Opinion
No. MV 08-0046495 S
August 28, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
NATURE OF THE PROCEEDINGS
The defendant, Maribel Saez, moves to dismiss the information against her in which she is charged with, inter alia, Assault second degree with a motor vehicle, in violation of C.G.S. 53a-60d, Operating under the influence in violation of C.G.S. 14-227a, and Evading responsibility, in violation of C.G.S. 14-224b. The defendant claims that the prosecution should not proceed because the statute of limitations was exceeded when the arrest warrant was not served within a reasonable time after it issued, and because said pre-arrest delay resulted in a denial of her state and federal constitutional due process rights.
The defendant's Motion to Dismiss was filed May 15, 2009. This court conducted an evidentiary hearing on July 13, 2009. The defendant and the State were afforded the opportunity to file briefs following the hearing.
In reaching its conclusions, the court has fairly and impartially considered all of the evidence presented, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence, and measured the probative force of conflicting evidence, reviewed all exhibits and relevant case law, and has drawn such inferences from the evidence or facts established by the evidence it deems reasonable and logical.
FINDINGS OF FACT
Based on the evidence heard in this matter, the court finds the following facts:
The defendant was operating a motor vehicle on November 29, 2006 in the City of New Haven. On said date, the defendant was involved in a motor vehicle accident in which the vehicle she was operating collided with a city bus. As the result of said accident, the defendant was hospitalized for approximately one month. She was released from the hospital on December 6, 2006, at which time she returned to her residence located at 396 Poplar Street in New Haven. The defendant resided there prior to the accident, and resided at said location at all relevant times following the accident as well. The defendant continues to reside at 396 Poplar Street. The defendant's mother, Marisol Sanabria, has also resided with the defendant at said location both prior to, and at all times following, the accident. The defendant produced exhibits including state and federal tax information, credit card receipts, employment records and court documents verifying her address as 396 Poplar Street at all times relevant to this proceeding.
Detective Wayne Bullock of the New Haven Police Department was assigned to investigate the defendant's motor vehicle accident. As a result of his investigation, Detective Bullock prepared a warrant for the defendant's arrest. An arrest warrant for the defendant was signed on December 14, 2006 by the Honorable Peter L. Brown. Once the warrant was issued, Detective Bullock made but one effort to serve the arrest warrant on the defendant. Warrant service was attempted by Detective Bullock traveling to 396 Poplar Street and simply speaking with a female who answered the door. The court observes, however, that there was no evidence presented as to whether Detective Bullock was the sole officer charged with executing the arrest warrant.
The arrest warrant was eventually served on the defendant on March 27, 2008, a period of approximately fifteen months after it was issued. No other evidence regarding efforts to arrest the defendant was presented. No evidence as to the actual circumstances regarding the defendant's eventual arrest was presented. However, the official court file contains the "Uniform Arrest Report." The "Uniform Arrest Report" indicates that the defendant's arrest occurred on March 27, 2008 at 3:20 a.m. at the New Haven Police Department. It further reflects that she "turned herself in." A reasonable and logical inference from this circumstance is that the defendant had been apprised of the fact that the New Haven Police Department possessed a warrant for her arrest.
There was no evidence presented regarding any documented contacts between the defendant, and the police, during the fifteen months between the issuance of the warrant and the defendant's arrest which failed to result in her arrest. Finally, no evidence was presented regarding the impact, if any, the fifteen-month delay had on the defendant's ability to present a defense.
LAW
A Motion to Dismiss based on a statute of limitations is a pretrial motion. P.B. §§ 41-3; 41-8. Generally a pretrial motion is to be heard and decided prior to trial by the judicial authority assigned for the trial. P.B. § 41-7. The statute of limitations is not jurisdictional in nature, but instead is a statutory defense which can be waived by the defendant if not raised. State v. Littlejohn, 199 Conn. 631, 640, 508 A.2d 1376 (1986). General Statute § 54-193(b) provides in pertinent part as follows: "[n]o person may be prosecuted for any offense . . . for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed." Construction of this statute has led to the legal conclusion that the start of the prosecution has been defined as the signing of the arrest warrant by a proper judicial authority, and the turning over of the properly issued warrant to a proper officer for service. These acts will toll the statute of limitation. State v. Crawford, 202 Conn. 443, 450, 521 A.2d 1034 (1987). There is no dispute that the warrant was issued within the five-year limitation period set out in § 54-193. The claim made by the defendant in this case arises under the second test set out in State v. Crawford, supra, 202 Conn. 450. Where the prosecution was initiated timely, the warrant must still be executed without unreasonable delay to preserve the primary purpose of the statute of limitations. Id., 450-451.
