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STATE OF CONNECTICUT v. SHANAN A.

WILLOUGHBY

(AC 35863)

Beach, Alvord and Harper, Js.

Argued September 9—officially released November 4, 2014

(Appeal from Superior Court, judicial district of New

London, geographical area number twenty-one,

Jongbloed, J.)

Sandy M. Moore, for the appellant (defendant).

Jacob L. McChesney, special deputy assistant state’s

attorney, with whom, on the brief, were Michael L.

Regan, state’s attorney, and Christa L. Baker, assistant

state’s attorney, for the appellee (state).
Opinion

ALVORD, J. The defendant, Shanan A. Willoughby,

appeals from the judgment of conviction,rendered after

a jury trial, of possession of marijuana with intent to

sell in violation of General Statutes § 21a-277 (b),1

interfering with an officer in violation of General Statutes § 53a-167a, forgery in the second degree in violation of General Statutes § 53a-139, and criminal

impersonation in violation of General Statutes § 53a130. On appeal, the defendant argues that the trial court

(1) incorrectly admitted testimony of a police officer

that he had received information that the defendant was

involved in a shooting and drug sales without issuing

a contemporaneous limiting instruction specifying the

purpose for which the evidence was to be considered,

and (2) improperly denied his motion to suppress

because the evidence was obtained as a result of an

illegal motor vehicle stop. We affirm the judgment of

the trial court.

The following facts were found by the court. Police

Officer Jason Calouro was patrolling the area of Main

Street in downtown Norwich on November 18, 2011,

when Calouro observed the defendant entering the passenger side of a vehicle after parting ways with another

person. Calouro observed the vehicle pull into traffic

without using a signal and cross a double yellow line.

After witnessing the motor vehicle violations, Calouro

pulled the vehicle over.2 Upon approaching the vehicle,

Calouro observed the defendant, seated in the passenger seat, move his hand behind himself to the small of

his back. On the basis of the defendant’s movement

and prior information Calouro had received that the

defendant had been involved in a shooting and drug

sales, Calouro believed he might be concealing a

weapon. Calouro asked the defendant to exit the vehicle, and he conducted a patdown of the defendant’s

outer clothing.

While conducting the patdown, Calouro felt a hard

item the size of a golf ball in the area of the defendant’s

buttocks. When asked what the item was, the defendant

swung his elbow into Calouro’s shoulder and attempted

to get away. The defendant actively resisted Calouro’s

attempts to secure him and was not subdued until

Calouro received assistance from another officer. At

some point during the struggle, the item fell from the

defendant’s leg, and he kicked it under the car. The

item, a plastic bag containing a substance that tested

positive for cocaine, was recovered.

The defendant was brought to the Norwich Police

Department, where he provided an identification card

bearing the name Ibatafari Lowe. He also signed a notice

of rights form under the name of Ibatafari Lowe before

admitting that he was actually Shanan Willoughby. The

defendant additionally made statements that he sold
narcotics and provided consent to officers to search

his apartment, where the officers located marijuana

and currency.

On January 29, 2013, the defendant was found guilty

of possession of marijuana with intent to sell, interfering with an officer, forgery in the second degree, and

criminal impersonation. The defendant was found not

guilty of possession of narcotics in violation of General

Statutes § 21a-279 (a), possession of crack cocaine with

the intent to sell in violation of General Statutes § 21a278 (b), and assault of a police officer in violation of

General Statutes § 53a-167c. On June 21, 2013, the

defendant was sentenced to seven years incarceration,

suspended after five years, and three years probation.

This appeal followed. Additional facts will be set forth

as necessary.

