Opinion
No. CR 02-0558666
July 16, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
In 2004, the defendant was tried in the Hartford Judicial District under two informations for crimes in connection with two separate incidents. The first information concerned an armed robbery that had occurred on December 17, 2001, at a Burger King restaurant (the Burger King case). In that information, the defendant was charged with robbery in the first degree and conspiracy to commit robbery in the first degree. The second information concerned an armed robbery and homicide that had occurred on March 23, 2002, at Empire Pizza (the Empire Pizza case). In that information, the defendant was charged with felony murder, robbery in the first degree and criminal possession of a firearm. The trial court, Koletsky, J., consolidated the two cases for trial and the jury found the defendant guilty on all charges.
The defendant appealed the verdicts directly to the Supreme Court. In his appeal, the defendant raised multiple issues, including a claim that the trial court improperly had concluded that the evidence in each case was admissible in the other case to establish the existence of a common scheme or plan; and, significant for purposes of the instant motion, two claims of prosecutorial impropriety. With regard to the prosecutorial impropriety claims, the defendant asserted that: (1) the trial court improperly denied his "motion for a mistrial and motion for a new trial because the state, without prior notice to [him], elicited in-court identifications from two eyewitnesses who previously had not identified [him] as the perpetrator of the crimes" and (2) "the prosecutor improperly introduced facts not in evidence during [her] closing argument, thereby depriving [him] of his due process right to a fair trial." State v. Randolph, 284 Conn. 328, 331 (2007). Finding that the cross-admissibility of the evidence was improper, the Supreme Court reversed the defendant's convictions on that basis and remanded the matters for a new trial. Because that error was wholly dispositive of the appeal, and presumably because neither of the prosecutorial misconduct claims was deemed likely to arise on remand, the court did not address in any manner the merits of the misconduct claims. Id., 331 n. 2.
By motion dated April 14, 2009, the defendant, now upon remand, moves to dismiss the charges against him. In his primary claim, the defendant seeks dismissal on the ground that double jeopardy principles, as set forth in State v. Colton, 234 Conn. 683, 691-92 (1995), cert. denied, 516 U.S. 1140, 116 S.Ct. 972, 133 L.Ed.2d 892 (1996), bar further prosecution because his conviction in the original trial was secured by prosecutorial impropriety. In support of this claim, the defendant raises the very same allegations of prosecutorial impropriety which the trial court considered and rejected during the defendant's first trial, and which were raised, but never addressed, on appeal. In a second claim, the defendant requests that the matters against him be dismissed on the ground that he has been deprived of his constitutional right to a speedy trial.
Argument on the defendant's motion was held before this court on April 22, 2009. The court was directed at that time to a number of exhibits which were attached to the motion. In the defendant's opinion, the information contained in those exhibits is sufficient for a determination of the issues raised in the motion. He therefore did not request an evidentiary hearing, but did reserve the right to offer evidence at a later date if the court deemed the record inadequate. For the following reasons, the defendant's motion to dismiss is denied.
Those exhibits include, inter alia: (1) the statement of Julissa Chaparro; (2) the statement of Wanda Carrasquillo; (3) an arrest warrant affidavit pertaining to the Burger King case; (4) a portion of the transcript pertaining to Julissa Chaparro's testimony; (5) a portion of the transcript pertaining to Wanda Carrasquillo's testimony; (6) a portion of the transcript pertaining to the defendant's request for a mistrial; (7) a portion of the transcript pertaining to the state's closing argument; (8) a portion of the transcript pertaining to Detective Foley's testimony; and (9) a portion of the transcript pertaining to the defendant's motion for a new trial. Hereinafter, these exhibits will be cited to as "Def's Ex." and accompanied by a transcript page reference.
Consistent with the view of the defendant, the court has concluded that the record, as presented by the defendant through the attachments to his motion, is adequate for consideration of the defendant's claims. Therefore, the court has not asked the defendant to supplement the record through an evidentiary hearing.
