Posts tagged with "evidentiary hearing"

Informant’s Statements in 911 Tapes Constituted “Spontaneous Utterances;” Admission in DUI Case Was Not Harmful Error

In a recent criminal law matter, the Appellate Court of Connecticut found that a trial court did not abuse its discretion by admitting into evidence 911 recordings that the defendant characterized as inadmissible hearsay.

On the date of the incident in question, a citizen informant called police to report a person, later identified as the defendant, he believed was driving under the influence. The informant provided information describing the car’s appearance, location, and direction of travel. When he crossed paths with a police officer, the informant conveyed this to the dispatcher, and the officer confirmed this statement. Before the officer initiated a traffic stop, he asked whether the informant was identifiable, though the dispatcher stated it was obtaining the information at that time.

The defendant was charged with operating a motor vehicle while under the influence (OMVUI) in violation of General Statutes § 14-227a. At an evidentiary hearing, prosecutors sought to admit into evidence the 911 call between the informant and dispatcher, but the defendant objected, arguing it was inadmissible testimonial hearsay. The court overruled the objection, stating the 911 call was admissible under the business record exception to the rule against hearsay. The defendant entered a conditional plea of nolo contendere and then appealed, arguing, in part, that admission of the 911 tape constituted harmful error.

“Hearsay” is an out-of-court statement offered for the truth of the matter asserted. It is generally inadmissible unless it falls under one of the limited exceptions, including business records. To be admitted under this exception, the record must meet three conditions: 1) the record was made “in the regular course of business;” 2) it was “the regular course of such business to make such a record;” and 3) the record was made “at the time of the act described in the report, or within a reasonable time thereafter.” However, in a previous case, the Supreme Court of Connecticut admonished a trial court’s decision to use the business records exception to admit a police report containing the hearsay statement of an anonymous informant. It noted that because citizens do not have a duty to report, “a recorded statement by a citizen must satisfy a separate hearsay exception.”

Eighteen years later, however, the Supreme Court of Connecticut concluded that a complainant’s statements in a 911 call were “admissible as spontaneous utterances pursuant to § 8-3 (2) of the Connecticut Code of Evidence.” This exception applies where: “(1) the declaration follows a startling occurrence, (2) the declaration refers to the 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.” In this case, the Appellate Court determined that all four conditions were satisfied: the informant was startled by the defendant’s erratic driving, relayed to dispatch what he personally observed “in the course of an ongoing urgent situation.” This lessened the likelihood that the informant contrived and misrepresented what he saw. Therefore, the trial court did not abuse its discretion by admitting the 911 tapes.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at

Written by Lindsay E. Raber, Esq.

Defendant’s Juror Misconduct Claim Rejected; Lower Court Did Not Abuse Its Discretion with Extent of Inquiry

In a recently posted article, a criminal defendant convicted of various gun charges failed on his insufficiency of the evidence claim. He further argued on appeal that the court improperly concluded that juror misconduct did not take place.

Essentially, the defendant claimed that a juror, T, did not believe there was enough evidence that the defendant committed assault. However, T changed his vote to guilty after another juror threatened to hang the jury on an attempted murder charge. The court held an evidentiary hearing, asking questions “which mainly focused on T’s recollection and awareness of the instructions on legal principles that had been given to the jurors prior to their deliberations.” T responded in the affirmative when asked these questions.

Thereafter, the court issued a memorandum that rejected the defendant’s claim of jury misconduct. It explained, in essence, it is only the final and formal conclusion that is considered, not a juror’s prior, private intentions:

Connecticut courts have consistently found that the expressions and arguments of jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations in arriving at a verdict are to be considered immaterial in claims of juror misconduct. To do otherwise would violate the sanctity of the juror process. …

It is the burden of the defendant to prove actual juror bias and misconduct that resulted in actual prejudice, where the trial court was not responsible. In this case, the defendant argued that the court’s inquiry was not sufficient because “the court did not ask the juror if he recalled the court’s instruction prohibiting consideration of punishment or the consequences of their verdict.”

The Appellate Court concluded that the court’s inquiry into whether juror misconduct occurred “was tailored properly to ascertaining this fact.” It noted that T confirmed that he recalled the relevant instructions given by the court before deliberations began. The court found no need to proceed any further, and to do so would constitute an abuse of discretion. “That the verdict may have been the result of compromise, or a mistake on part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” Therefore, this part of the defendant’s appeal was denied.

Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at

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State Court Cannot Vacate a FINRA Arbitration Award FINRA to Expunge Negative Information from a Broker’s Complaint History

State Court Cannot Vacate a FINRA Arbitration Award FINRA to Expunge Negative Information from a Broker’s Complaint History

Thomas F. Nee, Jr. v. Financial Industry Regulatory Authority, Inc., 29 Mass.L.Rptr. 437 (2012).

In a recent case before Massachusetts state court, Thomas F. Nee, Jr., (“Nee”) filed a complaint against the Financial Industry Regulatory Authority (“FINRA”) seeking an order that all references to a claim lodged against him by customers of the brokerage firm where he worked and the FINRA arbitration award in favor of these customers be expunged from the FINRA Central Registration Depository (“CRD”) database. FINRA filed a motion to dismiss Nee’s complaint on failure to state a claim upon which the court can grant relief. The court allowed FINRA’s motion.

The underlying dispute in this case arose in 2003 when customers of the brokerage firm that employed Nee asserted claims against him, two other employees and the brokerage firm. The customers alleged that their investments had been mismanaged and sought compensatory damages. Nee and the other respondents contested the customers’ claims, requested that these claims be dismissed, and also requested that the claims be expunged from their regulatory records. The National Association of Securities Dealers (“NASD”), the predecessor of FINRA, convened an evidentiary hearing before a panel of three arbitrators. In January 2005, the panel issued its decision, holding that Nee, one of his colleagues and the brokerage firm were jointly and severally liable to the claimants for compensatory damages in the amount of $187,628. With respect to Nee’s other colleague, the arbitration panel recommended expungement of all references to the claim and the arbitration from his CRD, but noted that he must obtain confirmation of the expungement from a court of competent jurisdiction. Nee took no action to challenge the arbitration award until he filed the instant complaint in July 2011.

In his complaint, Nee asked the court to order FINRA to expunge any reference to the customers’ claim and the arbitration award from his CRD. He complained that the arbitration award did not explain the reasons for the panel’s decision and that the arbitration panel erred in finding him liable to the claimants because, among other things, he had no direct dealings with them.

FINRA Rule 2080 addresses expungement of negative information from the CRD, which is the FINRA database used by brokerage firms, investors, and regulators to assess the complaint history concerning a broker or investment advisor. According to this rule, “persons seeking to expunge information from the CRD system arising from disputes with customers must obtain an order from a court of competent jurisdiction directing such expungement or confirming an arbitration award containing expungement relief.” The court disagreed that FINRA Rule 2080 gave it jurisdiction over FINRA and the authority to vacate the 2005 arbitration award. Construing the rule as such would conflict with the statutory requirement that arbitration awards be confirmed unless a prompt motion to vacate is filed with the court. Previous Massachusetts state court decisions granting expungement orders to brokers were based on actions filed under the section of Massachusetts general laws, G.L. c. 251, § 11 to confirm an arbitration award recommending expungement. The Massachusetts statute is analogous to the Federal Arbitration Act (“FAA”) provision, 9 U.S.C. § 9; therefore, precedents in federal district court and other states have reached the same conclusion.

FINRA Rule 2080 does not provide claimants with a substantive right to override the finality of arbitration decisions. Matters fully litigated in arbitration are subject to the same res judicata effect as if they had been litigated in a court of competent jurisdiction or before an administrative agency. When arbitration affords opportunity for presentation of evidence and argument substantially similar in form and scope to judicial proceedings, the arbitration award should have the same effect as a court judgment. Bailey v. Metropolitan Property & Liab. Ins. Co., 24 Mass.App.Ct. at 36–37, quoting from Restatement (Second) of Judgments § 84 comment c. Nee asked the arbitration panel to find that he was not liable to the claimants and to order expungement, but the panel ruled against him on both requests. His current complaint asks the court to reconsider the expungement issue that was expressly resolved by the panel. Because that matter was “deemed arbitrable and [was] in fact arbitrated,” it cannot be collaterally attacked in a new complaint. TLC Construction Corp. v. A. Anthony Tappe & Associates, Inc., 48 Mass.App.Ct. 1, 4 (1999).

Massachusetts state law establishes a short 30-day window for filing a petition to vacate an arbitration award in order to accord such awards finality in a timely fashion, G.L. c. 251, § 12(b). Nee filed his complaint over six years after the arbitration award that denied his request for expungement. Therefore, the complaint was not properly before the court.

The court allowed FINRA’s motion to dismiss Nee’s complaint seeking an expungement order on the basis that the court has no authority to overrule the arbitration panel award denying expungement and that a motion to vacate the award was not filed in a timely fashion.

Should you have any questions relating to FINRA or arbitration issues, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County, Connecticut at 203-221-3100 or at

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