Posts tagged with "hearsay"

“Mommy Just Got Into a Little Accident,” Along With Other Evidence, Was Sufficient to Find That DUI Driver Operated her Car

In a recent criminal law matter, a Superior Court of Connecticut dismissed the plaintiff’s license suspension appeal, stating that the hearing officer had sufficient evidence to find that the plaintiff “operated” her motor vehicle.

This case arose from an incident that occurred on December 12, 2010. Police responded to a complaint from a woman (neighbor), who stated that the plaintiff’s vehicle backed out of her driveway across the street and struck her car. Officers proceeded up the driveway in question and saw the plaintiff, who was accompanied by her four-year-old son, “fumbling with her keys and struggling to keep her balance as she attempted to open her garage.” The plaintiff was visibly intoxicated, and when the officer asked the son what happened, he responded, “Mommy just got into a little accident.” Officers believed the plaintiff was so inebriated that administering the field sobriety tests would be unsafe. They arrested the plaintiff and transported her to police headquarters, where two breath tests revealed blood alcohol contents of 0.2181 and 0.2097, two-and-a-half times the legal limit. A subsequent inspection of the plaintiff’s vehicle revealed damage consistent with that from the neighbor’s car.

The plaintiff was charged with driving under the influence in violation of Connecticut General Statutes (CGS) § 14-227a. The Department of Motor Vehicles (DMV) sent her a notice of suspension, and she requested an administrative hearing. The hearing officer made four statutory findings pursuant to CGS § 14-227b(g), and given the plaintiff’s history of suspensions, ordered that her license be suspended for two years and six months. The plaintiff appealed, stating that the hearing officer’s conclusion on the fourth criteria of CGS § 14-227b(g), “operation,” was without factual support. She contested the neighbor’s identification of her as the driver and use of her son’s hearsay statement, as well as the fact that police did not see her driving.

When a plaintiff contests the decision of a DMV hearing officer, they have the burden of proving that the decision was arbitrary and an abuse of discretion. A decision that is reasonably supported by the evidence will be sustained by a reviewing court. In addition, hearing officers have broad discretion in accepting or discrediting witness testimony, and are not bound to the strict rules of evidence regarding hearsay. Therefore, hearing officers have the authority to rely on hearsay of operation so long as the testimony is relevant and material to that finding.

In this case, the Superior Court found that the hearing officer had ample evidence that the plaintiff operated her car. The officers personally saw the plaintiff in possession of her keys outside the garage in which her car was located. Given the coinciding damage between both cars, along with the neighbor’s and son’s statements, which the hearing officer was free to accept, there was sufficient evidence to find that the plaintiff operated her motor vehicle. Therefore, the hearing officer did not abuse his discretion, and after addressing the plaintiff’s additional claims, the Superior Court dismissed her appeal.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, 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 JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

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 JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Testimony Deemed Proof of Market Value of Shoplifted Goods Where Defense Counsel Failed to Object to Its Admission

In a recent criminal law matter, the Appellate Court of Connecticut rejected a defendant’s insufficiency of the evidence claims regarding the value of shoplifted goods and the element of “taking” under Connecticut’s larceny laws.

This case arose from an incident that occurred on January 30, 2007. Stratford police responded to a shoplifting in progress at a local Wal-Mart. At the store’s loss prevention office, the officers observed live camera footage of the defendant and her accomplices attempting to hide DVDs, first in a clear plastic tote, then within a suitcase. The defendant stayed inside the store as the accomplices pushed a cart with the suitcase to a store exit and left it there as they proceeded outside, where they were arrested. The defendant then moved to the cart and pushed it slightly, but was detained before actually leaving the store. Pursuant to police department procedure in shoplifting cases, the officers asked a store employee to scan the DVDs and provide a receipt as if they were purchased. There were 101 DVDs with an aggregate value of $1,822.72.

