Opinion
No. CR 01-106675
March 11, 2005
MEMORANDUM OF DECISION ON MOTION IN LIMINE
In this case, defendant Philip Sullivan has been charged by information with a single count of eavesdropping, in alleged violation of General Statutes § 53a-189, based upon conduct he allegedly engaged in in the home of his mother, Mary E. Crowell (d.o.b. 3/5/11), at 37 Valley View Drive in Farmington, Connecticut, on or about May 14, 2000. The State claims, more particularly, that on that date, Mr. Sullivan surreptitiously intercepted and tape recorded a telephone conversation between his mother and his sister and brother-in-law, Kathryn and James Hyland, without the consent of any of them, as required by law. The defendant has pleaded "Not Guilty" to this charge and elected to be tried by a jury.
In early January of 2005, when this case was called in for trial, the defendant was unrepresented and preparing to go to trial alone. The reason for his self-representation, he explained and verified, was that he had discharged his prior attorney when the attorney was temporarily suspended from the practice of law after unrelated professional disciplinary sanctions were imposed upon him. Against this background, the Court proposed, and the defendant and the State agreed, that an effort should be made to recruit competent counsel to assist the defendant with the final preparation and presentation of his defense. Upon the implementation of this proposal, current counsel met with the defendant and was retained to represent him, with the expectation and understanding that after a short interval, the case would proceed directly to trial.
In anticipation of an immediate trial, counsel spent considerable time reviewing the State's file and discussing its case against the defendant with the State's Attorney. In the course of those discussions, the State's Attorney suggested to counsel that a central issue in the case would almost certainly be whether or not the State's available evidence was sufficient to warrant submitting the case to the jury. That issue had arisen, the State's Attorney explained, because the complainant — the defendant's mother, Mrs. Crowell — had died on April 23, 2004. Since Mrs. Crowell had never testified concerning her claim of eavesdropping against the defendant, the State's only evidence as to whether or not she had ever consented to the defendant's alleged interception and tape recording of the subject telephone conversation on May 14, 2000 consisted of several out-of-court statements she had reportedly made to certain family members and State officials or officers, which the State planned to offer in evidence, undoubtedly over objection, at trial. Under those circumstances, the State's Attorney proposed that instead of taking several days to select a jury for a trial that might never go to verdict, the better course might be to ask this Court to make a pre-trial ruling as to the admissibility of Mrs. Crowell's out-of-court statements so that, if they were ruled inadmissible, the State could consider requesting a dismissal of this case so that it might appeal from the Court's exclusionary ruling. If the defense agreed to this proposal, the State's Attorney agreed to file a motion in limine forthwith.
Based upon the agreement of the parties to proceed in the manner proposed by the State's Attorney, the Court temporarily postponed the start of trial and set a schedule for filing and briefing the State's anticipated motion and taking testimony thereon. In accordance with that schedule, the State duly filed the instant Motion in Limine on January 21, 2005, the Court heard evidence on the Motion on January 28 and January 31, 2005, and the parties filed legal memoranda supporting their respective positions on the Motion on January 31 and February 4, 2005. Based upon the evidence developed at the evidentiary hearing and the legal arguments presented by counsel in their respective legal memoranda, the Court makes the following Findings of Fact and Conclusions of Law:
I. FINDINGS OF FACT A. Introduction
1. In May of 2000, Mrs. Mary Crowell (d.o.b. 3/5/11), then 89 years of age, lived at 37 Valley View Drive, Farmington, Connecticut. Living with her at that time were her son, defendant Philip Sullivan, and his wife, Charlotte Sullivan, with whom Mrs. Crowell, for reasons not disclosed to the Court, had willingly shared her home for nearly thirty (30) years.
2. In that same time frame, a dispute arose between the defendant and Mrs. Crowell's other children — Kathryn Hyland, Maryanne Delisa and Marty Crowell — as to whether her home at Valley View Drive should be sold. Though it was originally proposed that the defendant and his wife buy the house from Mrs. Crowell at a substantial discount, he ultimately opposed the sale and frustrated efforts by his siblings to sell it by moving out and leaving it in such cluttered state that it could not be shown to potential buyers.
B. The Finding of the Tapes
3. On July 22, 2000, after Mrs. Crowell had moved to Village Gate, an assisted living facility in Farmington, the defendant's siblings and their families decided to make a videotape of the contents of the house before they began to clear out the defendant's belongings to prepare the house for marketing and possible sale. While walking through and videotaping the contents of the den in the basement of the house, where the defendant maintained an office, the defendant's brother-in-law, James Hyland, a Pratt Whitney engineer who was married to the defendant's sister Kathryn ("Kathe"), made certain observations of what he thought to be unusual wiring and telephone equipment. In particular, he observed some apparent interconnections between the two telephone lines that came into the house, one of which had been for his mother-in-law while the other had been for the defendant and his wife.
4. Later in the videotaping process, moreover, while walking through another section of the basement, Mr. Hyland came across a large pile of audiotapes, perhaps a hundred in all, sitting on his mother-in-law's old dining room table.
5. After he finished videotaping the basement, Mr. Hyland returned upstairs to where his mother-in-law and the others were cleaning the house. At that time, he recalls, his mother-in-law asked him if, while he was in the basement, he had found her Phantom of the Opera tape. He responded that, although he had found several tapes in the basement, he had no idea what they contained, and thus he would have to play them to check them out. With that as his mission, he returned to the basement, selected several tapes from the top of his mother-in-law's old dining room table, and brought them outside to his car to determine what was on them.
6. Putting the first tape — one marked with the legend "MA/M" — into the tape player, Mr. Hyland heard, to his surprise, the voices of his sister-in-law, Maryanne Delisa, and her mother, Mrs. Crowell. The next tape, he recalls, was a recorded conversation between the defendant and his wife, Charlotte. Concluding that something was wrong, Mr. Hyland went back inside the house and asked his brother-in-law, Martin ("Marty") Crowell, his sister-in-law, Maryanne, and his own wife, Kathe, to come back outside with him to the car. Once they all were assembled by the car, he put one of the tapes back into the tape player and replayed it for them. Upset by what they heard, they decided as a group that it would be best for them to do nothing about the tapes so as not to upset their mother, who was already upset enough by her recent move. Hence, they did not tell her about the tapes and did not call the Farmington Police.
7. Over the next few weeks, as Mrs. Crowell's daughters made further preparations to show the house to potential buyers, Kathe Hyland found two more audiotapes under a piece of furniture in the basement. One such tape bore a label marked "Ready to Go." Mrs. Hyland gave the tapes to her husband, James Hyland, who promptly played them in his tape player to determine their contents. The "Ready to Go" tape contained three voices which Mr. and Mrs. Hyland immediately recognized as their own voices and that of Mrs. Crowell.
