State v. Dubuisson

183 Conn.App. 62

191 A.3d 229

STATE of Connecticut

v.Walker Wilner DUBUISSON

AC 39685

Appellate Court of Connecticut.

Argued March 12, 2018

Officially released June 26, 2018

Peter Tsimbidaros, assigned counsel, for the appellant (defendant).

Linda F. Currie–Zeffiro, assistant state's attorney, with whom were Anne F. Mahoney, state's attorney, and Mark A. Stabile, supervisory assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Sheldon and Prescott, Js.

SHELDON, J.

The defendant, Walker Wilner Dubuisson, appeals from the judgment of conviction rendered by the trial court, following a jury trial, on the charge of strangulation in the second degree in violation of General Statutes § 53a–64bb. The defendant claims that (1) the evidence was insufficient to support his conviction and (2) the trial court erred in admitting certain out-of-court statements by the victim¹ under the spontaneous utterance exception to the hearsay rule. We affirm the judgment of the trial court.

The jury was presented with the following evidence on which to base its verdict. The victim testified that she met the defendant while he was an employee at a Walmart store in Massachusetts and she was participating in a manager training program at that store. Thereafter, they engaged in a six to eight month intimate relationship, during which he moved into her home in Connecticut. On the evening of February 22, 2015, the victim returned home after work to find that it had snowed in her absence, but the driveway was shoveled inadequately. She thus brought her things inside the house, then returned outside to finish shoveling the driveway. The defendant, who was home when the victim arrived, opened the door and began "yelling at" her for shoveling, insisting that he had shoveled already. When she ignored him and continued to shovel, the defendant opened the door once again and threw² the couple's dog outside. The victim ran into the street to retrieve the dog, which she brought inside to its crate in the bedroom.

Finding the defendant in the bedroom when she brought the dog inside, the victim began to yell at him for throwing the dog. According to the victim's testimony, he responded by approaching her, "push[ing] [her] left shoulder against the wall," "turn[ing her] around and ... lock[ing] his fingers into [her] trachea, then ... tak[ing] his whole hand around [her] neck and strangl[ing] [her]." The victim further testified that, while the defendant was holding her in this manner, she "couldn't breathe," she remembered "everything going black" and her body "go[ing] totally limp," and she "urinated [her]self ...." After he released her, she "told him to get his belongings and that the cops were coming and [to] leave [her] home." Although the defendant gathered up his belongings and carried them outside to his car, he did not drive away, but instead began to walk back and forth in the driveway. Because the victim, observing this behavior, felt "fearful that he was going to try to break a window or break [her] door," she called her son's friend, Dean Mayo, in an unsuccessful effort to contact her son, then called her own friend, Michelle Perez. Both Mayo and Perez responded to these calls by driving immediately to the victim's house.

Mayo arrived first. He testified at trial that he had decided to come over upon realizing that something was wrong because the victim sounded "frantic" and told him that she had gotten into a fight with the defendant. When he arrived, he saw the victim inside the house and the defendant outside in the driveway. The victim, he recalled, was "very emotional," crying and shaking, and her face and neck were "very red." Mayo was not asked by the police to give them a statement.

Perez testified that the victim sounded "fearful, very anxious" on the phone, and that her voice was "raspy ...." During the call, the victim described to Perez the events of the evening, starting from the time she had arrived home from work. Among other things, the victim told Perez that "she was hurt, [and] that [the defendant] had strangled her." When the victim told Perez that the defendant was still outside her home, Perez, who lived a twenty minute drive away from the victim, drove directly to the victim's house at the conclusion of the call. When she arrived, she noticed the defendant, whom she described at trial as "very tense and agitated," standing in the driveway outside of his car, which had a flat tire. When Perez asked the defendant what had happened, he responded first by "rambling" about the dog and the snow shoveling, then by calling the victim various "derogatory names." When she asked him whether he had put his hands on the victim and hurt her, he responded that he "put [his] hands on her. She's a crazy ‘b’ and she upset [him]." Perez told the defendant to leave because she would be calling the police, then went inside to check on the victim.

Perez described the victim's face and neck as red and stated that the victim had "clearly visible" finger marks around her neck. The victim told Perez that she was having a very hard time swallowing. After they discussed "the extent or the severity of [the victim's] possible injuries," Perez called the police. At 8:43 p.m., Connecticut State Police Trooper Trisha Marcaccio was dispatched to the victim's house. Trooper Joseph Marsh also was dispatched, separately. Marcaccio spoke to the defendant, who admitted that he had been in an argument with the victim and that he had pushed her, but denied that he had strangled her. Marcaccio then left Marsh outside with the defendant³ while she went inside to speak with the victim and Perez. Marcaccio observed that the victim had "fresh red marks" on her neck, "consistent with fingerprints from a hand." The victim told Marcaccio that the defendant had strangled her, rendering her unable to breathe for thirty to sixty seconds.⁴ Marcaccio photographed the injuries and took statements from the victim and Perez. After Marcaccio finished taking statements and photographs, she went outside and instructed Marsh to arrest the defendant⁵ and to transport him to the state police barracks for processing. Marcaccio also called an ambulance, but the victim refused transport. Perez later drove the victim to the Backus Plainfield Emergency Care Center, where she was admitted at 10:32 p.m.

In the emergency department, the victim received a visual physical examination, computerized axial tomography (CT) scans, and X-rays. Her X-rays were entirely normal, and her CT scans revealed normal glands and lungs, no bruising, no fluid collection or swelling, and no compromise of her airway. She reported tenderness and was prescribed an anti-inflammatory. In a follow-up appointment on February 24, 2015, with her primary care physician, Dr. Walter McPhee, the victim was diagnosed with inflammation of the trachea and anxiety, and prescribed an anti-inflammatory and a tranquilizer. She did not have bruising on her neck at the time, but McPhee did not find that unusual because she had indicated that she had been strangled two days prior to the examination.

In a substitute information, the defendant was charged with strangulation in the second degree. The jury found the defendant guilty. Following the verdict, on May 2, 2016, the defendant filed a motion for a judgment of acquittal, or, in the alternative, for a new trial in the interest of justice. The court denied that motion in its entirety. The defendant later was sentenced on his conviction of strangulation in the second degree to five years incarceration, execution suspended after fifteen months, followed by three years of probation with special conditions. The defendant then filed this appeal. Additional facts will be set forth as necessary.

I

We begin with the defendant's first claim, which challenges the sufficiency of the evidence to support his conviction.

"The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

"While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Morel , 172 Conn. App. 202, 214, 158 A.3d 848, cert. denied, 326 Conn. 911, 165 A.3d 1252 (2017).

"As we have often noted, however, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty.... Furthermore, [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.) State v. Edwards , 325 Conn. 97, 136–37, 156 A.3d 506 (2017).

Section 53a–64bb (a) provides: "A person is guilty of strangulation in...