The defendant was charged with larceny in the third degree and conspiracy to commit larceny in the third degree. At trial, an officer testified as to how the value of the DVDs was calculated, but could not remember the exact amount. After being shown a copy of his report to refresh his recollection, the officer testified that the total amount was $1,822.72. Defense counsel did not object to the line of questioning or the testimony on the grounds of hearsay or competency. No other evidence regarding the value of the DVDs was provided, such as the receipt or the DVDs themselves.

The defendant was convicted on both counts and sentenced to three years of incarceration. On appeal, she first argued that the officer’s testimony was incompetent evidence that the value of the DVDs exceeded $1,000. He did not have an independent knowledge of their value and was merely reciting a value from a document not entered into evidence. Even if such testimony was competent, the use of the store’s price tags was an inadequate measure of market value. Rather, according to the defendant, evidence of actual sales was necessary.

The Appellate court found that the officer’s testimony was sufficient proof because defense counsel did not object to its admission. “If [inadmissible] evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have.” The Court noted that “market value” and “selling price” (a.k.a. price tags) are synonymous terms, and that “any evidence which reasonably tends to show the present value of the stolen goods may be admitted.”

The defendant next argued that there was insufficient evidence of a taking, as she was still inside the store and had not brought any DVDs outside at the time she was detained. In Connecticut, larceny consists of “(1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.” To constitute a criminal taking, what is necessary is the “implicit transfer of possession or control,” not whether the item itself was removed from the owner’s premises. To constitute larceny in the third degree, the value of the property must exceed $1,000.

In this case, the Appellate Court was once more not persuaded that there was insufficient evidence. The actions taken by the defendant and accomplices “in concealing the DVDs and moving them to an area where they quickly could be removed from the store” was sufficient evidence to establish the essential taking element of larceny.

When faced with a charge of larceny, burglary, conspiracy, or attempt, 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 JMaya@Mayalaw.com.

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State of Mind Hearsay Exception Did Not Apply to Letter Allegedly Condoning Larcenous Actions

In a recent criminal law matter, the Appellate Court of Connecticut affirmed the defendant’s larceny-related convictions, finding the trial court did not improperly exclude evidence.

In this case, the defendant was the victim’s resident health care aide. Over the course of two-and-a-half years, the defendant used the victim’s signature stamp to draft more than $300,000 in checks, drawn from the victim’s life savings, payable to herself and her relatives. When the victim was hospitalized, to his shock and dismay, he learned that his savings were wiped out. He had to obtain State financial assistance and could not return home, instead dying in a nursing home ten months later.

The defendant was charged with larceny in the first degree, larceny in the first degree by embezzlement, and larceny in the second degree. At trial, she attempted to introduce a letter drafted by her daughter, allegedly signed by the victim and permitting the transfer of money from him to the defendant. On the signature line was an “X,” and the daughter testified that she did not know who put it on the writing. The defendant admitted that the document was hearsay, but fell under the “state of mind” exception. The State objected to its admission, arguing that it was past looking and lacked authentication, thus making it unreliable. The trial court agreed and sustained the objection. Subsequently, the defendant was convicted on all counts and appealed, arguing that the trial court improperly excluded the letter from evidence.

Under § 8-3(4) of the Connecticut Code of Evidence one will find the state of mind exception to the hearsay rule. This section provides:

[A] statement of the declarant’s then-existing mental or emotional condition, including a statement indicating a present intention to do a particular act in the immediate future, provided that the statement is a natural expression of the condition and is not a statement of memory or belief to prove the fact remembered or believed [will not be excludable hearsay].

In this case, the Appellate Court agreed that the document did not fall under the state of mind exception. The trial court did not err in excluding it from evidence, finding it not sufficiently reliable to qualify: the document could not be authenticated because the victim was dead, and the placement of the X could not be explained. Therefore, the judgment was affirmed.

When faced with a charge of larceny, 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 JMaya@Mayalaw.com.

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