FINDINGS OF FACT
The following facts have been derived from the exhibits attached to the defendant's motion. At the original trial, witness Julissa Chaparro testified for the state in connection with the Burger King case. During her direct testimony, Chaparro made an in-court identification of the defendant as one of the two masked men who robbed the restaurant. She stated that she recognized his eyes and nose and the color of his hair — features that she bad been able to see though the large eyeholes of the ski mask worn by the perpetrator during the robbery. On cross examination, Chaparro stated that she was certain of her identification of the defendant. Chaparro also said the police never showed her any photographs for identification purposes. Later in her testimony, however, Chaparro was questioned further about photographs. She testified that she did view "those photographs" prior to her testimony, but it is unclear which photographs the defense was referencing at that time.
Chaparro was questioned on cross examination as follows:
Q. The photographs that you were referring to; you've seen those before?
A. Yes.
Q. Okay. And is it because you had come in and viewed those photographs before your testimony?
A. Yes.
Q. And did you meet with your — with the state's attorney about your testimony today?
A. Yes.
Q. And did she tell you what sort of questions she might ask you?
A. Yes.
(Def's Ex., p. 109.)
Witness Wanda Carrasquillo testified for the state in connection with the Empire Pizza case. On direct examination, Carrasquillo stated that she looked at some photos shown to her by the police. She testified that she was able to pick out three people from the photos but was not able to identify anyone. She stated that she told the police she would need to see the body of the person to make an identification. She then made an in-court identification of the defendant as the person she saw running out of the pizza restaurant.
On cross examination, Carrasquillo was questioned about her pretrial discussions with the state's attorney. The defense inquired as to when Carrasquillo told the state's attorney that the defendant was the person she saw at Empire Pizza. Carrasquillo responded that she had met with the state's attorney prior to her testimony and the state's attorney showed her the photos she had viewed with the police shortly after the crime. Carrasquillo further testified that she pointed out the same three individuals for the state's attorney as she had for the police and told the state's attorney that she needed to see the person's whole body to make an identification. On redirect, Carrasquilo testified that she did not tell the state's attorney that she could absolutely identify anyone. She further stated that it was only at trial, when she saw the defendant in person, that she realized he was the man she saw in the pizza restaurant at the time of the crime.
Carrasquillo was questioned as follows:
Q. When did you tell [the state's attorney] that you could identify Mr. Randolph as the person you saw at Empire Pizza?
A. I had — I had met her before. And she showed me pictures and I told her that I needed to see the whole body to identify the person.
Q. Did she show you one picture or more than one picture?
A. She showed me the same pictures the police department showed me.
******
A. I just pointed out the same three persons that I pointed out before in the police department.
(Def's Ex., pp. 36-37.)
Carrasquillo was questioned as follows:
Q. Had you told me before you sat up there today that you could absolutely identify the person?
A. No.
Q. So it was when you saw Mr. Randolph today, the defendant —
A. Yes.
Q. — that you realized that he was the person you saw on the night of March 23rd?
A. Yes.
(Def's Ex., p. 38.)
After Carrasquillo's testimony, the defense requested a mistrial. The defense argued that Chaparro and Carrasquillo each participated with the state's attorney in an out-of-court identification procedure which had not been disclosed to the defense prior to trial. The defense asserted that the state's actions violated the due process requirement that the defense be made aware of any identification procedures conducted with a witness.
Specifically as to Chapparo, the defendant asserted that none of the documents disclosed to him provided any indication that Chaparro could actually make an identification. The state's attorney stated that she did not recall showing Chaparro any photographs because Chaparro had indicated that she had not previously looked at any photographs. Specifically, the state's attorney said that she "didn't want to taint [Chaparro] by showing her any photographs so I don't believe I ever did." (Def's Ex., p. 44.) The state's attorney further stated that she relied on her own hunches at trial concerning whether Chaparro would be able to make an in-court identification and that she did not know in advance what Chaparro's answer would be concerning the identification.
As to Carrasquillo, the defendant asserted that the documents disclosed to him indicated that Carrasquillo was unable to make an identification. In response, the state's attorney said that about a week prior to Carrasquillo's testimony, she showed Carrasquillo the same photo array that was shown to her by the police. Carrasquillo expressed at that time that she needed to see the whole person to make an identification. The state's attorney stated that she told Carrasquillo she might ask her in court if she could identify the defendant.