C. Oral Statements to the Hylands Upon the Playing of the Tapes
8. In the six-week period from July 22, 2000, when the first group of tapes was discovered and played, until Labor Day weekend of 2000, the defendant's sisters, particularly Maryanne Delisa, became increasingly agitated about the existence of the tapes and concerned about the uses the defendant, who was known to be litigious, might one day try to make of them. Indeed, so deeply was she troubled that her mother began to notice a change in her behavior, and on that basis to comment that she was afraid something was being hidden from her. Prompted by such questions, the sisters and their brother Marty decided that the tapes should be played for their mother to determine what, if anything, she knew about them and how, if she hadn't made them herself or authorized someone else to make them, she wished to deal with them. By so doing, they also planned to explain to Mrs. Crowell why Marianne had been so upset in recent weeks.
9. To lessen Mrs. Crowell's anticipated surprise upon hearing the tapes, Kathryn and James Hyland met with her after dinner in her studio apartment at Village Gate and simply told her they had something they wanted her to hear. Then, as James Hyland recalls the meeting, he simply put the "MA/M" tape into the tape recorder and started to play it, with the following results:
A . . . And she had this puzzled look on her face because the first thing you hear is her voice, you know. And what I recall her saying is, ["T]hat's me.["] And then it plays on. And the next voice you hear is Maryanne. And she goes, ["T]hat's Maryanne. Where did you get these tapes?["] I said, ["T]hey — they were in your cellar. They were on your dining room table.["] And you know, my wife goes, ["]Ma, did you — did you — did you make these tapes.["] ["]No, I didn't make these tapes[,"] she said. ["D]id you ask Phil to make — to make tapes of your phone conversations?["] She said, ["N]o.["]
Transcript (1/28/05), pp. 24-25.
10. Once the first tape was played, James Hyland recalls Mrs. Crowell reflecting on a puzzling incident from the past that had just begun to make sense to her. The incident involved an embarrassing trip to the bank to open her safe deposit box on which she had brought along the wrong key — a key to a Mitsubishi automobile — because it had been hanging in the spot where the key to the safe deposit box usually hung. Shortly after the incident, after she had had telephone conversations with her son Marty and the Hylands to discuss her resulting concern that she might be losing her mind, she recalled that the safe deposit key had suddenly reappeared in its usual spot. Thinking back on those events after hearing the first tape recording, she reportedly commented as follows:
A . . . ["Y]ou know, after that time, . . . I knew someone was listening on my phone calls. I kept hearing these — these clicks and, you know, that's how the Mitsubishi key got there and that's how the real key got put back. They were listening to my calls.["]
Transcript (1/25/05), p. 26.
11. Later in the meeting, according to James Hyland, he played the "Ready to Go" tape for Mrs. Crowell and provoked essentially the same response:
A. Then I put that — that tape in and, you know, again it was a repeat of that. ["]Hey,["] she says — she points to me and goes, ["T]hat's you,["] you know. And then ["I]t's Kathe,["] my wife, Kathe Hyland. And then it's, you know, her voice. And they have this conversation about the Miracle of Fatima and, you know, a party that was being planned for my daughter.
And, you know, again, after we played each one, my wife would repeat and ask, you know, ["D]id you make this tape, Ma? Did you ask Phil or Charlotte to make this tape?["] Each time she would respond the same way, you know, at one point she just kind of looks up in the air and says, you know, ["M]y God, why — I was a fool. People are going to think I'm some dumb, old woman.["] you know. ["]And they've taken advantage of me.["]
Transcript (1/28/05), pp. 26-27.
12. After one or two more tapes were played for Mrs. Crowell, who by then was reportedly very upset, she asked the Hylands what they should do about the tapes now that they had found them. ["]Can we just take the tapes and throw them away or —," she began to ask. ["]You know,["] responded Mr. Hyland, ". . . we need to, you know, call up the police and get them involved and get them to do that.["] Transcript, (1/28/05), pp. 27-28. On that basis, with the understanding that Mrs. Crowell wished him to do so, Mr. Hyland telephoned the Farmington Police Department.
13. Kathryn Hyland's recollection of the initial playing of the tapes for her mother was very similar to, though somewhat less detailed than, that of her husband. Recalling the process of playing the tapes, she too remembered that the first taped played was the "MA/M" tape, and that her mother's initial verbal reaction was to say, "[t]hat sounds like Maryanne." Transcript (1/31/05), p. 72. Thereafter, she testified, her mother simply listened in puzzlement; answering a series of questions put to her as follows.
A . . . And then she, you know, just kind of listened some more. And I said, ["Y]eah, who does the other person sound like?["] And she said, ["L]ike me.["] And I said, ["Y]eah.["] And I think she was just, you know, puzzled by how could her voice be on there. And I said, ["D]id you know about this, Ma? Did you ever record anything for your conversation or did you ever ask anyone to?["] And said, ["N]o["].
And then, you know, we played the other one. And, you know, she knew it was her, she knew it was me. And she was just — she said, ["O]h, my God[," s]he said, ["]I — I'm so ashamed.["] And I said, ["W]hy are you ashamed?["] And she said, ["]I'm so ashamed because I trusted him. I would have trusted him with my life.["]
Transcript (1/31/05), pp. 72-73. Finally, when asked by the State's Attorney if her mother had responded to her question whether or not she had authorized the taping, Mrs. Hyland answered as follows:
A . . . Her answer was, ["N]ever, never. I never would do such a thing. I never would consent to such a thing.["]
Id., p. 74.
14. On cross-examination by defense counsel, Mrs. Hyland confirmed as follows that almost all of her mother's statements during the initial playing of the tapes at Village Gate were responses to her questions rather than unprompted exclamations of her own:
Q. You asked your mother if she recognized the voice that was speaking, is that correct?
A. Yes.
Q. And she responded, ["I]t sounds like Maryanne["]?
A. Yes.
Q. And then you asked her another question, which was ["D]o you recognize that voice?["] And she said, ["T]hat's me,["] correct?
A. I said, "What about the other one?["]
Q. Okay. And you then asked her some questions related to whether she had made tapes or whether she had consented to the tapes, is that correct?
A. And if she knew about the tapes, correct.
Q. So her responses were largely responding to your questions, is that right?
A. Her responses to my questions, that's what they would be, responses, yes.
Transcript (1/31/05), pp. 78-88.
D. Complaint Letters to the Office of the Chief State's Attorney's
15. Upon telephoning the Farmington Police Department with his complaint and inquiry about the tapes in his mother-in-law's basement, Mr. Hyland was referred to the Statewide Prosecution Bureau of the Office of the Chief State's Attorney, which he promptly contacted. Then, in an initial telephone conversation with Supervising Assistant State's Attorney Stephen Sedensky, a Bureau supervisor, he was informed that no investigation could be undertaken without a written complaint from the complainant, Mrs. Crowell. So informed, Mr. Hyland went back to his mother-in-law to help her draft a suitable letter.