Insofar as the defendant's due process claim is concerned, the defendant must show more than mere delay. "The role of due process protections with respect to pre-accusation delay has been characterized as a "limited" one . . . [T]he court need only determine whether the action complained of . . . violates those fundamental conceptions of justice which lie at the base of our civil and political institutions." (Citations omitted; internal quotation marks omitted.) State v. John, 210 Conn. 652, 685, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989). "[W]here the delay in arresting a defendant (or in otherwise apprising him of the charges against him) continues long after all the evidence has been assembled, and becomes a product of mere convenience to the state, a question of an unreasonable seizure or lack of a fair trial may arise." (Emphasis in original; internal quotation marks omitted.) State v. L'Heureux, 166 Conn. 312, 318, 348 A.2d 578 (1974).
In order to establish a due process violation because of pre-arrest delay, the defendant must show both that (1) actual substantial prejudice resulted from the delay and (2) that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); see also State v. Hall, 17 Conn.App. 502, 507, rev'd on other grounds, 213 Conn. 579 (1990); State v. Hart, 23 Conn.App. 746 (1991), rev'd on other grounds, 221 Conn. 595 (1992). "The due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 53 L.Ed.2d 752 (1977); State v. John, supra, 210 Conn. 686.
"In considering whether an excessive delay requires the dismissal of an indictment, a court must first determine whether the defendant suffered actual prejudice because of the delay. United States v. Carruth, 699 F.2d 1017, 1019 (9th Cir. 1983), cert. denied, 464 U.S. 1038, 104 S.Ct. 698, 79 L.Ed.2d 164 (1984)." (Emphasis added.) United States v. Horowitz, 756 F.2d 1400, 1405, (9th Cir. 1985), cert. denied, 474 U.S. 822, 106 S.Ct. 74, 88 L.Ed.2d 106 (1985). Page 508.
I. STATUTE OF LIMITATIONS
This court's analysis of the defendant's statute of limitations claim begins with State v. Crawford, 202 Conn. 443 (1987). The court in Crawford addressed the issue of whether a violation of the applicable statute of limitations could occur as the result of the delay in the execution of an arrest warrant for more than two years. The court held as follows:
When an arrest warrant has been issued, and the prosecutorial official has promptly delivered it to a proper officer for service, he has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him. When the prosecutorial authority has done everything possible within the period of limitation to evidence and effectuate an intent to prosecute, the statute of limitations is tolled. An accused should not be rewarded, absent evidence of a lack of due diligence on the part of the officer charged with executing the warrant, for managing to avoid apprehension to a point in time beyond the period of limitation . . .
We recognize, however, that some limit as to when an arrest warrant must be executed after its issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions, a primary purpose of statutes of limitation. (Internal citations omitted.) Therefore, we adopt, what we think is the sensible approach of the model penal code, and conclude that, in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations of 54-193(b), must be executed without unreasonable delay. We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations. Crawford, supra 450-51.
The arrest warrant in Crawford was not executed until more than two years after it was issued. As is the case in the instant matter, the court in Crawford noted that . . ." the record indicates no reason for the delay in the defendant's arrest." (Emphasis added.) Id. at 445. For purposes of the statute of limitations claim now before this court, the question then is was the arrest warrant served in "a reasonable time." The defendant does not claim that the warrant was executed beyond the applicable five-year statute of limitations relevant to the offense charged in the information. Crawford observed that a primary purpose of the statute of limitations was "to prevent the disadvantages to the accused attending state prosecutions." Crawford, supra at 450; see also State v. Ali, 233 Conn. 403, 415 (1986). The court concludes that this language in Crawford suggests that a relevant consideration in evaluating a statute of limitations pre-arrest delay claim is whether the evidence presented in connection with the claim also establishes that the defendant suffered any disadvantage. Thus, the court finds under Crawford's statute of limitation analysis, this court may consider not only whether there has been an unreasonable delay, but also whether the defendant has suffered any disadvantage. The court finds such analysis to be consistent with what Crawford defined as the primary purpose of the statute of limitations.