I

The defendant first claims that the admission of Officer Calouro’s testimony violated the hearsay rule. The

defendant challenges the portion ofCalouro’s testimony

in which he recounted statements made to him concerning the defendant’s involvement in a shooting and drug

sales. Specifically, the defendant claims error in the

court’s contemporaneous instruction to the jury not to

consider the challenged statements for the truth of the

matter asserted. The defendant asserts that this contemporaneous instruction was vague and claims that the

jury ‘‘received a conflicting message’’ as to the purpose

of Calouro’s testimony. The defendant contends that the

statements were ‘‘offered for the truth of the statement

because the inference is that Officer Calouro would

not have acted if he did not believe the truth in the

statements of the unnamed witnesses.’’

The following additional facts are relevant to the

defendant’s claims. At trial, the state called Calouro to

the witness stand to testify regarding his interaction

with the defendant. In addition to Calouro’s testimony

concerning the effectuation of the stop, Calouro testified regarding the basis for his belief, at the time he

approached the vehicle, that the defendant might be

armed. Calouro explained that besides observing the

defendant move his hand behind himself to the small

of his back, he also had previously received information

that the defendant had been involved in a shooting

and was involved in drug sales. Defense counsel then

objected to this testimony, and counsel for the state

indicated that it was not being offered for the truth of

the matter. The court overruled the objection,

instructing the jury that it was not to take the testimony

for the truth of the matter asserted.3 On cross-examination, defense counsel followed up with Calouro and

questioned him further about his receipt of this information.

In the final charge to the jury, delivered on January
24, 2013, the day after Calouro’s testimony was given,

the court instructed the jury that certain statements,

including those made to the witness ‘‘regarding a shooting and prior narcotics dealing,’’ were offered only to

show ‘‘the basis for the witness’ beliefs or actions,’’ and

further, that such statements were not offered to prove

the truth of those matters.4 No objection was made to

the instruction as delivered.5

We first set forth the standard of review that guides

our analysis. ‘‘To the extent [that] a trial court’s admission of evidence is based on an interpretation of the

[Connecticut] Code of Evidence, our standard ofreview

is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether

a hearsay exception properly is identified are legal questions demanding plenary review. . . . We review the

trial court’s decision to admit evidence, if premised on

a correct view of the law, however, for an abuse of

discretion.’’ (Citation omitted; internal quotation marks

omitted.) State v. Foster, 293 Conn. 327, 333–34, 977

A.2d 199 (2009).

It is settled law that out-of-court statements that are

not offered to establish the truth of the matter asserted

are not hearsay. ‘‘[A]n out-of-court statement offered

to prove the truth of the matter asserted is hearsay.

. . . If such a statement is offered for a purpose other

than establishing the truth of the matters contained in

the statement, it is not hearsay.’’ (Citation omitted.)

State v. Esposito, 223 Conn. 299, 315, 613 A.2d 242

(1992); see also State v. Crafts, 226 Conn. 237, 253, 627

A.2d 877 (1993) (‘‘[a]n out-of-court statement is hearsay

. . . only if it is offered to prove the truth of the matter

asserted in the statement’’). ‘‘Statements of declarants

offered to show their effect on the listener, not for the

truth of the contents of the statements, are not hearsay

and are admissible.’’ Dinan v. Marchand, 279 Conn.

558, 572, 903 A.2d 201 (2006).

The challenged statements, which were that the

defendant had been involved in a shooting and drug

sales, were made to Calouro, who then testified at trial

that he had received this information. A review of the

record leads us to conclude that the out-of-court statements were admitted to show their effect on Calouro,

specifically, the basis for his belief that the defendant

might have been armed, and not to prove that the defendant had indeed participated in either of these activities.

Accordingly, the statements did not constitute hearsay,

and the court did not abuse its discretion in admitting

Calouro’s testimony.

The defendant further argues that ‘‘[t]here should

have been some guidance during the trial as to what

specific issue the admitted hearsay evidence was

intended to support, at the time the evidence was admitted.’’ In fact, our case law reveals that the court is not

required to give a contemporaneous limiting instruction
specifying the purpose for which statements may be

considered. ‘‘[A]lthough it is acceptable for a trial court,

in its discretion, to give a contemporaneous limiting

instruction to the jury, there is no rule of practice or

statutory requirement that the court must give such an

instruction contemporaneously with the introduction

of such testimony.’’ (Internal quotation marks omitted.)