16. Mr. Hyland described as follows the process by which he helped his mother-in-law draft her letter of complaint:
A. Well, you know, then I sat there and I took out a — you know, I had a pad of paper with me. And I said, ["W]ell, you need to write — you need to write a letter and send it in, and you know, then they'll look at that or they'll investigate it and do the right thing.["] And she said, ["W]ell,["] you know, ["]can you — can you write it for me?["] I said ["S]ure. Let's — ["] you know, ["]just tell me what you want to say and I'll write it.["]
And she said, as I recall, something like, ["W]ell, what do I say?["] And I said, ["W]ell,["] you know, I mean it's like I would write a letter at work, ["]first tell them who you are.["] And she said, ["W]ell,["] you know, "I'm Mary Crowell. I'm 89 years old. I live at such and such an address. ["]And whatever. ["S]o,["] you know, ["]what else?["] I said, ["N]ow tell them what the problem is.["]
She says . . . you know, it kind of went off track on some things, but she said, ["W]ell, I got all of these problems." You know, ["] I'm being sued. I was so nice to them. I gave them everything. I trusted them.["]
You know, she finally got to the point where, you know, she's really worried about these — these tapes. You know, primarily she's worried about her daughter, Maryann[e], because she's been watching Maryann[e] fester for quite some time, not knowing what was bothering her, now she knows what was bothering her. I'm sure Mary knows in her mind what her and Maryann[e] have talked about. So maybe she's concerned about some of the conversations she's had with her daughter. And so she, you know, says that he got — he's got these tapes and ["]I'm very worried,["] you know, "I'm worried about how they'll be used to hurt my children, embarrass them and whatever.["]
So I'm just kind of like writing sentences, half sentences, thoughts, you know. Then my wife sits there and kind of calms her down and I'm — I construct a letter, you know, that kind of flows a little better.
You know, I read it to her. She makes some comments. I edit it.
Q. You edit it to reflect her thoughts.
A. Yeah, I edit it to reflect her comments. Then I say, ["O]kay, I'll go back home and type it up. Then it's, I'll bring it back and you read it and decide, you know, what you want to do. You don't have to do anything immediately.["]
It's like over the course of the next day or two I did that, brought it to her, she read it, you know, and then signed it. The first letter she signed was September 7th[, 2000] you know.
Transcript (1/28/05), pp. 29-31.
18. The initial letter, dated September 7, 2000, was never sent to SASA Sedensky, because Mrs. Crowell changed her mind about sending it shortly after she signed it and Mr. Hyland drove away with it. Later, however, she changed her mind again upon learning from another son-in-law, Maryanne's husband, Tommy Delisa, that the defendant had warned the realtor that any future buyer of the house would have to understand that he and his wife were still legal tenants in it. Hence, Mr. Hyland prepared a second letter for Mrs. Crowell's signature, identical to the first letter except for its date, which she signed and mailed to SASA Sedensky on September 14, 2000.
The letters addressed to SASA Sedensky were marked as Exhibits PH-2 (letter of 9/14/00) and PH-3 (letter of 9/7/00), respectively, at the hearing on this Motion.
E. Oral and Written Statements to the Investigator from the Office of the Chief State's Attorney
19. Upon receipt of Mrs. Crowell's, complaint letter of September 14, 2000, SASA Sedensky assigned the case for investigation to Inspector Gregory Zigmont. In the course of his ensuing investigation, Inspector Zigmont took statements from Mrs. Crowell on two occasions — January 8 and April 3, 2001.
20. On January 8, 2001, Inspector Zigmont visited Mrs. Crowell at her Village Gate apartment in Farmington, where he replayed the "MA/M" tape for her, then asked her questions about it in the presence of her son Marty Crowell. At the end of this visit, during which Mrs. Crowell's demeanor was very sad, she signed a two-page statement that read in relevant part as follows:
Inspector Zigmont played this tape for me. I could clearly identify my voice and Maryann[e]'s. This tape was made without my knowledge and/or consent. The conversation on the tape dates back to approximately 1993. I do know, through Jim and Marty that there are many more tapes in the garage. I also remember an incident a year ago when I had telephone conversations with my son Marty about a safety deposit box key that was missing. The key turned up that was missing. The key turned up in its proper spot the day after our conversation. I now believe that Phil may have been taping my conversations then.
Statement of Mary Crowell (1/8/01), p. 1.
21. On April 3, 2001, Inspector Zigmont returned to Village Gate to play the "Ready to Go" tape for Mrs. Crowell and obtain a statement about it from her in the presence of her daughter, Kathryn Hyland. The brief handwritten statement that resulted from this second interview read in full as follows:
On April 3, 2001, Inspector Zigmont played a tape for me which has a conversation between me and my daughter Kathryn.
This tape was recorded without my knowledge or consent.
Mary B. Crowell
II. CONCLUSIONS OF LAW:
The State has advanced four separate grounds for admitting the out-of-court oral and written statements of the deceased complainant, Mary Crowell, as substantive evidence that she did not consent to the defendant's alleged interception and recording of her May 14, 2000 telephone conversation with James and Kathryn Hyland which forms the basis of its claim against him in this case. They are: (1) that all of Mrs. Crowell's out-of-court statements — including her oral statements to James and Kathryn Hyland when the "MA/M" and "Ready to Go" tapes were first played for her, her later oral statements to James Hyland when he helped her write her complaint letter to the Office of the Chief State's Attorney, her two signed complaint letters which resulted from discussions with Mr. Hyland, and her later oral and written statements to State's Inspector Gregory Zigmont — are admissible under the "state-of-mind exception" to the hearsay rule; (2) that Mrs. Crowell's second complaint letter to the Office of the Chief State's Attorney, which was signed and sent on September 14, 2000, is admissible as non-hearsay because the sending of that letter was a "verbal act"; (3) that Mrs. Crowell's oral statements to James and Kathryn Hyland when the "MA/M" and "Ready to Go" tapes were first played for her are admissible as "excited utterances"; and (4) that if none of Mrs. Crowell's oral or written statements are ruled admissible on any other legal basis, each bears sufficient indicia of reliability and trustworthiness to warrant its admission here, where no other evidence of lack of consent is available, under the "residual exception" to the hearsay rule. For the following reasons, the Court rejects each of the State's claims.
A. State-of-Mind Exception
Under the Connecticut Code of Evidence ("CCE" or "Code"), hearsay is defined as:
a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.
CCE, § 8-1(3). The Code further provides, in Section 8-2 thereof, that "[h]earsay is inadmissible, except as provided in the Code, the General Statutes or the Practice Book." Here, in asserting that Mrs. Crowell's out-of-court statements, or any of them, are admissible to prove that she did not consent to the defendant's alleged interception and recording of her May 14, 2000 telephone conversation with James and Kathryn Hyland, the State is unquestionably offering such statements for a hearsay purpose, that is: "to establish the truth of the matter asserted." Code, § 8-1(3). Hence, before they can properly be admitted for that purpose, the State must demonstrate, to this Court's satisfaction, that their admissibility is "provided [for] in the Code, the General Statute or the Practice Book." Code, § 8-2.