After a review of the law, and a careful consideration of the defendant's claim, the court does not find that the fifteen-month delay, per se, was unreasonable, or demonstrated such a lack of due diligence as to require dismissal of the information. There was no evidence of police contact with the defendant that failed to result in her arrest. The defendant's argument in essence is tantamount to a claim that a fifteen-month delay with only a single documented effort to execute the warrant, is per se an unreasonable delay. Crawford and its progeny suggest no such "per se" rule, nor does the court find any evidentiary support in the record for the defendant to claim she suffered any disadvantage. As noted previously, Crawford itself involved a two-year delay, which was not found to be unreasonable, despite any evidence in the record in Crawford as to the reason for the delay. The official court file reflects that the defendant surrendered herself pursuant to the arrest warrant at the New Haven Police Department. In order to surrender, (at 3:20 a.m.) the defendant had to be made aware of the existence of the warrant. Since the unexplained delay in Crawford itself was more than two years, and did not warrant a dismissal of the information, this court cannot conclude as a matter of law that a delay of fifteen months is such an unreasonable delay so as to warrant a dismissal.
Although the state appears to concede in its brief that the delay was unreasonable, the court is not bound by same. State v. Putnoki, 200 Conn. 208, 219 n. 6 (1986) State v. Avery, 199 Conn. 377, 379 n. 2 (1986).
Further, the court concludes that under Crawford, even if a finding of unreasonable delay due to a lack of due diligence were to be made, the inquiry does not end. The evidence presented to this court did not demonstrate that the defendant has suffered any disadvantage. No evidence as presented by the defendant with respect to this prong under Crawford, nor, as will be more fully discussed below, with regard to her due process claim.
In addition, the court observes that although the court has made a preliminary finding that the execution of the warrant was reasonable, the final determination of reasonableness is left to the ultimate trier of fact. As noted in State v. Coleman, 202 Conn. 86, 90 (1987), and State v. Ali, 233 Conn. 403, 436 (1995), the statute of limitations is an affirmative defense. Thus, if the defendant at trial put forward evidence to suggest that the state reasonably could have executed the warrant sooner, "the issue of whether the state executed the warrant within a reasonable period of time [is] properly a question of fact for the jury." State v. Ali, supra 416.
II. DUE PROCESS CLAIM
"In order to establish a due process violation because of pre-arrest delay, the defendant must show both that actual substantial prejudice resulted from the delay, and that the delay was wholly unjustified, as where the state seeks to gain a tactical advantage over the defendant." State v. Littlejohn, 199 Conn. 631, 646 (1986).
This court concludes that the defendant has failed to prove that she was actually and substantially prejudiced as the result of the pre-arrest delay in this case. It is well established that a defendant must provide a specific showing of prejudice as a result of the delay, and mere allegations of prejudice are insufficient. State v. L'Heureux, 166 Conn. 312 (1974); see also State v. Echols, 170 Conn. 11, 17 (1975); State v. Hernandez, 31 Conn.App. 235, 242 (1990), rev'd on other grounds, 218 Conn. 458 (1991). "Mere assertions that the testimony of a missing witness might have been useful . . . is not `proof of actual prejudice' required by United States v. Marion." United States v. Hurowitz, 756 F.2d 1466, 1465 (8th Cir.) cert. denied, 474 U.S. 822 (1985).
There is no evidence in the record to support a claim that the state sought to gain a tactical advantage over the defendant by virtue of the pre-arrest delay. Further, there is a complete lack of evidence as to any actual substantial prejudice suffered by the defendant.
The court has considered, and rejects, the defendant's claims pursuant to State v. Soldi, 92 Conn.App. 849 (2005); cert. denied 277 Conn. 913 (2006).
Soldi concerned a violation of probation. The arrest warrant alleging a violation of probation was executed on the defendant more than five years after it was issued. The trial court ruled on the defendant's motion to dismiss only with regard to the statute of limitations claim, and did not address her due process claim.
The court in Soldi focused on the defendant's unaddressed due process claim. The issue in Soldi was whether the burden to prove an unreasonable delay in the execution of the arrest warrant for violation of probation shifted to the state once evidence was produced that the defendant did not take evasive action. In the context of a due process claim, this court concludes that there is nothing in the language of Soldi that suggests that the issue of whether the burden of proof properly resides with the state or defendant in such a case eliminates the requirement that substantial prejudice be demonstrated. The court does not interpret Soldi to hold that, with regard to a due process claim, the state's failure to meet its burden of proof to demonstrate that a delay in executing an arrest warrant was not unreasonable relieves the defendant from nevertheless establishing substantial prejudice. A close reading of Soldi reveals that the issue of prejudice to the defendant was neither distinctly raised or addressed. Most of the cases cited within Soldi also, like Soldi, involve either violations of probation, or violations of parole.
Therefore, in view of the foregoing, the defendant's motion to dismiss is denied.