William C. v. Commissioner of Correction, 126 Conn.

App. 185, 190, 10 A.3d 115, cert. denied, 300 Conn. 922,

14 A.3d 1007 (2011).6

The defendant provides no legal support for his contention that the court’s contemporaneous instruction

to the jury that it was not to take the statements for the

truth of the matter asserted was somehow insufficient

because it did not also relate the permissible purpose

for which the testimony could be considered, where

the permissible purpose was clearly conveyed to the

jury in its final charge.7

In this case, the jury was

instructed at the time of the testimony that it was not

to consider the statements for the truth of the matter

asserted and was further instructed in the final charge

that it was to consider the statements only for the purpose of showing the basis for Calouro’s beliefs or

actions.8 Accordingly, we conclude that the trial court

did not abuse its discretion in admitting the testimony

for a nonhearsay purpose.

II

With respect to the defendant’s second claim, which

is that the court improperly denied his motion to suppress, the following additional facts are relevant. On

January 17, 2013, the defendant filed a motion to suppress the physical evidence that had been seized, any

statements he had made, and any identification testimony, arguing that the evidence should be excluded as

the fruit of an unlawful search. The defendant presented

two arguments in support of his claim that the search

was illegal. First, he argued that the motor vehicle stop

was pretextual and therefore unsupported by a reasonable and articulable suspicion. He alternatively argued

that even if the stop was justified, the patdown

exceeded the permissible bounds for an investigative

stop. The court held an evidentiary hearing on January

23, 2013. Calouro testified as to his previous knowledge

of the defendant9 and his interaction with the defendant

after stopping the motor vehicle. At the conclusion of

the hearing, the court orally denied the motion to suppress. On March 11, 2013, the court issued a written

memorandum of decision, concluding that the motor

vehicle stop was supported by a reasonable and articulable suspicion that was based on the observation of

motor vehicle violations and that the patdown was justified by ‘‘a substantial concern for officer as well as

public safety . . . .’’

We begin by noting our standard of review in connection with a motion to suppress. ‘‘[O]ur standard of
review of a trial court’s findings and conclusions in

connection with a motion to suppress is well defined.

A finding of fact will not be disturbed unless it is clearly

erroneous in view of the evidence and pleadings in the

whole record . . . . [When] the legal conclusions of

the court are challenged, [ourreview is plenary, and] we

must determine whether they are legally and logically

correct and whether they find support in the facts set

out in the court’s [ruling] . . . .’’ (Internal quotation

marks omitted.) State v. Ocasio, 112 Conn. App. 737,

742–43, 963 A.2d 1109, cert. denied, 292 Conn. 904, 973

A.2d 106 (2009).

The defendant makes two main arguments in support

of his claim that the trial court improperly denied his

motion to suppress evidence obtained as a result of the

motor vehicle stop. We disagree with both and will

examine them in turn.

First, we consider the defendant’s contention that

the court improperly concluded that the motor vehicle

stop was justified by a reasonable and articulable suspicion. The defendant claims that Calouro improperly

relied solely on the information that he had received,

which was that the defendant had been involved in a

shooting and drug sales, to look for a reason to stop

the motor vehicle. He claims that Calouro immediately

focused on the defendant by approaching the passenger

side, and that this, combined with Calouro’s testimony

that he was looking for a reason to stop the car, rendered the stop impermissible.

‘‘A stop pursuant to Terry v. Ohio [392 U.S. 1, 88 S.