In support of its initial claim that each of Mrs. Crowell's out-of-court statements is admissible under the "state-of-mind exception" to the hearsay rule, the State has invoked and relied on Section 8-3(4) of the Code, which provides as follows:
Sec. 8-3 Hearsay Exceptions: Availability of Declarant Immaterial.
The following are not excluded by the hearsay rule, even though the defendant is available as a witness.
(4) Statement of then-existing mental or emotional condition.
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.
Such reliance, however, is misplaced for several reasons.
First, the Section expressly limits the permissible use of a defendant's hearsay statements to proving his or her "then-existing" mental or emotional condition. These words clearly imply that the defendant's statements cannot be used to establish her mental or emotional condition at any other time.
The Section goes on, moreover, to expressly disallow the substantive use of any "statement of memory or belief to prove the fact remembered or believed." Id. This preclusion, by its terms, extends to all facts set forth in any declarant's statement which describe the then-existing state of her memory or belief as to past events, including her memory or belief as to her own state of mind during those events. The reason for this preclusion, as explained in the binding official Commentary to Section 8-3(4) of the Code, is that
it is necessary to avoid the virtual destruction of the hearsay rule which could otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind.
Id. ( quoting Fed.R.Evid. 805(3) advisory committee note, citing Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933)).
Understood as aforesaid, Section 8-3(4) not only fails to justify the admission of Mrs. Crowell's out-of-court assertions that she did not consent to the defendant's alleged interception and recording of her May 14, 2000 telephone conversation with the Hylands, but affirmatively requires their exclusion as evidence in this case. The Section does not permit the use of any such statements to prove the declarant's state of mind at the time of the defendant's alleged interception and recording of her telephone conversation with the Hylands because they all were made many months after that conversation took place. It also does not permit their use to prove the declarant's state of mind when she made those statements because her state of mind on those occasions is simply irrelevant to the issues of this case.
Finally, the Section forbids the only use the State has ever proposed to make of the declarant's statements, to wit: "to prove circumstantially what her mental condition was on the date of the offense." State's Initial Brief (1/31/05), p. 3. Reduced to its essence, the inference thereby sought to be supported is simply that, if the declarant so recalled the relevant event, it can fairly be inferred that that is how the event took place. This, however, is patent bootstrapping, of the very sort which is expressly prohibited by Section 8-3(4) and its binding Commentary. The Court will not violate Section 8-3(4) by permitting "state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind." Id.
B. Verbal Act
The State next claims that Mrs. Crowell's second letter to the Office of the Chief State's Attorney is admissible non-hearsay because its transmission by her was a verbal act. "A statement," it argues, "constitutes a verbal act if the statement is relevant simply because the statement was made, irrespective of whether it was true or false." State's Initial Brief (1/31/05), p. 8 ( quoting C. Tait, Connecticut Evidence (3d ed. 2001) Sec. 8-8, p. 575). "A verbal act," it continues, "is an out-of court statement that causes certain legal consequences, or stated differently, it is an utterance to which the law attaches duties and liabilities . . . [It] is admissible non-hearsay because it is not being offered for the truth of the facts contained therein." State's Initial Brief (1/31/05), pp. 8-9 ( quoting State v. Perkins, 271 Conn. 218, 856 A.2d 917 (2004)).
Purporting to apply the foregoing doctrine, which it correctly describes, to Mrs. Crowell's September 14, 2000 complaint letter to Supervising Assistant State's Attorney Sedensky, the State claims that the transmission of that letter was a verbal act because it had "the legal consequence of putting into motion a formal investigation of the eavesdropping complaint" which is at issue in this case. State's Initial Brief (1/31/05), p. 9. On that sole basis, it argues that the letter is non-hearsay, and thus admissible at trial, when it can assertedly be used, by the following logic, to support the inference that its sender, Mrs. Crowell, did not consent to the defendant's alleged eavesdropping upon her on May 14, 2000:
This verbal act is inconsistent with any consent on the part of Mary Crowell to the eavesdropping. Put another way, the verbal act is non-hearsay circumstantial evidence of Mary Crowell's non-consent to the eavesdropping. A factfinder who found that evidence of the making of the complaint had been proved could reasonably infer therefrom that Mary Crowell did not consent to the eavesdropping. It is inconsistent for a consenting party to file a criminal complaint about the conduct she consented to.
State's Initial Brief (1/31/05), p. 9.
With due respect to the State, the foregoing argument misconstrues and misapplies the verbal act doctrine in several important ways. First, it incorrectly assumes that the doctrine authorizes the admission, as a verbal act, of any out-of-court statement that somehow produces or engenders legal consequences for any person. Such a rule, however, would transform almost every complaint of crime into a legally admissible "verbal act" merely because, if followed up on, it could lead, as in this case, to the initiation of a criminal investigation. The predictable consequence of adopting such a rule would be to inundate criminal trials with torrents of rank, unsubstantiated, and yet unchallengeable hearsay on the dubious premise, here espoused by the State, that if the complainant said it, it is probably true.
Under our law, however, the scope of the rule is actually far narrower than the State has suggested, having carefully been limited to statements whose utterance has legal consequences for the declarant personally, either by violating one of her legal duties and exposing her to liability or by resulting in the imposition of such a legal duty upon her. Classic examples of such statements are a criminal defendant's alleged verbal threats to the complainant upon which a threatening or witness tampering prosecution is based, a defendant-employer's allegedly sexually explicit remarks to or in the presence of an employee which form the basis for a sexual harassment action, or a defendant's alleged use of language claimed to signify acceptance by him of another's offer to contract in a breach-of-contract action. Each such statement is admissible at trial as non-hearsay because its only significance in this case, and thus the only purpose for offering it in evidence, is to prove that the party claimed to have uttered it actually did so under circumstances which made his utterance criminal, tortious or otherwise actionable.
On occasion, of course, a declarant's complaint to police or prosecutorial officials may be admitted into evidence as a verbal act. That, however, can only occur when the act of making of the complaint is itself at issue in the case. Where, for example, a defendant in a malicious prosecution case is accused of making a false report to the police, the substance of his report can be admitted against him as his verbal act — obviously not to prove the truth of the matters asserted in it, which are claimed to be false, but to prove that he actually made the report. Where, as here, by contrast, an out-of-court complaint is offered into evidence without any basis for claiming that the act of filing or transmitting it had independent legal significance, there is plainly no basis for admitting it as the declarant's verbal act. Instead, because its admission without a proper non-hearsay use for it would naturally tempt jurors to use it for hearsay purposes — that is, to prove the truth of the matters therein asserted — it must be excluded from evidence unless it is shown to be admissible under a different exception to the hearsay rule.
