The state Supreme Court has ordered a new trial for the Ledyard handyman convicted of kidnapping and assaulting Stonington teacher Leslie Buck in May 2002, the day before she mysteriously died in an apparent fall down a flight of stairs at her home.
The court ruled that statements Buck made to both a police dispatcher and a responding officer, during which she identified Russell Kirby as her abductor, were made after she was back in the safety of her home and should not have been admitted as evidence at Kirby's trial.
"I'm disappointed with this ruling,'' said Chief State's Attorney Kevin Kane, who prosecuted Kirby in Superior Court in New London before assuming the chief's post last month. "It's been a hard case to get to the bottom of and this certainly doesn't make it easier. There are still some unanswered questions that everyone is working hard to solve.''
In April of this year, detectives with search warrants for Buck's home and her husband's Stonington business resumed their hunt for clues in her death. Police have declined to say what they were looking for and what, if anything, they found.
And in August, court filings authored by attorneys for Buck's estate revealed evidence they say shows that Buck's death was a homicide and that secret police information points to her husband, Charles Buck, as the killer. Those filings are part of pending civil litigation in the case.
No one has ever been charged in Leslie Buck's death, and an autopsy showing she died of head injuries never says how those injuries occurred. The state medical examiner's office ruled the manner of her death "undetermined.''
Kirby, now 68, was sentenced to 21 years in prison after he was convicted of second-degree kidnapping and third-degree assault. He was friends with Buck's husband and abducted Buck after she returned home from a meeting with other teachers on the evening of May 2, 2002.
Kirby tied Buck's wrists, pushed her into her own car, drove to his house, then drove around with her in the car. He stopped at one point to untie her, then continued to drive around.
He stopped at another point, along the shoulder of I-95 in Mystic, because he heard a thump and thought he had hit something. Although he took the keys with him, Buck fished a spare key from her pocketbook and drove away, leaving Kirby on the side of the road.
Charles Buck notified police of his wife's failure to return home at about 10:30 p.m. He called back at 11:07 to say his wife had returned home.
Stonington dispatcher Allyson Gomes could hear a hysterical Leslie Buck in the background. Eventually Buck spoke directly to Gomes, and detailed the abduction.
Stonington Officer Timothy Thornton, who had been dispatched by Gomes, then arrived at the Bucks' home and took a detailed statement from Leslie Buck.
At Kirby's trial, Thornton and Gomes both testified about what Leslie Buck had told them. They did so under the "excited utterances'' exception to the rule of evidence that bars most hearsay testimony, especially when the person who made the utterances is unavailable to testify.
The state Supreme Court justices, in their unanimous decision, relied on a recent U.S. Supreme Court ruling that was published in June -- six months after the arguments in the Kirby case.
The nation's highest court, ruling on a pair of domestic violence cases, narrowed the parameters of when "excited utterances'' made to police dispatchers and responding officers can be used when there has been no opportunity for defense counsel to cross-examine the person who made the statements. The court said such statements are admissible only when they are made in the course of an ongoing emergency, and the information sought by the dispatcher or officers is geared to resolving the crisis, rather than building a criminal case.
Connecticut's highest court, applying these standards, ruled that Kirby's constitutional right to confront his accuser was violated by the admission of the statements by Thornton and Gomes.
"A review of Gomes' conversation with [Leslie Buck] makes clear that the primary purpose of the call was to investigate and apprehend a suspect from a prior crime, rather than to solve an ongoing emergency or crime in progress at the time of the call,'' Justice Flemming L. Norcott Jr. wrote. "The call at issue was made after the emergency had been averted and [Buck] was no longer under any threat from [Kirby] because she already had escaped and left him stranded on the side of the road.''
Buck's statements to Thornton were similarly inadmissible, the court ruled, because Thornton's questions were "directed not at seeking to determine what is happening, but rather what happened. ... An emergency with respect to [Buck] had ceased because the alleged crimes were no longer in progress and she was rendered protected by Thornton's presence at her home.''
The court, however, upheld the admission of Kirby's statements to police, who showed up at his house at 4:30 a.m. on May 3, 2002. He declined to leave his house, but invited the police officers inside. Leslie Buck's keys were on his kitchen counter. In response to one officer's questions about whether Kirby knew why they were there, Kirby replied, "yes,'' and asked if it was about Buck. He then calmly recounted his actions to the officers. Those statements will be admissible if Kirby is prosecuted again.
The court ruled that Kirby was not in custody when he made those statements, and therefore there was no requirement that the officers read him his Miranda rights before initiating that conversation.
The court noted that the officers never drew their guns and did not handcuff him until after he admitted to the crime.
The testimony of emergency medical technician Jeremy Knapp, who treated Leslie Buck initially, is still admissible under a medical treatment exception to the hearsay rule. But Buck never identified her assailant during her conversation with Knapp about her injuries and symptoms, and his testimony will be of marginal value in a new trial.
During Kirby's trial, his lawyer, Jeremiah Donovan, fought unsuccessfully to block prosecutors from using the 911 tape of Buck's statements to the police dispatcher as evidence.
Donovan said Tuesday that he did not know if he would represent Kirby -- who is being held on an appeal bond -- in another trial in a case Donovan acknowledged is full of intrigue.
"The plot of this case is so twisted and complicated that this is one more turning and I am sure there will be many a future turn before this case is resolved,'' Donovan said.
Kane, who said late Tuesday afternoon that he had not yet read the state Supreme Court's entire decision, said he would decide whether to retry the case based on "what evidence we're left with. I have to determine what kind of case we have if we were to go to trial.''
Stonington Police Chief David P. Erskine who, along with lead Det. Sgt. David Knowles, attended parts of Kirby's trial, said that while investigators were disappointed with Tuesday's ruling, they still believe there's enough evidence against Kirby to get a conviction.
"I feel confident that with a retrial with Kevin Kane and my officers, we would succeed again,'' Erskine said.