Ct. 1868, 20 L. Ed. 2d 889 (1968)] . . . is legal if three

conditions are met: (1) the officer must have a reasonable suspicion that a crime has occurred, is occurring,

or is about to occur; (2) the purpose of the stop must

be reasonable; and (3) the scope and character of the

detention must be reasonable when considered in light

of its purpose. . . . Because a reasonable and articulable suspicion is an objective standard, we focus not on

the actual state of mind of the police officer, but on

whether a reasonable person, having the information

available to and known by the police, would have had

that level of suspicion.’’(Citations omitted; internal quotation marks omitted.) State v. Cyrus, 297 Conn. 829,

837, 1 A.3d 59 (2010). ‘‘An appeal challenging the factual

basis of a court’s decision that a reasonable and articulable suspicion exists requires that we determine, in light

of the record taken as a whole, (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the [court’s] conclusion that those

facts give rise to such a suspicion is legally correct.’’

(Internal quotation marks omitted.) State v. DelValle,

109 Conn. App. 143, 150, 950 A.2d 603, cert. denied, 289

Conn. 928, 958 A.2d 160 (2008).

The defendant does not challenge the trial court’s

finding that the operator of the motor vehicle ‘‘pulled
into traffic without signaling and crossed a double yellow line,’’ violations for which the operator was subsequently ticketed.10 We therefore examine only whether

the facts as found rise to the level of a reasonable

and articulable suspicion. It is settled law that a police

officer has the authority to stop a motor vehicle upon

commission of a motor vehicle violation. See State v.

Jones, 113 Conn. App. 250, 262, 966 A.2d 277 (‘‘[a] police

officer has the right to stop a motor vehicle operating

on a Connecticut highway even if the reason forthe stop

is only an infraction under our traffic laws’’ [internal

quotation marks omitted]), cert. denied, 292 Conn. 901,

971 A.2d 40 (2009). We thus conclude that the trial

court properly determined that Calouro possessed a

reasonable and articulable suspicion to stop the vehicle

on the basis of the observation of the motor vehicle violations.11

Having determined that the initial stop of the motor

vehicle was lawful, we next address the defendant’s

claim that the patdown search exceeded the bounds of

the permissible stop. The defendant specifically argues

that the movement of his hand behind himself to the

small of his back was not sufficient to lead Calouro to

reasonably believe that he was armed,12 and further,

that there were no facts indicating that the information

Calouro received concerning the defendant’s involvement in a shooting was true.

A police officer, after stopping a vehicle for a motor

vehicle violation, may lawfully direct an occupant to

step out of the vehicle. State v. Dukes, 209 Conn. 98,

122, 547 A.2d 10 (1988). Furthermore, ‘‘[i]f, during the

course of a lawful investigatory detention, the officer

reasonably believes that the detained individual might

be armed and dangerous, the officer may undertake a

patdown search to discover weapons.’’ (Internal quotation marks omitted.) State v. Tuck, 90 Conn. App. 872,

880, 879 A.2d 553 (2005). ‘‘In ascertaining whether reasonable suspicion existed for the patdown search, the

totality of the circumstances—the whole picture—must

be taken into account.’’ (Internal quotation marks omitted.) State v. Starks, 94 Conn. App. 325, 331, 892 A.2d

959, cert. denied, 278 Conn. 918, 901 A.2d 44 (2006).

The court made findings of fact that adequately supported its determination that the patdown was justified

by a reasonable suspicion that the defendant may have

been armed.13 First, the court found that Calouro had

observed the defendant move his hand behind himself

to the small of his back, which Calouro knew from his

training and experience to be a spot where weapons

are often carried. ‘‘[A] suspect’s attempt to reach into

his pocket or some other place where a weapon may be

concealed is a fact that supports a reasonable suspicion

that the suspect is armed and dangerous.’’ (Internal

quotation marks omitted.) State v. Tuck, supra, 90 Conn.