Here, in fact, the second way in which the State has misconstrued or misapplied the verbal act doctrine is by failing to offer any non-hearsay basis for admitting the challenged evidence. Unaccountably ignoring the language it quotes from State v. Perkins, supra, where our Supreme Court held that any statement introduced as a verbal act can only be for non-hearsay purposes, the State here offers Mrs. Crowell's complaint only for the single, obviously hearsay purpose of proving the truth of her central assertion that she did not consent to the defendant's alleged eavesdropping upon her telephone conversation of May 14, 2000. Without discussing the particulars of the complaint, the State infers from its mere making in this context that it contains allegations of eavesdropping by the defendant to which Mrs. Crowell did not consent. Even such broad generalizations about the allegations, however, clearly constitute forbidden hearsay uses of the complaint, for they ask the finder of fact not only to infer the nature of Mrs. Crowell's allegations, but to draw the further inference that such allegations were true because she probably would not have made them unless they were in fact true. Putting to the side the extraordinary proposition that the truth of an allegation can be established merely by proving that the allegation was made in an out-of-court statement — a proposition unknown to our law, even in the extreme case of sexual assault, where constancy-of-accusation testimony has been ruled inadmissible to prove the truth of its contents — the State's suggestion to this Court that the complainant's letter can in any way be used to prove the truth of its contents must be flatly rejected.
In conclusion, Mrs. Crowell's September 14, 2000 complaint letter to the Office of the Chief State's Attorney is not admissible as her verbal act.
C. Spontaneous Utterance Exception
The State's third claim on this Motion is that the initial oral statements of Mrs. Crowell to the Hylands after they first played the "MA/M" and "Ready to Go" tapes for her on Labor Day Weekend of 2000 should be ruled admissible to prove the truth of the matters asserted in them under the "excited utterance exception" to the hearsay rule. That well-established exception, which traces its origins to our common law and is also known as the "spontaneous utterance exception," is now codified as follows in Section 8-3(2) of the Connecticut Code of Evidence:
Sec. 8-3 Hearsay Exceptions: Availability of Declarant Immaterial.
The following are not excluded by the hearsay rule, even though the defendant is available as a witness.
(2) Spontaneous utterance.
A statement that relates to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Although the language of this Section is written so concisely as not to restate or reflect all the subtle details of the common-law cases developing and refining this hearsay exception, the Code's drafters expressly stated, in their binding official Commentary to the Section, that "the rule assumes incorporation of the case law principles underlying the exception."
Our Appellate Court recently recited as follows the basic case law principles underlying the excited or spontaneous utterance exception:
"The excited [or spontaneous] 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." State v. Kelly, 256 Conn. 23, 41-42, 770 A.2d 908 (2001); Conn. Code Evid. § 8-3(2); 2 B. Holden J. Daly, Connecticut Evidence (2d Ed. 1988) § 97c, p. 949. 'Whether an utterance is spontaneous and made under 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." (Citation omitted; internal quotation marks omitted.) State v. Shabazz, 246 Conn. 746, 766, 719 A.2d 440 (1998.), cert. denied, 525 U.S. 1179, 119 S.Ct. 1116, 143 L.Ed.2d 111 (1999). Our Supreme Court has stated that "[t]he ultimate question is whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation." (Emphasis added; internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 128, 763 A.2d 1 (2000); C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.17.3, p. 619. State v. Arluk, 75 Conn.App. 181, 187-88, 815 A.2d 694 (2003).
In support of its claim that Mrs. Crowell's oral statements to the Hylands should be ruled admissible under this exception, the State argues simply that they were all made shortly after and in response to the playing of the tapes, which was allegedly a startling event for Mrs. Crowell, and that their utterance was spontaneous because, although made in direct response to Kathryn Hyland's questions, they were interspersed with unsolicited exclamations of personal shame and disappointment in her son, the defendant, based upon facts she had learned during that event.
In response to the State's claim, the defendant makes several counterarguments which this Court finds persuasive. First, he argues that, on the record before the Court, the playing of the tapes was not so startling an occurrence, with such powerful stress-inducing effects upon Mrs. Crowell, as to make her resulting statements excited or spontaneous utterances within the meaning of the rule. A startling occurrence is "one of such a nature as to produce nervous excitement in the declarant and render his or her utterances spontaneous and unreflecting." C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.17.3, p. 619. Examples of occurrences that have been held by our Supreme and Appellate Courts to be sufficiently startling to meet this requirement include: being shot; State v. Stange, 212 Conn. 612, 616-17, 563 A.2d 681 (1989); witnessing another person being shot; State v. Torres, 58 Conn.App. 524, 531, 754 A.2d 200 (2000); witnessing the firing of a gun, either at or in close proximity to one's person; State v. Westberry, 68 Conn.App. 622, 631-32, 792 A.2d 154 (2002); having a gun pointed at one's head during a robbery; State v. Lomax, 60 Conn.App. 602, 609, 760 A.2d 957 (2000); witnessing angry verbal threats to oneself or a loved one; State v. Arluk, supra, 75 Conn.App. at 181; being sexually assaulted; State v. Kelly, supra, 256 Conn. at 43; becoming aware of a fire in one's house; State v. Wargo, supra, 255 Conn, at 129 n. 13; and being involved in a serious automobile accident. Perry v. Haritos, supra, 100 Conn. at 482. The hallmark of each such occurrence is its inherently upsetting or frightening nature, of the sort that naturally shocks and overwhelms the senses.
The playing of tape recordings of everyday conversations that Mrs. Crowell had taken part in months or years before was not an inherently startling occurrence, the defendant correctly argues, because its probable effect on a person in Mrs. Crowell's situation, though certainly to upset and displease her by causing her to realize that some of her past phone calls had been recorded, was not to cause such deep emotional stress as to shock or overwhelm her senses, and thus to lose her powers of self-reflection. To begin with, the subject matter of the recorded conversations was entirely mundane. It did not relate to any sensitive or highly personal subject, involve any confidential revelations or expression of opinions or preferences, or have any other content that might have proved embarrassing to Mrs. Crowell or her family. The manner in which they were played for her, moreover — at her own apartment, after dinner, in the presence of close relatives with whom she enjoyed good relations — was chosen for the very purpose of being minimally upsetting.
By all accounts, moreover, it appears that the Hylands' calm, controlled approach to the playing of the tapes had the desired effect of avoiding a shocked or extremely emotional reaction by Mrs. Crowell. In fact, her reported response to the playing of the tapes was very mild and muted from start to finish. She was puzzled at first, then quiet and reflective. Finally, upon reflection, having recalled and gained new insight as to other puzzling events in her past, she sadly confessed feelings of shame for herself and disappointment with her son, ostensibly in light of what she had just begun to realize that he appeared to have been doing. Her verbal expressions of those feelings were clearly the considered products of such unhappy reflections and realizations, not spontaneous utterances made in "circumstances of physical shock or nervous excitement and 'under immediate and uncontrolled domination of the senses' and before reasoned reflection had taken place." Rockhill v. White Line Bus Co. 109 Conn. 706, 708, 145 A. 504 (1929) (quoting Perry v. Haritos, supra, 100 Conn. at 476).
