Opinion
No. CR07-0239928-S
September 9, 2010
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
The defendant moves the court to dismiss all charges against him as he has been denied the right to a Speedy Trial. The motion was argued on August 9, 2010. By way of background, the defendant, Marlon Adlam, first appeared in court on April 25, 2007. He was charged with Possession of Hallucinogenic Substance in violation of C.G.S. § 21a-279(b) and Sale of Controlled Substance in violation of C.G.S. § 21a-277(b). The defendant posted a $25,000 non-surety bond and was released from custody.
The defendant did not move for a speedy trial until April 16, 2010. The defendant argues that from November 27, 2007, when the defendant was placed on the trial list, until December 10, 2008, when the defendant was taken into custody by Immigration and Customs Enforcement (ICE), there was no excludable time and therefore the motion to dismiss should be granted. The state argues that since the motion for speedy trial the defendant has not stood trial due to the defendant's federal incarceration and the logistics of obtaining the defendant's presence for trial.
On April 20, 2009, the state was made aware that the defendant was presently involved in deportation proceedings with ICE. The case remained on the trial list. At some time between November 9, 2009 and March 1, 2010, the defendant retained new counsel.
"In accordance with the mandates of § 54-82m, Practice Book §§ 43-39, 43-40 and 43-41 prescribe the manner in which to identify excusable periods of delay. Practice Book § 43-39(c) sets forth the general rule, and provides in relevant part: `Except as otherwise provided herein and in Section 43-40, the trial of a defendant charged with a criminal offense . . . shall commence within twelve months from the filing of the information or from the date of the arrest, whichever is later.' Practice Book § 43-40 then sets forth ten circumstances constituting those `periods of time [that] shall be excluded in computing the [twelve months] within which the trial of a defendant . . . must commence pursuant to Section 43-39 . . .' The first nine delineate specific circumstances; the tenth provides more generally for `[o]ther periods of delay occasioned by exceptional circumstances.'" State v. McCahill, 265 Conn. 437, 447, 828 A.2d 1235 (2003).
In the present case, there was a significant delay, thirty-six months from the defendant's first appearance, in moving for a speedy trial. During that time frame the defendant was incarcerated by ICE, on December 10, 2008, and remains in federal custody. The defendant claims that the twelve-month period for which the defendant was guaranteed a trial elapsed prior to his federal incarceration. Nevertheless, the defendant waited another sixteen months, until April 16, 2010, to file the motion for a speedy trial. The state argues that the defendant's delay in bringing the motion is significant, as more than three years has passed since the defendant's first appearance, and that any delay in bringing the defendant to trial is due to the defendant's numerous requests for continuances, his supervised pretrial discussions, the hiring of a new attorney, and the defendant's federal incarceration due to his immigration status.
"The Supreme Court of the United States and the Connecticut Supreme Court have identified four factors that form the matrix of the defendant's constitutional right to speedy adjudication: [l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant . . . A balancing test is to be applied on a case by case basis. None 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. Lacks, 58 Conn.App. 412, 417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000). "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." State v. Martin, 56 Conn.App. 98, 103, 741 A.2d 337 (1999), cert. denied, 252 Conn. 926, 746 A.2d 790 (2000).
The United States Supreme Court, in Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), first articulated the balancing test and in addressing the third factor stated, "[w]hether and how a defendant asserts his right is closely related to the other factors we have mentioned. 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. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial."
The defendant's assertion of his speedy trial right, the third factor, is of particular importance in evaluating the current motion. Connecticut courts have addressed the effect of a delay in filing a motion for speedy trial, albeit under different circumstances. For instance, in State v. Johnson, 190 Conn. 541, 461 A.2d 981 (1983), there was a significant delay in the defendant's assertion of his right to a speedy trial. The court stated that "the sixteen month delay involved herein is not unreasonable per se [however] . . . it is sufficiently long to require an examination of the other factors that go into the balance." (Citations omitted.) Id., 545. In State v. Lacks, supra, 58 Conn.App. 419, the court was also faced with a significant delay in the defendant's filing of the motion to dismiss on speedy trial grounds. The court stated that the delay in the filing of the motion to dismiss "militates against the defendant's claim. 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." Id.