App. 882. Second, the court found that Calouro had
received information that the defendant was a drug

dealer and may have been involved in a shooting. Third,

the court found that Calouro was aware that the defendant had been arrested for possession of drugs and

assault of a police officer. See State v. Starks, supra,

94 Conn. App. 329–31 (upholding trial court’s determination ofreasonable suspicion to conduct patdown during investigatory stop, where one consideration was

officer’s knowledge of defendant’s prior arrest for

assault on or interfering with police officer). Accordingly, we agree with the court that the patdown was

justified by a reasonable belief that the defendant may

have been armed and dangerous.

The judgment is affirmed.

In this opinion the other judges concurred.

1 We note that although the judgment file contains a scrivener’s error

indicating that the defendant was convicted of sale of a controlled substance,

other documents in the court file contain the correct charge, possession of

marijuana with intent to sell, of which the defendant was convicted.

2 The operator of the vehicle was subsequently released after being issued

a citation for the motor vehicle infractions of failure to signal and failure

to drive right.

3 On direct examination, Officer Calouro testified as follows:

‘‘[The Prosecutor]: And what did you observe [when approaching the

vehicle]?

‘‘[Officer Calouro]: As I was doing this, [the defendant] leaned forward

and put his hand behind him, like this, put his hand back down in the area

of the small of his back and leaned all the way back in his seat, which was

a little bit reclined at the time.

‘‘[The Prosecutor]: And let the record reflect that the witness has placed

his right hand on the small of his back and is leaning back in his chair.

‘‘The Court: It may.

‘‘[The Prosecutor]: And when you saw this, what, if anything, did this

mean to you?

‘‘[Officer Calouro]: I immediately thought that he may have a weapon. I

previously got information that he was involved in a shooting in the area

where he lived at the time, which was 219 Broadway, and there was another

individual that I spoke with that said he was involved in ongoing drug sales.

‘‘[Defense Counsel]: Objection, Your Honor. I’d ask that—there’s no direct

evidence that that took place. Ask that it be stricken.

‘‘The Court: [Prosecutor].

‘‘[The Prosecutor]: Don’t believe he’s offering it as direct evidence,

Your Honor.

‘‘The Court: You’re not offering it for the truth of the matter at this time?

‘‘[The Prosecutor]: No, Your Honor.

‘‘The Court: All right. Then, I’ll overrule the objection, and I’ll just indicate,

ladies and gentlemen, that you’re not to take that testimony for the truth

of the matter asserted.’’

We note that after the court instructed the jury that it was not to take

the statements for the truth of the matter asserted, defense counsel did not

request further contemporaneous instruction as to the purposes for which

the jury could consider the statements.

4 The court instructed the jury as follows: ‘‘You will recall that I have

ruled that some testimony was allowed for a limited purpose. One witness

testified about statements made to them regarding a shooting and prior

narcotics dealing. These statements were not offered to prove the truth of

those matters, but only to show the basis for the witness’ beliefs or actions.

You may consider such evidence if you believe it and further find that it

logically, rationally and conclusively supports the issue for which it was

offered by the state, but only as it may bear on that issue.

‘‘On the other hand, if you do not believe such evidence, or even if you

do, if you find that it does not logically, rationally and conclusively support

the issue for which it was offered by the state, namely, the basis for the

witness’ beliefs or actions, then you may not consider that testimony for

any purpose.’’

5 After charging the jury, the court inquired of counsel as follows:
‘‘The Court: All right. Let me just inquire, were there any objections to

the charge as delivered?

‘‘[The Prosecutor]: No, Your Honor.

‘‘[Defense Counsel]: I’m sorry, Your Honor. I was—

‘‘The Court: Any objections to the charge as delivered?

‘‘[Defense Counsel]: No objection, Your Honor.’’

6

In William C. v. Commissioner of Correction, supra, 126 Conn. App.

187–88, no contemporaneous limiting instruction was issued at the time of

constancy of accusation testimony. Only the court’s final charge to the jury

instructed as to the proper use of such testimony. Id., 190.