The second reason why Mrs. Crowell's oral statements to the Hylands are not admissible under the spontaneous utterance exception to the hearsay rule, as now codified in Code § 8-3(2), is that they do not refer to the allegedly startling occurrence that is claimed to have given rise to them — the playback of the tapes — as mandated by the second requirement of the rule. Instead, they refer only to the circumstances in which the conversations recorded on the tapes assertedly took place many months (for the "Ready to Go" tape) or years (for the "MA/M" tape) before — more particularly, to whether Mrs. Crowell personally recorded those conversations or consented to their being recorded, which she denies, not to the later, then-ongoing process by which the tapes were being played back to her.
The Code's express requirement that, to be admissible as a spontaneous utterance, a declarant's statement, must refer to the allegedly startling occurrence that gave rise to it traces its origins to the common law. Thus, in one of its earliest articulations of the requirement, our Supreme Court explained that:
When the declaration follows some startling occurrence and is made with reference to it by one having an opportunity to observe the matter of which he speaks, and in such close connection to the event and under such circumstances as to negative the opportunity for deliberation and fabrication and to indicate that it was a spontaneous utterance growing out of the nervous excitement and mental and physical condition of the declarant, it is reasonably probable that it is trustworthy. The spontaneity of the utterance is the guaranty of its trustworthiness. If the utterance does not relate to the accident or occurrence, or the declarant has had no opportunity to observe that of which he speaks, it cannot fall within this principle.
Perry v. Haritos, supra, 100 Conn. at 484. Under this requirement, a declarant's proven excitement at the time of his declaration can only support an inference that the declaration is not the product of reasoned reflection, and thus that it is sufficiently trustworthy to warrant admitting it as a spontaneous utterance, if the excited state in which the declaration was uttered was caused by the same startling occurrence to which the declaration relates and continued, unabated, from the time of that occurrence to the time of the declaration. See, e.g., State v. Wargo, supra, 255 Conn. at 132 (holding, inter alia, that young children's statements to neighbors about a fight between their parents earlier in the evening were admissible as spontaneous utterances because, when they were made, the burning of their house with their mother still inside it, which for them was a continuation of the earlier traumatic incident, was still taking place). In that way, it is thought, the substance of the declarant's observations would not yet have been distorted by passing through the prism of his own self-interest.
In most cases, of course, a statement's compliance with this requirement is self-evident, as when the victim of or witness to a violent crime, while still under stress of excitement caused by what he has just experienced or observed, makes an immediate, unreflective statement about that experience or observation. In others, however, the declarant's utterances, though excited, do not pass muster under this rule because they include descriptions of or reflections upon prior events, occurrences or facts which were first learned by him in another setting, before the events producing his present state of excitement took place. Because such previously known information and material was obviously subject to the declarant's self-interested reflection and filtering before the event provoking his present state of excitement took place, inclusion of such information and material in his declaration deprive the declaration of that non-reflective quality that is the hallmark of a legally admissible spontaneous utterance. See, e.g. State v. Yednock, 14 Conn.App. 333, 541 A.2d 887 (1988) (upholding the trial court's exclusion of a witness's statement about an assault, which had been offered into evidence as a spontaneous utterance, because, although it was made in the course of a heated argument, the argument did not take place until a month after the assault); Wade v. Yale University, 129 Conn. 615, 618-19, 30 A.2d 545 (1943) (affirming the trial court's rejection of a statement claimed to be a spontaneous utterance because "it did not relate to or characterize the accident but was simply the narrative of a past event and, as such, inadmissible hearsay").
In this case, as in Yednock and Ward, Mrs. Crowell's proffered oral statements to the Hylands are inadmissible as spontaneous utterances because they relate not to the allegedly startling occurrence that provoked their utterance — the playing of the tapes — but to the circumstances that assertedly existed when she engaged in the conversations recorded on the tapes. For that reason as well, they must be excluded as spontaneous utterances in this case.
Third, and finally, the Court agrees with the defendant, for the foregoing reasons and others, that Mrs. Crowell's statements to the Hylands were not made in such circumstances as to negate her opportunity for deliberation and fabrication, as mandated by the fourth requirement of the rule. On this score, the Court has already found that the playing of the tapes was not a startling occurrence for Mrs. Crowell, either inherently, because of its natural tendency to cause shock and emotional stress for the average person or because of its particular potential to have that effect upon her. The Court has also found that it did not in fact have such an effect upon her, as gauged by her reaction to the playing of the tapes, which was mild and muted. Far from losing her capacity for reasoned reflection due to excitement engendered by the playing of the tapes, she clearly showed that capacity by her reaction, which, to reiterate, was one of puzzlement, then of quiet reflection, and finally of sadness, expressed as shame for herself and disappointment with the defendant, her son, for taking advantage of her and betraying her trust. These conclusions are further supported by the fact that her statements concerning the defendant's lack of authority to tape record her telephone conversations, none of which related to the tape-playing process itself, were prompted by questions from her daughter Kathryn. The mere fact that a statement was made in response to questions about an unquestionably startling event does not make an otherwise spontaneous declaration inadmissible under this rule. See, e.g., State v. Stange, supra, 212 Conn. at 617-20. When, however, as in this case, the declarant did not volunteer the information she provided in her statements before she was prompted to give it in response to another's questions, an inference naturally arises that her answers were more the product of reflection than of excitement or spontaneity. Rockhill v. White Bus Line Co., supra, 109 Conn. at 710.
The Court must finally note that, according to the recollections of both Hylands, the sequence of the playbacks began with the "MA/M" tape from the year 1993. Even if Mrs. Crowell's reaction to that tape could fairly be described as spontaneous, which in this Court's judgment it cannot, that replaying and her puzzled, reflective reaction to it preceded by at least several minutes the playing of the "Ready to Go" tape at issue in this case. By the time the latter tape was played for her, Mrs. Crowell had already had occasion to reflect back on the puzzling safe deposit key replacement incident and to remember clicking sounds on her telephone line when she made telephone calls in the past. In short, she had already come to realize the significance of the discovery of the tapes by the time the "Ready to Go" tape was finally played for her, further ensuring that her verbal reactions to the playing of that second tape were products of sad reflection, not of uncontrolled shock or excitement.
For all of the foregoing reasons, the Court concludes that Mrs. Crowell's statements to the Hylands after the tapes of her recorded phone conversations were played for her were not "made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation[, . . . like] exclamations of pain." Perry v. Haritos, supra, 100 Conn. at 485, 124 A. 44 (1924). Accordingly, because the "probability of [their] falsehood is [not] so remote as to be negligible[;] Id., they are inadmissible as spontaneous utterances under Code § 8-3(2).
D. Residual Exception
The fourth and final claim made by the State on this Motion is that even if none of Mrs. Crowell's oral or written statements are admissible under any other exception to the hearsay rule, most should nonetheless be admitted under the "residual exception" to that rule. The residual exception, which was first recognized in Connecticut case law in 1977, is codified as follows in Section 8-9 of the Connecticut Code of Evidence:
Sec. 8-9 Residual Exception
A statement that is not admissible under, any of the foregoing exception is admissible if the court determines that (1) there is a reasonable necessity for the admission of the statement and (2) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule.
