State v. Silver

126 Conn.App. 522

12 A.3d 1014

STATE of Connecticut

v.Mark S. SILVER.

No. 30829.

Appellate Court of Connecticut.

Argued Oct. 25, 2010.Decided Feb. 15, 2011.

Adele V. Patterson, senior assistant public defender, for the appellant (defendant).Adam E. Mattei, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Jonathan C. Benedict, former state's attorney, for the appellee (state).HARPER, ALVORD and PETERS, Js.PETERS, J.

Pursuant to the spontaneous utterance exception to the hearsay rule, as codified in Connecticut Code of Evidence § 8–3(2), a declarant's statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is admissible into evidence. See State v. Kelly, 256 Conn. 23, 41–42, 770 A.2d 908 (2001). The principal issue in this appeal is whether two declarants' calls to 911 emergency services were admissible under this doctrine without extrinsic evidence that the declarants had been speaking under the stress of a startling event. Because we are persuaded of the propriety of the trial court's evidentiary rulings, we affirm its judgment finding the defendant guilty as charged.

In a two count substitute information filed August 8, 2008, the state charged the defendant, Mark S. Silver, with attempt to commit murder in violation of General Statutes §§ 53a–49 and 53a–54a (a), and assault in the first degree in violation of General Statutes § 53a–59 (a).¹ After a jury trial, the defendant was found guilty on both counts and sentenced by the court to a total effective term of forty years incarceration. The defendant has appealed.

The jury reasonably could have found the following facts. Late in the evening of September 20, 2007, on Hollister Street in Stratford, the defendant became involved in a physical altercation with the victim, Edward Cox. Getting into a gold colored Mercury Sable registered to the victim, the defendant began driving toward the victim. After repeatedly hitting the victim with the car, the defendant severely injured the victim by pushing him under a chain-link fence.

The police were alerted to this incident by several observers at the scene of the crime, who dialed 911 for emergency services. When the defendant sped off, Mark Grass, who had earlier tried to intervene to help the victim, called 911 to report that he was following the defendant in his car. When both cars reached an intersection with a red traffic signal, Grass stopped, but the defendant continued through, going up over a curb and a lawn before continuing to speed away. Grass then returned to Hollister Street, where, speaking to the police officers who had responded to the emergency calls, he described what he had witnessed, including a description of the defendant as a black male wearing a white T-shirt and white head garb. That description was then broadcast by the police.

Shortly thereafter, Greg Gosselin, a tow-truck driver, just before leaving his place of employment on his way to a gasoline station, heard the police radio broadcast ² that described the defendant and his vehicle. En route, he noticed a car being operated erratically and realized that it matched the description broadcast by the police. The car stopped at the same gasoline station as Gosselin did, and he observed the defendant leave his vehicle and discard certain articles of clothing in the trash. Gosselin noted that the front end of the other driver's car had been damaged and that the license plate was displayed in the rear window rather than in the usual place for a license plate.

Believing the driver to be the individual described in the police radio broadcast, Gosselin called 911 to alert the authorities. He remained on the telephone with the emergency dispatcher as he followed the other car when it left from the gasoline station. He described seeing the car accelerate rapidly on the highway and ultimately crash into the center median divider. He reported then seeing the car's driver fleeing from the vehicle and running down the highway, attempting to get into other cars.

When police officers then arrived on the scene, they apprehended and arrested the defendant after a foot chase, a struggle and the use of an electric stun gun. Further facts will be set forth as necessary.

The defendant's appeal to this court challenges the validity of the trial court's rulings that admitted two sets of statements into evidence. The first ruling concerns the admission of pretrial incriminatory statements made by the defendant at Bridgeport Hospital, where he was transported after his arrest. The second ruling concerns the admission at trial of the 911 calls made by Grass and Gosselin. We are persuaded by neither claim of error.

I

Prior to trial, the defendant filed a motion to suppress incriminating statements that he had made to Bridgeport police Officer Clive Higgins at Bridgeport Hospital. The defendant had been transported there because, at the time of his arrest, he appeared to be semiconscious with his eyes rolling back in his head. Upon his arrival at the hospital, a nurse had administered an unidentified medication to the defendant that caused him to regain consciousness.

The court found that while strapped to a gurney in the hallway of the hospital, the defendant saw and called out to Higgins, who was walking through the emergency department. Higgins testified that he responded by asking the defendant, “what [are] you doing here?” The court further found that without any further prompting by Higgins, the defendant replied that he “had been partying with a friend who had taken some of his money and was supposed to pay him back. The defendant further stated that he had ‘kicked his ass' and [had run] him over with a car because he had robbed his money.” This conversation was observed by two Stratford police officers, David Evans and John Steedley.³

In his motion to suppress these statements at trial, the defendant claimed that his statements to Higgins, in the presence of Evans and Steedley, were inadmissible because they were the result of a custodial interrogation that had occurred prior to his having been informed of his constitutional right to avoid self-incrimination. The court denied the defendant's motion, holding that the question posed by Higgins did not constitute an interrogation because Higgins was not involved with the investigation, the defendant had initiated the contact, and Higgins' question “was neutral, spontaneous and does not reasonably suggest an intent to obtain a confession.”

On appeal, the defendant renews his claim that his statements to Higgins should have been suppressed because they resulted from a custodial interrogation to which he had improperly been subjected without having been informed of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He maintains that, because Higgins had previously arrested him, Higgins should have recognized that he was at the hospital in the custody of another police department. We disagree.

“As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... As we have noted previously, however, when a question of facts is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights, and the credibility of witnesses is not the primary issue, our customary deference to the trial court's factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court's factual findings are supported by substantial evidence.... [W]here 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 memorandum of decision....” (Internal quotation marks omitted.) State v. Bridges, 125 Conn.App. 72, 78–79, 6 A.3d 223 (2010).

“[T]he ultimate determination ... of whether a defendant already in custody has been subjected to interrogation ... presents a mixed question of law and fact over which [this court's] review is plenary, tempered by [a] scrupulous examination of the record to ascertain whether the findings are supported by substantial evidence.” (Internal quotation marks omitted.) State v. Acosta, 119 Conn.App. 174, 181, 988 A.2d 305, cert. denied, 295 Conn. 923, 991 A.2d 568 (2010). Because, in this case, the state concedes that the defendant was in custody and had not been informed of his constitutional right not to incriminate himself, the only issue before us on appeal is whether the defendant's statement to Higgins was a response to an interrogation.

“It is well established that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination. Miranda v. Arizona, [supra, 384 U.S. at 444, 86 S.Ct. 1602]. Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation....

“A defendant in custody is subject to interrogation not only in the face of express questioning by police but also when subjected to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.... Whether a defendant in custody is subject to interrogation necessarily involves determining first, the factual circumstances of the police conduct in...