The trial court denied the defendant's request for a mistrial. In doing so, the court concluded that the state's discussion with Carrasquillo did not amount to an identification procedure and that the state had no obligation to advise the defense that Carrasquillo was going to be shown a photo array as part of the state's trial preparation. No specific findings were made concerning the state's preparation of Chaparro, and the defense neither requested an articulation, nor engaged in any further argument, concerning that witness.
After the denial of the mistrial request, the trial continued. At some point during the trial, Detective Foley testified regarding the identification of the defendant by an informant named Jose Cruz. Shortly thereafter, the court held a sidebar with counsel. The court then instructed the jury to disregard Detective Foley's testimony regarding Jose Cruz's out-of-court identification of the defendant.
The following testimony took place during Detective Foley's direct examination:
Q. Did you subsequently — you and Detective Dillon subsequently meet with Jose Cruz on March 27th, 2002?
A. Yes.
Q. And did Detective Dillon take a statement from [Jose] Cruz?
A. Yes.
Q. Did [Jose] Cruz identify a photo of an individual that he identified —
[The Defense]: Judge, objection.
The Court: Ground?
[The Defense]: It's hearsay.
The Court: No, it's an exception to our rules. The identification itself is permissible. You may answer.
By [the State]: (continuing)
Q. Did Jose Cruz identify a photo of an individual that he knows as PO on March 27th of 2002?
A. Yes.
Q. Did you subsequently learn the real name of PO?
A. Yes.
Q. And what was that?
A. Gordon Randolph.
(Def's Ex., pp. 26-27.)
Jose Cruz did not testify at the trial.
During closing argument, the state's attorney commented upon Detective Foley's testimony, and made certain references to the information provided to the police by Jose Cruz. At no time, however, did the defense object to these comments and references.
The relevant comments, as identified by the defendant, are as follow:
You have Detective Foley getting information on March 25, 2002 about PO . . . He corroborated [that] information and then subsequently there was a search warrant at the defendant's home . . . (Def's Ex., p. 24.)
Tito was told to you by Detective Foley that that was Jose Cruz, the individual who had provided the information about PO . . . and subsequently corroborated that in a statement on March 27th. (Def's Ex., p. 26.)
And, if you recall, on March 25th, two days after the crime, Detective Dillon . . . contacts Detective Foley and tells him about an informant that he has, Jose Cruz, also known as Tito . . . and that Mr. Cruz had talked about PO . . . (Def's Ex., p. 53.)
The jury found the defendant guilty on all of the charges. After the jury verdict but prior to sentencing, the defense made a motion for a new trial. In his motion, the defendant renewed and expanded upon the claims he had raised in his motion for a mistrial pertaining to photographs that were, or may have been, shown to the witnesses Carrasquillo and Chaparro. The motion advanced no other claims pertaining to the state's conduct at trial.
Specifically, the defendant did not raise the claim relating the prosecutor's reference, in closing argument, to Jose Cruz's identification of the defendant.
Reiterating the reasoning it earlier had expressed in denying the defendant's motion for a mistrial, the court denied the defendant's motion for a new trial. Moreover, in its ruling the court stated: "Now I would simply add that there was a — that that's what trial work is, and it was a good piece of trial work by the state to take a chance on the identification in court, which worked. The defense had ample opportunity to bring out in cross examination the fact that no identification had been made before. And all of that goes to the weight of the identification, grist for the jury's mill." (Def's Ex., p. 16.)
DISCUSSION I. Double Jeopardy
Generally, "the Double Jeopardy Clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of [the] insufficiency of the evidence." Oregon v. Kennedy, 456 U.S. 667, 676 n. 6, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). In Kennedy, the United States Supreme Court created a narrow exception to that rule. The Court held that double jeopardy also bars a subsequent prosecution if there was prosecutorial misconduct in the first trial and that misconduct goaded the defendant into seeking a mistrial. Id., 676.