7 The defendant cites State v. Buster, 224 Conn. 546, 558, 620 A.2d 110

(1993), for our Supreme Court’s recognition that the trial court twice

instructed the jury as to the purpose for which it could consider certain

statements. The defendant cites not to the holding of Buster, but rather to

the Supreme Court’s discussion of the treatment of those statements by this

court in its review of the Buster defendant’s claims on appeal from the trial

court’s judgment of conviction. Ultimately, the case provides no support

for the defendant’s argument.

8 The defendant’s argument that the jury received a conflicting message

as to the purpose of Calouro’s testimony is equally untenable. The court’s

final instruction to the jury regarding the purpose for which the out-of-court

statements could be considered was clear, and the defendant does not

challenge this instruction on appeal. ‘‘The jury is presumed, in the absence

of a fairindication to the contrary, to have followed the court’s instructions.’’

(Internal quotation marks omitted.) State v. Francis, 148 Conn. App. 788,

825, 86 A.3d 1074, cert. granted on other grounds, 311 Conn. 940, 89 A.3d

349 (2014).

9 Calouro testified to being aware of the defendant prior to observing him

parting ways with another person on the day of the motor vehicle stop.

Calouro stated that ‘‘[o]ne of [the defendant’s] neighbors indicated that he

is known to deal drugs on Perkins,’’ ‘‘[t]hrough interviews with [an arrestee]

I learned that [the defendant] was a higher-end drug dealer,’’ ‘‘[t]he neighbor

indicated that he was involved in a shooting, they believe that there was a

shooting outside that he was—he was engaged in.’’ Last, Calouro stated, ‘‘I

was aware that [the defendant] had been arrested for narcotics as well as,

I believe, assault on a Plainfield police officer.’’

10 Despite the fact that the motor vehicle operator ultimately was ticketed

for the observed violations, the defendant argues that Calouro was not

effectuating the purpose of the stop and that he was unduly focused on the

defendant, as evidenced by the fact that Calouro initially approached the

passenger side of the vehicle. The defendant provides no authority to support

his argument that a motor vehicle stop, conducted after observation of

motor vehicle violations, would be rendered invalid by the officer’s decision

to approach the passenger side first. Furthermore, an officer might approach

the passenger side for a number of reasons. See, e.g., State v. Sward, 124

Conn. App. 546, 549, 5 A.3d 965 (2010) (‘‘[f]or safety reasons, and because

the defendant’s vehicle was partially parked in the right travel lane, [the

officer] approached the defendant’s car from the passenger’s side’’).

11 In response to the defendant’s argument that Calouro improperly relied

on the information he received as to the defendant’s involvement in a shooting and drug sales to look for a reason to stop the motor vehicle, we note

that ‘‘[i]t is well established that an officer’s subjective intent in pulling over

a motorist is irrelevant to the question of whether the officer’s conduct

violates the constitution.’’ State v. Burroughs, 288 Conn. 836, 852, 955 A.2d

43 (2008).

12 The defendant cites State v. Badgett, 200 Conn. 412, 430–31, 512 A.2d

160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), arguing

that ‘‘[f]urtive movements do not necessarily give rise to a presumption that

there are weapons in the car.’’ In Badgett, the court determined that the

warrantless search of a bag in a motor vehicle for weapons was not supported

by probable cause, a more stringent standard than reasonable and articulable

suspicion. Id. Our case law is clear, however, that a furtive movement may

be a factor in determining whether there exists reasonable suspicion to

believe that a detained individual is armed. State v. Butler, 296 Conn. 62,

75, 993 A.2d 970 (2010) (officers’ observation of furtive movement toward

car console was permissible consideration in determination of reasonable

suspicion to conduct protective search of console).

13 The defendant does not challenge the court’s findings of fact as to the

observation of the movement of his hand behind himself to the small of his

back or Calouro’s receipt of information as to the defendant’s involvement
in drug dealing or a shooting; the defendant’s challenge is only to whether

the shooting actually occurred. We therefore determine solely whether these

facts rise to the level of a reasonable suspicion that the defendant may have

been armed.