demonstrating
that he devised a plan to kill the victim, that he was in
the area of or inside her home at approximately the
time of her death, and that a distinct type of tape, to
which he had access, was used in connection with
her death.11
Having reviewed the record in its entirety, we con-
clude that Wydra’s testimony that ‘‘[e]veryone we talked
to at the car dealerships said that they had no recollec-
tion of someone matching [the defendant’s] description
[visiting on May 19, 2006]’’ had no discernible effect on
the outcome of the trial. This testimony was largely
cumulative, not essential to the state’s case, and paled
in comparison to other evidence connecting the defend-
ant to the victim’s murder. We conclude that any impro-
priety in admitting the challenged testimony was
harmless beyond a reasonable doubt, and, accordingly,
the defendant’s claim fails under the fourth prong of
Golding.
III
The defendant’s final claim is that the trial court
committed plain error when it did not dismiss, sua
sponte, the burglary in the first degree charge, which
had been brought beyond the applicable statute of limi-
tations. In response, the state argues that the statute
of limitations is an affirmative defense that must be
pleaded and proven by the defendant at trial. We agree
with the state.
The following facts and procedural history are rele-
vant to this claim. The charge of burglary in the first
degree stemmed from the victim’s murder on May 19,
2006. A warrant for the defendant’s arrest issued on
August 24, 2012, and the defendant was arrested on
September 5, 2012. Because burglary in the first degree
is a class B felony, the five year statute of limitations
applied and the charge against the defendant should
have been brought by May 19, 2011. See General Stat-
utes §§ 53a-35a (6), 53a-101 (c), and 54-193 (b).12
‘‘[An appellant] cannot prevail under [the plain error
doctrine] . . . unless he demonstrates that the claimed
error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injus-
tice.’’ (Emphasis in original; internal quotation marks
omitted.) State v. McClain, 324 Conn. 802, 812, 155 A.3d
209 (2017); see Practice Book § 60-5. Moreover, ‘‘a clear
and obvious mistake on the part of the trial court is a
prerequisite for reversal under the plain error doctrine
. . . .’’ State v. Coward, 292 Conn. 296, 307, 972 A.2d
691 (2009).
The defendant concedes that he did not raise at trial
a statute of limitations defense to the burglary in the
first degree charge. Having failed to assert this defense
at trial, the defendant is deemed to have waived such
defense and is, therefore, barred from raising it on
appeal. See, e.g., State v. Coleman, 48 Conn. App. 260,
268–69, 709 A.2d 590 (1998) (defendant waived statute
of limitations defense by not raising it at trial and, there-
fore, defendant barred from raising it on appeal), aff’d,
251 Conn. 249, 741 A.2d 1 (1999), cert. denied, 529 U.S.
1061, 120 S. Ct. 1570, 146 L. Ed. 2d 473 (2000); see also
State v. Middlebrook, 51 Conn. App. 711, 713 n.4, 725
A.2d 351 (‘‘statute of limitations is not a jurisdictional
bar to prosecution; it is an affirmative defense, which
must be raised and can be waived’’), cert. denied, 248
Conn. 910, 731 A.2d 310 (1999); Practice Book §§ 41-2
and 41-4.13 Moreover, the defendant has not provided
us with any controlling authority, and we are unaware
of any, indicating that it is the responsibility of the trial
court, sua sponte, to dismiss criminal charges that are
brought beyond the applicable statute of limitations.
Cf. State v. Crawford, 202 Conn. 443, 451, 521 A.2d 1034(1987) (defendant bears burden of proving statute of
limitations affirmative defense); State v. Woodtke, 130
Conn. App. 734, 740, 25 A.3d 699 (2011) (same).14 Having
failed to raise his statute of limitations defense at trial,
we are compelled to conclude, in light of our case law
and applicable rules of practice, that the defendant is
not entitled to reversal of his conviction for burglary
in the first degree under the plain error doctrine in
this proceeding.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also argues that the court committed legal error by ‘‘boot-
strapping’’ hearsay evidence into an exception to the hearsay rule when it
relied on the contents of the victim’s statements as proof that the statements
fit within the parameters of a spontaneous utterance, namely, in determining
whether a startling event occurred. We decline to review this particular
claim because it was not distinctly raised at trial. See, e.g., State v. Rosado,
134 Conn. App. 505, 516 n.3, 39 A.3d 1156 (declining to review defendant’s
claim, raised for first time on appeal, that certain evidence fell within identifi-
cation exception to hearsay rule), cert. denied, 305 Conn. 905, 44 A.3d 181(2012); see also Practice Book §§ 5-2, 5-5, and § 60-5.
2
After providing this testimony, the court asked Morton, ‘‘what exactly
did you hear her say?’’ In response, Morton stated: ‘‘Well, she told me to
hold on because someone was at her door. I could hear her in the background
saying what are you doing here? You were supposed to actually call first.