"[T]he standard articulated by the United States Supreme Court in Oregon v. Kennedy, supra, 456 U.S. 679, also applies under the constitution of Connecticut for purposes of determining whether the prohibition against double jeopardy implied therein bars a defendant's reprosecution following a mistrial that was the result of prosecutorial misconduct." State v. Michael J., 274 Conn. 321, 360 (2005).
The Connecticut Supreme Court, persuaded by the Second Circuit's decision in United States v. Wallach, 979 F.2d 912 (2d Cir.), cert. denied, 508 U.S. 939, 113 S.Ct. 2414, 124 L.Ed.2d 637 (1992), expanded upon this principle in State v. Colton, supra. In Colton, the defendant had been tried three times for murder. Following the reversal of his conviction on his third trial and a remand to the trial court, the defendant filed a motion to dismiss, citing Wallach, in which he claimed that further prosecution was barred by double jeopardy due to prosecutorial misconduct at his third trial. In support of his motion, the defendant alleged that new evidence of prosecutorial misconduct had come to light since the date of his third trial and the appeal he had taken therefrom. The trial court denied the motion. The trial court concluded that Wallach only applied in cases where a defendant's previous conviction was reversed because of prosecutorial misconduct. State v. Colton, supra, 234 Conn. 695. The court therefore declined to consider the defendant's factual allegations of prosecutorial misconduct — allegations which were then being raised for the first time.
On appeal from the denial of the motion to dismiss, however, our Supreme Court held that the rule announced in Kennedy "logically should be extended to bar a new trial, even in the absence of a mistrial or reversal because of prosecutorial misconduct, if the prosecutor in the first trial engaged in misconduct with the intent to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct." (Internal quotation marks omitted.) Id., 696. The court found the expansion of Kennedy to be necessary in a case like Colton, where at least some of the evidence of the alleged prosecutorial misconduct was not acquired until after the completion of the trial and appeal. Id., 698. In its analysis, the court found no principled justification to distinguish between a case, like Colton, where the prosecutorial misconduct was, in part, clandestine and not discoverable until after the trial or appeal, and a case where the misconduct was apparent at the time of trial and thus was remedied by a motion for mistrial or on direct appeal. Id., 698. In other words, Colton expanded Kennedy to apply to the infrequent case; see id., 699; where the original trial resulted in a guilty verdict and " there had been clandestine prosecutorial misconduct designed to avoid an acquittal that the prosecutor believed was likely to occur in the absence of his [or her] misconduct." (Emphasis added.) State v. Butler, 262 Conn. 167, 173 n. 5 (2002).
A. Notice of Identification
In the present matter, the defendant claims that the state's attorney improperly elicited in-court identifications from two witnesses, Carrasquillo and Chaparro, who had participated, without notice to the defense, in an identification procedure with the state's attorney prior to their testimony. Citing Colton, the defendant seeks dismissal on the ground that double jeopardy principles bar a retrial because his conviction in the original trial was secured by this alleged prosecutorial impropriety. It is this court's opinion, however, that this type of double jeopardy claim can be raised on retrial only where, due to prosecutorial misconduct, a mistrial had been granted by the original trial court or a conviction had been reversed on appeal, or, where the claim of misconduct is based (at least in part) on new or belatedly discovered evidence. Consequently, Colton does not apply in a case, like that here, where (1) all aspects of the alleged prosecutorial impropriety had been brought (or at least could have been brought) to the attention of the trial court, (2) the trial court had fully considered and rejected the claim that misconduct occurred, and (3) that finding has not been overturned on appeal.
See State v. Michael J., supra, 274 Conn. 321.
See State v. Butler, supra, 262 Conn. 167; State v. Payne, 96 Conn.App. 488, cert. denied, 280 Conn. 913 (2006).
See State v. Colton, supra, 234 Conn. 683.