So written, Section 8-9 obviously establishes two basic requirements for the admission of an out-of-court statement as residual hearsay: first, that there be a reasonable necessity for the admission of the statement; and second, that the statement be supported by guarantees of trustworthiness and reliability equivalent to those that are essential to the admissibility of other statements under traditional exceptions to the hearsay rule. According to the official Commentary to the Code,
Reasonable necessity" is established by showing that "unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources.
Commentary to Code § 8-9 ( quoting State v. Sharpe, . . . 195 Conn. [651,] 665[, 491 A.2d 345 (1985)]. The Commentary further provides that, "[i]n determining whether the statement is supported by guarantees of trustworthiness and reliability,"
Connecticut courts have considered factors such as the length of time between the event to which the statement relates and the making of the statement; e.g. State v. Outlaw, 216 Conn. 492, 499, 582 A.2d 751 (1990); the declarant's motive to tell the truth or falsify; e.g., State v. Oquendo, . . . 224 Conn. [635,] 667, [ 613 A.2d 1300 (1992)]; and the declarant's availability for cross-examination at trial. E.g., id. 668; O'Shea v. Mignone, 35 Conn.App. 828, 838, 647 A.2d 37, cert. denied, 231 Conn. 938, 651 A.2d 263 (1994).
Commentary to Code § 8-9.
The State claims, more specifically, that each of the following out-of-court statements by Mrs. Crowell should be admitted under the residual exception: Mrs. Crowell's oral statements to the Hylands when they first played the taped conversations for her on Labor Day Weekend of 2000; her September 14, 2000 complaint letter to Supervising Assistant State's Attorney Sedensky, and the substantively identical letter that she signed but never sent; and the later written statements she gave to Inspector Zigmont on January 8 and April 3, 2001. In support of this claim, it argues initially that there is reasonable necessity for admitting the proffered statements into evidence because without at least one of them, the State will be unable to prove that Mrs. Crowell did not consent to the interception and recording of the conversation here at issue.
The defendant concedes, as he must, that in the absence of his deceased mother's testimony, the State will be unable to prove that she did not consent to the taping of the telephone conversation here at issue, or thus to convict him of eavesdropping in this case, unless it is permitted to use at least one of her proffered out-of-court statements against him at trial. Notwithstanding that concession, however, the defendant claims that there is no reasonable necessity for the admission of any such statement against him because the State assertedly failed to use due diligence to ensure that her testimony would be available for trial. In particular, the defendant faults the State for not seeking permission to take a deposition of Mrs. Crowell until nearly three years after it first brought this case against him, even though it was aware from the outset both of the importance of her testimony and of her advancing age and failing health. By not moving for a deposition until the very eve of her death, by which time it had already become impossible to depose her, the State assertedly has only itself to blame for not preserving her testimony in usable form.
The State scoffs at the foregoing argument, noting that the defendant has cited no authority to support it and claiming that the reason for that omission is that the law imposes no duty on the party seeking admission of an unavailable declarant's statement under the residual hearsay exception to use due diligence to preserve the defendant's testimony or obtain other evidence of comparable value from the same or different sources to use at trial. In this, however, the State is incorrect, for our courts have long held that there can be no reasonable necessity to admit an absent declarant's statement as residual hearsay unless the proponent of the statement proves that the declarant is unavailable, and that, in turn, has been held to require a showing that he used due diligence to procure the defendant's attendance at trial. State v. Summerville, 13 Conn.App. 175, 180, 535 A.2d 818 (1988) (citing State v. Weinrib, 140 Conn. 247, 251, 99 A.2d 145 (1953) for the proposition that, "In meeting his burden of proving the unavailability of a declarant, the proponent of proffered hearsay testimony must demonstrate that he has used due diligence to procure the attendance of the absent witness.") What "is required by the proponent of the hearsay testimony," to meet this due diligence requirement, "is a good faith effort to procure the declarant's attendance." State v. Summerville, supra, 13 Conn.App. at 181 (holding that the defendant did not meet his burden of proving, the unavailability of a missing declarant, or thus that there was a reasonable necessity to admit the declarant's statement under the residual exception to the hearsay rule, when all he showed was that he could not find any person of the declarant's name in the particular out-of-state town where he was believed to be). Since Section 8-9 of the Code, to reiterate, makes residual hearsay inadmissible if the facts contained in it may be lost "either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources[;]" Commentary to the Code; logic would suggest that the proponent's failure to use due diligence to obtain "evidence of the same value . . . from the same or other sources" would be no less fatal to the admissibility of the statement than failure to use due diligence to procure the declarant's attendance at trial. Hence, failure to demonstrate the use of such due diligence to prevent the loss of facts contained in the witness's proffered statement, including good-faith efforts to depose the declarant about those facts once it was learned that she might be unavailable to testify at trial, makes the proffered statement inadmissible.
On the record before this Court, there is evidence that shortly before Mrs. Crowell's death, the State sought permission from the Court to take her deposition for the purpose of preserving her testimony for later use at trial. Unfortunately, however, the Court has no basis determining if that effort, though clearly unsuccessful, was nonetheless reasonable in light of all the circumstances then existing, including, especially: how long the State knew of Mrs. Crowell's final illness before it finally moved for permission to depose her; what it learned about that final illness in the course thereof, including its likely impact, as then projected, on her availability to testify at trial; and whether, in light of her mental and physical condition from the time the State first got notice of her illness and of its potential impact on her availability to testify at trial, she could have been deposed. If Mrs. Crowell's final illness came upon her suddenly, transforming her from a mentally alert, reasonably healthy nonagenarian into a completely incapacitated person virtually overnight, the State can certainly not be faulted for not attempting to depose her earlier and failing to depose her immediately after its motion was filed. If, on the other hand, Mrs. Crowell's final illness came upon her gradually, leaving many weeks or months from the time the State first learned of it and got notice of her possible unavailability for trial until the time it finally filed its motion for permission to depose her, then its belated effort to preserve her testimony might not have been a reasonable effort, particularly if its unjustified delay resulted in the loss of a reasonable post-notice opportunity to depose her when, despite her failing health, she remained strong and alert enough to be deposed.
Because the State has not yet met its burden of proving that its efforts to preserve Mrs. Crowell's testimony for later use of trial were reasonable, the Court rejects its claim that her statements are admissible under the residual exception to the hearsay rule. It does so, however, without prejudice to the State's right to lay a further foundation for their admissibility should that issue ever be reached.
Even, however, if the State were able to clarify the circumstances in which it sought to preserve Mrs. Crowell's testimony in such a way as to demonstrate the reasonableness of its efforts to that end, it would still be required to prove, as to any of her out-of-court statements it seeks to admit, that "the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule." Code § 8-9(2). For the following reasons, the Court concludes that none of the Mrs. Crowell's proffered statements are so supported, and thus that none of them is admissible under the residual exception to the hearsay rule.