So, that’s when she got back on the phone and she told me I’ll call you right
back. She called me back; we talked. She didn’t say anything happened or
nothing like that. That is basically it.’’ (Emphasis added.)
3
Morton’s testimony was admitted in accordance with State v. Whelan,
200 Conn. 743, 752, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597,
93 L. Ed. 2d 598 (1986). On appeal, the defendant does not challenge the
admission of Morton’s testimony in accordance with Whelan.
4
See, e.g., State v. Slater, 285 Conn. 162, 179, 939 A.2d 1105 (declarant
raped at knifepoint), cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed.
2d 822 (2008); State v. Kirby, supra, 280 Conn. 376 (declarant assaulted,
tied up, and kidnapped); State v. Wargo, supra, 255 Conn. 126–27 (children
watched house burn after father killed their mother); Perry v. Haritos,
supra, 100 Conn. 483–85 (declarant driver hit pedestrian with vehicle); State
v. Serrano, 123 Conn. App. 530, 537–38, 1 A.3d 1277 (2010) (declarant
observed assault with blunt object), cert. denied, 300 Conn. 909, 12 A.3d
1005 (2011); State v. Nelson, 105 Conn. App. 393, 407, 937 A.2d 1249 (declarant
robbed, burned, beaten, threatened with murder, tied up, and driven around),
cert. denied, 286 Conn. 913, 944 A.2d 983 (2008); State v. Thomas, 98 Conn.
App. 384, 387–88, 909 A.2d 57 (2006) (declarant discovered murder weapon),
cert. denied, 281 Conn. 906, 916 A.2d 47 (2007); State v. Westberry, 68 Conn.
App. 622, 626–32, 792 A.2d 154 (declarant heard gunshots and saw victim
‘‘hit the ground’’), cert. denied, 260 Conn. 923, 797 A.2d 519 (2002).
5
We find support for this conclusion in State v. Reynolds, 152 Conn. App.
318, 347–48, 97 A.3d 999, cert. denied, 314 Conn. 934, 102 A.3d 85 (2014),
in which this court held that the victim’s statements to a 911 operator
regarding the unexpected appearance of a former boyfriend were spontane-
ous utterances. Although the defendant correctly observes that Reynolds
involved the appearance of a former boyfriend who was acting violently,
that distinguishing feature is not dispositive of the present case. ‘‘[T]he
application of the exception entails a uniquely fact bound inquiry.’’ State v.
Westberry, supra, 68 Conn. App. 628. In the present case, even if the defend-
ant did not behave in a violent manner, his sudden appearance at the victim’s
doorstep overwhelmed her senses based on her fear of the defendant and
her expectation that he would call first. Thus, his appearance was sufficiently
unnerving to be considered a ‘‘startling event.’’
6
Even if we were to assume that the trial court erred in admitting the
victim’s statements, the defendant would not be entitled to a new trial,
as he failed to demonstrate that the nonconstitutional evidentiary error
substantially affected the verdict. See, e.g., State v. Edwards, 325 Conn. 97,
133, 156 A.3d 506 (2017) (noting that defendant bears burden of demonstra-
ting nonconstitutional evidentiary error harmful). Although the victim’s
statements to Morton placed the defendant at the victim’s home hours before
her mother discovered her body, the defendant has not challenged on appeal
the introduction of other evidence placing him in close proximity to her
home around the time of her murder. See part II of this opinion. The victim’s
statements to Morton merely corroborated such unchallenged circumstantial
evidence that connected the defendant to the victim’s murder.
7
The sixth amendment to the United States constitution provides in rele-
vant part that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him . . . .’’ The
defendant does not provide a separate argument under the Connecticut con-
stitution.
8
The state, relying on State v. Benedict, 313 Conn. 494, 505–508, 98 A.2d 42(2014), also argues that we should not review the defendant’s confrontation
claim. Specifically, the state argues that, ‘‘by waiting until appeal to raise
his confrontation claim, the defendant ambushes the state.’’ According to
the state, Benedict ‘‘cast[s] doubt on the vitality of [State v. Smith, 289
Conn. 598, 960 A.2d 993 (2008)].’’ As the state concedes, our Supreme Court
has not overruled Smith. In accordance with that decision, unpreserved
claims that the trial court violated the defendant’s right to confrontation
are reviewable under State v. Golding, 213 Conn. 239–40, 567 A.2d 823(1989), when an adequate record exists. See State v. Smith, supra, 289
Conn. 620–21.
9
According to Andrew Weaver, ‘‘[c]all data record mapping is when you
actually take the call data record or the record of your phone calls and we
can visualize that on a map. We can show where you were or where your
handset was when you utilized your cellular carrier service to either place
or receive a phone call.’’