Judge Koletsky, who presided over the defendant's original trial, fully considered the prosecutor's alleged misconduct as part of the defendant's motion for a mistrial and motion for a new trial. In denying both motions, Judge Koletsky concluded that a prosecutor's showing of photographs to a witness prior to eliciting an in-court identification did not constitute misconduct. Thus, unlike in Colton, where the defendant sought to present a new claim, one that had not been considered by any court previously, the defendant here seeks to reargue an old claim which a court has already considered. Judge Koletsky has determined that no prosecutorial misconduct occurred at the defendant's trial. Because the Supreme Court did not reverse this determination on appeal, the original trial court's finding necessarily remains the law of the case.
Moreover, and again contrary to the situation in Colton, the defendant here advances no claim that any of the alleged prosecutorial misconduct occurred off-the-record or was belatedly discovered by the defendant in such a way as to have prevented the original trial court's review of the matter. The defense had every opportunity to make his case before Judge Koletsky. He could have further questioned the witnesses to flesh out exactly what photographs were shown to them by the police and state's attorney, or presented additional evidence to the original trial court for consideration. Indeed, the defendant does not appear to dispute this; he explicitly stated to this court that he was "satisfied" with the original trial court record. In other words, in this court's view, any insufficiency in the record results from the defendant's failure to perfect it, rather than from the fact that the misconduct was "clandestine, and therefore not discoverable until after [the] verdict or [the] appeal." State v. Colton, supra, 234 Conn. 698.
Given the absence of any new off-the-record evidence of misconduct, the defendant's motion to dismiss is, in actuality, nothing more than an appeal to this court to reconsider the identical issue which was considered and rejected by the original trial court both during the trial (in the context of the motion for mistrial) and after conviction (in the context of a motion for a new trial). Under the doctrine of collateral estoppel, this court may not undertake such a review.
The defendant has not attempted to distinguish the issues he raised to the original trial court from those he has raised to this court in the context of the instant motion to dismiss.
The doctrine of collateral estoppel precludes the relitigation of an issue that has once been determined by a final judgment. State v. Bonner, 110 Conn.App. 621, 630, cert. denied, 289 Conn. 955 (2008).
In sum, while the court in Colton expanded the principles articulated in Kennedy, it recognized that valid double jeopardy claims with facts analogous to those presented in Colton would arise only rarely. Id., 698-99. For the reasons articulated above, this court concludes that the defendant's case does not present one of those rare situations. The defendant's case falls outside the scope of Colton, and this court will not extend Colton beyond its clearly intended, exceedingly narrow parameters. Accordingly, and pursuant to the doctrine of collateral estoppel, the double jeopardy claim set forth in the defendant's motion to dismiss is denied.
B. Closing Argument
The defendant also seeks dismissal based on the alleged improper comments made by the prosecutor during closing argument. Unlike the identification issues discussed above, the defendant at no time alerted the trial court to this claimed impropriety. He did not object to the state's comments during, or immediately following, closing argument, nor did he raise the issue by way of a motion for a mistrial or in his motion for a new trial. See footnote 10 of this decision. Thus, due to the defendant's inaction the original trial court was deprived of the opportunity to determine the propriety of the state's conduct. Although the defendant sought to present this claim on appeal, the Supreme Court declined to address the issue in its decision. State v. Randolph, supra, 284 Conn. 331 n. 2.
The defendant's failure to raise this claim before the trial court proves fatal to his claim here. "[I]f a claim of prosecutorial misconduct is derived solely from the record, the defendant may waive the claim by his failure to raise it as a motion for a mistrial." State v. Colton, supra, 234 Conn. 699 n. 16. In challenging the propriety of the prosecutor's summation, the defendant has not alleged that any misconduct, or evidence thereof, occurred outside of the record. Thus, this court finds that the defendant has waived his double jeopardy claim concerning the state's allegedly improper remarks during closing argument.
II. Speedy Trial Claim
"The sixth amendment guarantee of a speedy trial is a fundamental right made applicable to the states through the fourteenth amendment to the United States constitution." State v. Turner, 252 Conn. 714, 742 (2000). The United States Supreme Court and the Supreme Court of this state have articulated a four-factor balancing test for determining whether a defendant has been deprived of his constitutional right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Turner, supra, 252 Conn. 714. "The four factors to be considered in such a determination are: [l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." (Internal quotation marks omitted.) State v. Turner, supra, 252 Conn. 742, quoting Barker v. Wingo, supra, 407 U.S. 530. The courts have also recognized that "[n]one of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant's right was violated." (Internal quotation marks omitted.) State v. Gaston, 86 Conn.App. 218, 226 (2004), cert. denied, 273 Conn. 901 (2005).