In State v. Davis, 192 Conn. 739, 474 A.2d 776 (1984), the court held that a twenty-six-month delay in the defendant's trial did not in itself violate the defendant's right to a speedy trial. In considering the defendant's motion the court stated that "[t]he defendant's assertion of his right is episodic. For sixteen months he did not assert it at all. He started to assert it orally and vigorously [after 16 months] . . ." Id., 743. In denying the defendant's motion the court stated that "[a]fter scraping off the marginal evidential barnacles all that remains is a twenty-six month pretrial delay during most of which the defendant failed to assert his right to a speedy trial. Unless we are to adopt a per se rule, a delay of that duration is not enough in itself to warrant dismissal of a prosecution for failure to give the defendant a speedy trial." Id., 746. Similarly, in State v. Randolph, Superior Court, judicial district of Hartford, Docket No. CR 02 0558666 (July 16, 2009, Gold J.), there was a seventeen month delay between the defendant's notice that his original case was reversed and the defendant's re-trial. The court conducted the balancing test, under Barker, and determined that the defendant's delay weighed heavily against the defendant. Id. This determination was significant in the court holding that the defendant was not deprived of his constitutional right to a speedy trial. Id.
In the present case, the defendant waited about thirty-six months, from his initial appearance, to bring a motion for a speedy trial. Most of this time was after the defendant became federally incarcerated. Despite the significant delay, thirty-six months is not a per se violation of the defendant's constitutional right to a speedy trial. See State v. Toste, 198 Conn. 573, 504 A.2d 1036 (1986) (nineteen months); State v. Davis, supra, 192 Conn. 739 (sixteen-month delay); State v. Lacks, supra, 58 Conn.App. 412 (over two years). The reason for the delay in commencing trial has largely been due to the defendant's federal incarceration but also because of prior events, including continuances, hiring a new attorney and pre-trial conferences.
As to the balancing test, the third factor weighs heavily against the defendant because of the defendant's significant delay in filing the motion for a speedy trial. Instead of filing the motion prior to federal incarceration, when the defendant claims the twelve months of non-excludable time had accrued, the defendant waited another sixteen months to file the motion. The failure to assert his right to a speedy trial makes it difficult to prove the defendant was in any way prejudiced. There have been no allegations that any witnesses or other crucial evidence has been lost as a result of the delay. Also, as the state points out, the delay has allowed the defendant time to obtain new counsel, take part in pre-trial conferences, examine police reports, and discuss a prior state plea offer. All of these seemingly benefit the defendant in this case.
Therefore, although there is not a set time limitation in and of itself for asserting a motion for a speedy trial, the defendant's significant delay in bringing the motion, although much of it admittedly excludable, weighs heavily against the defendant and, ultimately, after balancing the Barker factors the defendant's right to a speedy trial has not been violated.
II. Thirty-Day Speedy Trial Period After the Motion Dismiss
As to the issue of whether the failure to bring the defendant to trial after the speedy trial motion warrants dismissal, the state argues that the motion should be denied because the thirty-day speedy trial period is tolled while the defendant is incarcerated in another jurisdiction. The state argues the delay constitutes "good cause" because while the defendant is incarcerated in another jurisdiction, the state has exercised reasonable diligence in obtaining the defendant's presence at trial.
"Practice Book § 43-41 specifically addresses the thirty day period after the filing of the speedy trial motion, providing in relevant part: `If the defendant is not brought to trial within the applicable time limit set forth in Sections 43-39 and 43-40, and, absent good cause shown, a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice, on motion of the defendant filed after the expiration of such thirty day period. For the purpose of this section, good cause consists of any one of the reasons for delay set forth in Section 43-40.'" (Emphasis in original.) State v. McCahill, 265 Conn. 437, 447, 828 A.2d 1235 (2003).
Practice Book § 43-41 expressly incorporates the "good cause" exceptions, excluding certain periods of time in computing the thirty days after filing the motion for speedy trial. In particular Practice Book § 43-40(9) excludes time "[w]ith respect to a defendant incarcerated in another jurisdiction, the period of time until the defendant's presence for trial has been obtained, provided the prosecuting authority has exercised reasonable diligence (A) in seeking to obtain the defendant's presence for trial upon receipt of a demand from the defendant for trial . . ." The Supreme Court has held that "neither the statute nor the rules of practice precludes the exercise of' the court's power to suspend the running of the thirty day period for a reasonable time." State v. Brown, 242 Conn. 389, 405, 699 A.2d 943 (1997).
In the present case, the defendant remains federally incarcerated. The state has outlined their efforts in obtaining the defendant's presence for trial, including making several phone calls to various offices of ICE, having extensive conversations with the Hampden Police Department and ATF officials, engaging in considerable coordination with G.A. 7 marshals and officials at Franklin County, where the defendant is incarcerated, and requesting an increase in the defendant's bond, which would facilitate the defendant's transportation to court. The state has also described how the defendant's presence was secured on June 14, 2010, albeit in error. Based on these efforts, from the date the speedy trial motion was filed until the motion to dismiss, the state has exercised reasonable diligence in obtaining the defendant's presence for trial.
For the aforementioned reasons, the defendant's motion to dismiss is denied.