10
The defendant testified on his own behalf. On cross-examination, he
testified as follows with respect to his visits to used car dealerships on May
19, 2006.
‘‘Q. And I believe that you testified on direct examination that you—that
you did not talk with any salesmen, right?
‘‘A. No, no salesmen.
‘‘Q. Okay. I believe your testimony was you didn’t want anybody bothering
you, correct?
‘‘A. No, I was just looking.
‘‘Q. Okay. And yes or no, did anybody come out and say ‘hey, there’s a
beauty right there; would you like to know how many miles are on it’?
‘‘A. No. It was damp outside.
‘‘Q. Nobody said that?
‘‘A. No, it was damp outside. Nobody was out there.
‘‘Q. So nobody came out to see you, correct?
‘‘A. Nobody was out there.
‘‘Q. Right. Nobody at any of these car dealerships, nobody at any car—
used car dealership, of the five that you went to, not one did somebody
come out and say ‘hey, can I help you with that’?’’
11
We are also unpersuaded by the defendant’s argument that admitting
Wydra’s testimony was not harmless beyond a reasonable because the prose-
cutor repeatedly referenced it during closing argument. See, e.g., State v.
Thompson, 266 Conn. 440, 456, 832 A.2d 626 (2003) (improperly admitted
testimony deemed harmless, in part, because ‘‘the state’s attorney did not
emphasize or rely upon the testimony during closing argument’’). Although
the prosecutor referred to Wydra’s testimony regarding the various car
dealerships and used car lots that Wydra and his team visited, the prosecu-
tor’s comments, when read in context, were in reference to the prosecutor’s
broader argument that the cumulative effect of the evidence presented at
trial revealed that the defendant’s entire story was false, not simply his
statements to police that he visited various car dealerships and used car lots.
12
The record does not reflect why the state chose to pursue the burglary
in the first degree charge after the statute of limitations had run. We note,
however, that the state, on April 15, 2008, requested that ‘‘a reward be
posted’’ in connection with the victim’s murder because ‘‘the police [had]
not been able to develop sufficient evidence to arrest anyone.’’ On April 22,
2008, Governor M. Jodi Rell approved the state’s request in accordance
with General Statutes § 54-48. Thereafter, on June 19, 2008, Anthony Pugh
‘‘informed police that his cousin, [the defendant], indicated that he wanted
to kill [the victim] and would use items from work including tape, smocks
and booties in order to avoid detection.’’ Notwithstanding Anthony Pugh’s
June 19, 2008 statement, an arrest warrant was not issued until August 24,
2012. Thus, it appears that the investigation into the victim’s death remained
dormant for a period of time.
13
Practice Book § 41-2 provides that ‘‘[a]ny defense, objection or request
capable of determination without a trial of the general issue may be raised
only by a pretrial motion made in conformity with this chapter.’’ ‘‘This broad
provision makes clear that any defense, objection, or request capable of
determination without trial must be raised by pre-trial motion in conformity
with this Chapter.’’ (Emphasis in original.) D. Borden & L. Orland, 4 Connecti-
cut Practice Series; Criminal Procedure, (4th Ed. 2007) § 41-2, p 345.
Practice Book § 41-4 provides in relevant part that ‘‘[f]ailure by a party,
at or within the time provided by these rules, to raise defenses . . . that
must be made prior to trial shall constitute a waiver thereof, but a judicial
authority, for good cause shown, may grant relief from such waiver . . . .’’
14
We are unpersuaded by the defendant’s argument and reliance on State
v. Marrero, 66 Conn. App. 709, 785 A.2d 1198 (2001) and State v. Kulmac,
230 Conn. 43, 644 A.2d 887 (1994), that waiver does not apply in the present
case. In Marrero, this court held that it was plain error for the trial court
not to provide an adequate instruction on a ‘‘drug-dependent person’’ within
the meaning of General Statutes §§ 21a-278 and 21a-278a. See State v. Mar-
rero, supra, 720–24. Central to that decision, however, was this court’s
observation that, when instructing the jury, ‘‘[i]t is the function of the court
to state the rules of law and to explain the law to be applied to the facts
of the case . . . .’’ (Emphasis added.) Id., 723. In Kulmac, our Supreme
Court held that it was not plain error to convict the defendant of various
sexual assault and risk of injury of a child offenses when it was unclear
whether General Statutes § 53a-69 barred the challenged offenses. State v.
Kulmac, supra, 78. The court in Kulmac did not squarely address the argu-
ment raised by the state in the present case, which is that the defendant
waived his statute of limitations defense by failing to raise or prove it at
trial. Compare id., 76–78, with State v. Coleman, supra, 48 Conn. App. 268–69.
Both Marrero and Kulmac, therefore, are legally and factually distinguish-
able from the present case.