The first of the factors, the length of the delay, "is to some extent a triggering mechanism [because] [u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker v. Wingo, supra, 407 U.S. 530. "Our courts have not held that any particular length of delay is presumptively prejudicial, but have stated that an extensive delay warrants an inquiry into the other factors of Barker." State v. Ortiz, 252 Conn. 533, 569 (2000); see also e.g. State v. Turner, supra, 252 Conn. 742 (fifteen months); State v. Toste, 198 Conn. 573 (1986) (nineteen months); State v. Gaston, supra, 86 Conn.App. 227 (seven months); State v. Lacks, 58 Conn.App. 412, cert. denied. 254 Conn. 919 (2000) (over two years).
At argument on the motion to dismiss, the defendant asserted that his speedy trial claim concerns the approximate seven years since his arrest in 2002. The time between the defendant's arrest and the reversal of his conviction, however, should not be factored into the present speedy trial analysis. The defendant's original criminal trial began in August 2004 pursuant to a speedy trial motion. There has been no claim, either on appeal or before this court, that the defendant was deprived of his speedy trial right at that time. In addition, the defendant has not cited to any case law, and this court has found none, that suggests that the period between conviction and reversal on appeal should apply in a speedy trial analysis upon retrial. Based on the foregoing, this court will limit its analysis of delay incident to the defendant's retrial to the period of time following the reversal of the defendant's conviction. See Pelletier v. Warden, 32 Conn.App. 38, 54, cert. denied 227 Conn. 920 (1993).
The Supreme Court issued its decision in the defendant's appeal on November 13, 2007, and it was on or about that date that the Superior Court received notice that the case had been reversed and remanded for a new trial. The instant motion to dismiss was filed on April 14, 2009. There is no indication that any motions were filed, or court proceedings held, prior to the motion to dismiss. Thus, it is the approximate seventeen months between the reversal of the defendant's conviction and the filing of the motion to dismiss that is at issue here. A delay of seventeen months is substantial, and therefore necessitates an analysis of the remaining Barker factors.
As for the second factor, the defendant has neither offered any evidence, nor made any allegation, that the state has engaged in purposeful action that has caused the delay. "In examining the reason for the delay, [the court should] focus on whether the state was making a deliberate attempt to delay the trial in order to hamper the defense or whether there existed a valid reason that should serve to justify [the] delay." (Internal quotation marks omitted.) State v. Gaston, supra, 86 Conn.App. 227. Because there is no evidence or allegation in support of this claim, the court will not speculate as the possible reasons for the delay. Consequently, the court does not weigh this factor for or against the defendant's case.
The third Barker factor pertains to whether the defendant asserted his right to a speedy trial and, if so, at what point in the proceedings. "Whether and how a defendant asserts his right is closely related to the other factors . . . The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain." Barker v. Wingo, supra, 407 U.S. 531.
The instant motion to dismiss marks the very first time since the reversal of the defendant's original judgment of conviction that the defendant has made any assertion of his speedy trial right. Accordingly, the defendant's assertion of his right to a speedy trial via the current motion occurred approximately seventeen months after a new trial was ordered. This fact weighs strongly against the defendant's case. "The failure to assert the right, while not constituting a waiver, does make it difficult for the defendant to prove that he was denied a speedy trial. Barker v. Wingo, supra, [ 407 U.S.] 528, 531-32." (Internal quotation marks omitted.) State v. Lacks, supra, 58 Conn.App. 419 (defendant's assertion of speedy trial right two years after his arrest by motion to dismiss "militates against his [speedy trial] claim" [internal quotation marks omitted]).
