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State v. Vega

Court of Appeals of Connecticut

May 1, 2018

STATE OF CONNECTICUT
v.
MIGUEL A. VEGA

          Argued December 4, 2017

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 carrying a pistol without a permit, brought to the Superior Court in the judicial district of New London, geographical 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).

          Lavine, Alvord and Bear, Js.

          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 Statutes § 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) improperly admitted hearsay statements from an unavailable witness in violation of his sixth and fourteenth amendment 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 Parrish. On March 2, present in the apartment in addition to those who reside dthere, 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 automatic 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 proceeded 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 apartment 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 apartment 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 unsuccessful, 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 homicide. Although Ellis' injuries were life-threatening, medical 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 interview, 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 defendant 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. Additionally, 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 contained 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 reasonable 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 discretion in admitting the following statements as spontaneous utterances: (1) statements that Kirkwood made during a telephone call that Officer Charles Flynn overheard, 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 admitted as a spontaneous utterance. We agree with the state.

         Our code of evidence defines a spontaneous utterance 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 utterances is well established. . . . Although [§] 8-3 (2) states the exception in terms different from that of the case law on which the exception is based . . . the rule assumes incorporation of the case law principles underlying 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 fabrication 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 occurrence. . . . 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 contrivance 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 determination, 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). Moreover, 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 reasonably could have found, and procedural history are relevant 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 ...


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