In attempting to justify its claim that Mrs. Crowell's proffered statements are as trustworthy and reliable as those admitted under traditional exceptions to the hearsay rule, the State makes the following arguments. As to her oral statements to the Hylands, made after the "MA/M" and "Ready to Go" tapes were first played for her on Labor Day Weekend of 2000, it claims initially that they are reliable because they satisfy the state-of-mind and spontaneous utterance exceptions to the hearsay rule, whose applicability to this case the Court has already rejected. The state-of-mind exception is concededly not a traditional exception to the hearsay rule, and in any event it has no application to this case because the only state of mind those statements could conceivably have evidenced was that with which Mrs. Crowell spoke when she made the statements themselves. Mrs. Crowell's state of mind when she made the subject statements is simply irrelevant to whether or not she consented to the taping of the May 14, 2000 telephone conversation here at issue. The statements were not spontaneous utterances for all the reasons set forth in Part II C of this Memorandum of Decision, above. In the circumstances in which they were uttered, they lacked the qualities of unreflective un-self-interested spontaneity that guarantees the trustworthiness of true spontaneous utterances.
The State also argues that these statements possessed particularized guarantees of trustworthiness because they were made to a close relative, within the defendant's own home, shortly after she became aware of the commission of the crime and eight months before the defendant's arrest. In support of this claim, the State cites but does not explain its reliance upon the case of State v. Rivera, 268 Conn. 351, 368-71, 844 A.2d 191 (2004).
This argument, however, is unsupported by Rivera, which involved a special kind of particularly reliable hearsay which this case does not involve, to wit: a declaration against penal interest. The statement's reliability was found to stem not only from its self-inculpatory, non-self-interested character, but from the fact that it was made in confidence, on the declarant's own initiative, to close family members. The latter factors were found to be important because they suggested both the non-coerciveness of the atmosphere in which he made the self-inculpatory statement and the lack of any motivation to falsify, as might have been the case had he been in custody, and thus been desirous of appearing to cooperate.
In this case, by contrast, the declarant's statement to the Hylands was not against interest, penal, pecuniary or otherwise, but very much in her interest for obvious reasons. The statement concerned tapes found in the declarant's own basement — a place she did not go to often, but did in fact go to from time to time. One such tape contained a recording not only of her voice, but of those of the Hylands, who confronted her with the tapes and admittedly thought that she personally had recorded them or caused them to be recorded. If that in fact was true, and she admitted it to the Hylands, her admission would clearly have been against her interest, for it would have revealed a breach of trust, loyalty and/or confidence by her that would have been hard to justify or repair. Her incentive was powerful not to make such an admission. Hence the cozy, family setting where the tapes were played and the statements were made, though surely arranged by the Hylands to promote Mrs. Crowell's comfort and lessen her shock if she in fact was a victim of the maker of the tapes, was not conducive to truth telling if she personally made them or authorized their making by others. The Court has no basis for deeming the statement reliable without presuming the defendant guilty, which it will not do.
There is nothing else about the declarant's oral statements, moreover, that shows them to be supported by guarantees of trustworthiness and reliability equivalent to those essential to statements admitted under other traditional hearsay exceptions. Mrs. Crowell, in uttering them, was not contemplating her imminent death, as required to establish the reliability of a dying declaration. Nor was she reporting her mental or physical condition to a person known or believed to be involved in the rendering of medical diagnosis, care or treatment. Nor, finally, did she make the statements in a setting where she was subject to cross-examination by this defendant or any person acting in his interest. In short, her statements were simply unreliable hearsay that have no place in a criminal trial.
If Mrs. Crowell's oral statements are not sufficiently reliable or trustworthy to warrant their admission under the residual exception to the hearsay rule, then surely neither do her later letters to SASA Sedensky, drafted, edited and redrafted by her son-in-law after substantial discussions with her, nor her months-later statements to Inspector Zigmont, in January and April of 2001, are worthy of such treatment. They, of course, were not spontaneous, as all were deliberately elicited from her and, with the exception of her brief handwritten note of April 3, 2001, all were written in paraphrase by her interlocutors: Mr. Hyland for her letters to SASA Sedensky, and Inspector Zigmont for her statement of January 8, 2001. Whatever opportunities for contrivance existed on Labor Day Weekend of 2000, when the Hylands first played the tapes for Mrs. Crowell over three months after the "Ready to Go" tape was made, was surely even greater when, upon further reflection, she spoke to Mr. Hyland and reviewed and approved his letter, then spoke to Inspector Zigmont and reviewed and signed his draft of her first statement. These statements, like the declarant's oral statements, were not against interest in any way, but in fact were completely consistent with Mrs. Crowell's original denial of knowledge of or complicity in the making of the tapes. They could easily have been the product of many months of reflection, both before and after they were first made, then played for her by the Hylands. Accordingly, they lack intrinsic indicia of trustworthiness and reliability of the kind associated with spontaneous utterances.
Indeed, the State's only specific argument as to why the letters to SASA Sedensky and the statements to Inspector Zigmont are reliable is that, far from spontaneous, they were assertedly the products of serious reflection and deliberation. On this score, the State points especially to the process by which the initial letter to SASA Sedensky was reviewed, discussed, edited, then signed, only to be withheld for a week before a second, substantively identical letter was signed and sent.
Again, however, this process does not lend particularized credibility to a hearing statement, whether or not it is made to the police. It was not made against interest, penal, pecuniary or otherwise, it was in Mrs. Crowell's self-interest to disclaim any breach of loyalty, trust or confidence to her daughter and son-in-law when she engaged in the recorded telephone conversation with them, and, of course, it was not uttered in circumstances where the declarant was exposed to cross-examination. In short, neither the letters nor the later statements made by Mrs. Crowell to Inspector Zigmont are in any way supported by guarantees of trustworthiness and reliability of the kinds deemed essential to the admission of other statements under traditional exceptions to the hearsay rule.
III. CONCLUSION
Having concluded that none of the proffered statements is admissible under any recognized exception to the hearsay rule, this Court has no occasion to reach the constitutional question raised by the parties as to whether such statements, if admissible under state law, are nonetheless inadmissible under the Sixth and Fourteenth Amendments, as interpreted and applied in Crawford v. Washington, U.S. 124 S.Ct. 1354, 158 L.Ed.2d (72 U.S.L.W. 4229, March 8, 2004) (2004). The statements are hereby ruled inadmissible, for all of the above-stated reasons, under Connecticut common law, as now codified in Sections 8-3 and 8-9 of the Connecticut Code of Evidence.
Having reached the foregoing conclusion, the Court will now set this case down for an immediate trial unless the State promptly moves to dismiss under State v. Ross, 189 Conn. 42, 454 A.2d 266 (1983), on the ground that, in light of this ruling, it no longer has any evidence that Mrs. Crowell did not consent to the taping of her May 14, 2000 telephone conversation with the Hylands, as required by law. See Washington v. Meachum, 238 Conn. 692, 711, 680 A.2d 262 (1996). Any such motion must be filed not later than March 25, 2005.
IT IS SO ORDERED.
Michael R. Sheldon, J.