The fourth and final factor that the court must consider is the extent to which the defendant has been prejudiced by the delay. The prejudice factor has been called "the linchpin of the speedy trial claim," and is to be assessed in light of the three interests which the speedy trial right was designed to protect: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." (Internal quotation marks omitted.) State v. Mooney, 218 Conn. 85, 121, cert. denied, 502 U.S. 919, 112 S.Ct 330, 116 L.Ed.2d 270 (1991). "Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker v. Wingo, supra, 407 U.S. 532.
As for the first of these interests — the oppressiveness of pretrial incarceration — the defendant here hardly can be heard to raise such a claim given that, throughout the seventeen-month period of delay at issue, he was serving a sentence on charges separate and distinct from those here. As for anxiety and concern, while it may well be true that the continued pendency of the instant case "concerns" the defendant, he makes no specific allegation in this regard, nor does he explain how any such anxiety and concern has affected, or will affect, his defense. Concerning the third interest, the defendant has made a general claim of prejudice based solely upon the passage of time. See State v. Morrill, 197 Conn. 507, 527-28 (1985) (claim relying on simple passage of time cannot, without more specific showing, be said to prejudice the defendant any more than it does the state). The defendant has failed to present, for example, any specific instances of witness memory loss that would be crucial to his case on retrial, and he has not alleged an inability to obtain favorable witnesses or exculpatory evidence because of the delay. When asked by the court at oral argument to identify the precise nature of his claim of prejudice, the defendant responded only that he "could not tell [the court] right now," and referred only to "an overall general concern that [the case] certainly couldn't have gotten any better." (Tr. Hearing on Mot. to Dismiss, p. 23.) Such "conjectural claims of prejudice from a delay are not persuasive." Id., 528. Accordingly, and based on the foregoing, this court concludes that the defendant has failed to demonstrate that he has suffered any prejudice from the seventeen-month delay at issue here.
In his motion to dismiss, the defendant noted that he was sentenced for a narcotics offense pursuant to a guilty plea on December 8, 2005. Court records indicate that the defendant received a four-year sentence in that case.
Our Supreme Court has concluded that a "generalized claim of anxiety suffered during incarceration . . . does not rise to the level of a constitutional violation of [a defendant's] right to a speedy trial." State v. Turner, supra, 252 Conn. 743.
In fact, because the speedy trial claim raised here concerns a delay in a retrial, it is far less likely that the death of a witness or the loss of a witness's memory will adversely affect the defendant's case. The testimony of all of the witnesses — including the defendant's alibi witnesses, who the defendant contends "came with their own baggage" and "were difficult at best" (Tr. Hearing on Mot. to Dismiss, p. 22) — was memorialized in the transcript of the original trial. That transcript likely could be utilized at the retrial if a witness should become unavailable.
Balancing the above four factors, this court concludes that, while a considerable amount of time has passed since the defendant's case was reversed by the Supreme Court and remanded for a new trial, the defendant has failed to adequately assert his speedy trial right and has failed to demonstrate that he suffered any prejudice from the delay. This court therefore concludes that the defendant has not been deprived of his constitutional right to a speedy trial.
In his motion to dismiss, the defendant also has referenced a statutory speedy trial right and has asked that this court "consider this motion as written notice and request for final disposition pursuant to [General Statutes] § 54-82c." (Def.'s Mot. to Dismiss, p. 3.) Under § 54-82c, sentenced prisoners can file a motion for speedy trial. This statute may apply to the defendant if he is currently serving a sentence on unrelated charges. See footnote 17 of this decision. Under § 54-82c, trial must be held within 120 days if such a motion is filed and the notice requirements under the statute have been met. See State v. Toste, supra, 198 Conn. 573 (strict compliance with statutory notice procedure in § 54-82c required); State v. Springer, 149 Conn. 244, 250 (1962) (statute requires delivery through a custodial official after his receipt of the request from the prisoner; the 120-day period begins to run from the delivery of the prisoner's request, with a certificate of the Warden, to the state's attorney and court). The court takes no position at this time as to whether the defendant is eligible for a speedy trial under § 54-82c, or whether the instant motion to dismiss is sufficient to trigger the rights available under that statute.
CONCLUSION
Based on the foregoing, the defendant's motion to dismiss is hereby denied.