Summary
noting that defendant, who was arrested in North Carolina as a fugitive from justice in Connecticut, waived extradition and was transported back to Connecticut by Waterbury police officers
Summary of this case from Prall v. Hartford ProsecutorsOpinion
No. UWY-CR06-348625
March 16, 2007
MEMORANDUM OF DECISION
On March 1, 2006, the defendant, Kylle Brewer, was arrested in Greensboro, North Carolina on a warrant charging him as a fugitive from justice from Connecticut. He waived extradition and was returned by two Waterbury police officers to Connecticut on March 3, 2006, where he was charged with the February 22, 2006 murder of Kendron Horton. On May 19, 2006, the State filed an information charging the defendant with murder, in violation of General Statutes § 53a-54a, punishable as a class A felony, and criminal possession of a firearm, in violation of General Statutes § 53a-217(a)(1), punishable as a class D felony. On July 24, 2006, pursuant to General Statutes § 54-46a(a), a hearing was held before Judge Peter Brown to determine whether there was probable cause to prosecute the defendant for the murder of Horton, a crime punishable by life imprisonment. Judge Brown found that probable cause had not been shown.
General Statutes § 54-46a provides: "(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause . . ."
Thereafter, the State obtained additional evidence against the defendant. On March 1, 2007, the State filed a substitute information charging the defendant with murder, criminal possession of a firearm and attempted sale of narcotics, in violation of §§ 53a-54a, 53a-217(a)(1) and 21a-278(b). The State then sought a second hearing to determine probable cause to prosecute the defendant for murder, in accordance with § 54-46a. The defendant filed an objection to the second probable cause hearing, arguing that a second hearing was untimely under § 54-46a and that the court lacked personal jurisdiction over the defendant. The court heard argument on the defendant's motion, but due to the press of time occasioned by the defendant's motion for a speedy trial, reserved its decision and proceeded to take evidence at a second probable cause hearing. This decision disposes of the issues raised by the defendant's objection and finds that there is probable cause to prosecute the defendant for the murder of Kendron Horton.
I
In his objection, the defendant first argues that "[t]his probable cause hearing is not being conducted within sixty days of the filing of the [i]nformation charging the defendant with murder as required by law."
General Statutes § 54-46a provides in relevant part: "(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause. (b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in Superior Court . . ."
There is no question that the first probable cause hearing before Judge Brown was held within sixty days of the filing of the first information against the defendant and, therefore, was timely. See, e.g., State v. Bookless, 82 Conn.App. 216, 843 A.2d 675, cert. denied, 269 Conn. 903, 852 A.2d 734 (2004) (sixty-day time limit commences with the filing of the information). The issue here is the timeliness of this second probable cause hearing. Section 54-46a(c) clearly contemplates a second hearing at which probable cause is found by the court. Section 54-46a(a) provides: "A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense." The statute, however, contains no time limit within which such a hearing must be held.
General Statutes § 1-2z states: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Section 54-46a is plain and unambiguous; it contains no time limit within which a subsequent hearing to determine probable cause must be held.
As Judge Damiani wrote in State v. Smith, Superior Court, judicial district of Fairfield, Docket No. CR 95108073 (July 22, 2004, Damiani, J.) [37 Conn. L. Rptr. 812]: "The legislature prescribes that there is `no limitation of time within which a person may be prosecuted for a capital felony, a class A felony or a violation of section 53a-54d or 53a-169.' General Statutes § 54-193. A person convicted of a capital felony can potentially face a sentence of death or life imprisonment, and a person convicted of a class A felony of murder faces a potential sentence of life imprisonment. See General Statutes § 53a-35a. Thus, these are the sorts of offenses for which a probable cause hearing is mandated. It defies logic to think that the legislature considered these crimes to be of such gravity that they would not institute a time limit on prosecution for them, but that they intended, nonetheless, to foreclose the state from filing a substitute information and having another probable cause hearing if the state developed new evidence more than sixty days after the filing of the first information charging the defendant with the crime."
The existence of the sixty-day time limit for the initial probable cause hearing and the nonexistence of a sixty-day time limit for a subsequent probable cause hearing is telling. "It is a principle of statutory construction that a court must construe a statute as written . . . Courts may not by construction supply omissions . . . or add exceptions merely because it appears that good reasons exist for adding them . . . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say . . . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature . . . Moreover, [i]t is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Internal quotation marks omitted.) Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 216, 901 A.2d 673 (2006).
The legislature has prescribed that a hearing to determine probable cause must be conducted within sixty days of the filing of the complaint or information charging a defendant with a crime punishable by death or life imprisonment. If probable cause is not shown at that time, the State may at any future time develop additional evidence and submit to a second probable cause hearing. The court holds that this second probable cause hearing is not untimely.
II
The defendant next argues that the court does not have jurisdiction over the person of the defendant and therefore is without authority to conduct a second probable cause hearing. The court disagrees.
Essentially, the defendant argues that in the absence of a new arrest warrant and a second arrest for the charge of murder in the substitute information, the court lacks jurisdiction over the defendant's person for that charge. Thus, the defendant contends that the State must enter a nolle prosequi on the murder charge in the substitute information and that the court must dismiss the charge and issue a second arrest warrant. The State disagrees and argues that the court already has jurisdiction over the defendant for acts arising out of this incident by virtue of the preexisting information charging the defendant not only with murder, for which probable cause was not found, but also with criminal possession of a firearm, and that it was entitled to recommence a prosecution against the defendant by filing a substitute information, which alleged murder, pursuant to Practice Book § 36-17. The court agrees with the State.
Notably, the substitute information alleges that all of the crimes took place "on or about February 22, 2006 at approximately 4:30 P.M., at or near 168 Wood Street, Waterbury . . ."
Article first, § 8, of the Connecticut constitution, as amended, provides in part that "[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law." As observed in Part I, supra, subparagraph (a) of § 54-46a prohibits a defendant from being "put to plea" for an offense punishable by death or life in imprisonment absent a finding of probable cause by a court after a preliminary hearing. Subparagraph (c) provides that where there is such a finding, the court "shall approve the continuance of the . . . prosecution for that offense" but that "a determination . . . that there is not probable cause . . . shall not operate to prevent a subsequent prosecution of such accused person for the same offense."
The defendant is correct in arguing that when Judge Brown found that there was no probable cause to charge the defendant with murder at the first probable cause hearing, the court lost jurisdiction over the defendant for that charge at the expiration of the stay of execution of the judgment. Our cases clearly establish that "where the evidence offered at a probable cause hearing is insufficient to establish probable cause, the trial court lacks jurisdiction over the defendant's person." State v. Marra, 222 Conn. 506, 513, 610 A.2d 1113 (1992). Thus, the court lost jurisdiction for that charge regardless of whether the prosecutor thereafter entered a nolle prosequi on that charge, or the court, on a motion of the defendant or otherwise; see Practice Book §§ 39-29 to 39-32; dismissed it.
However, as the court stated in Reed v. Reincke, 155 Conn. 591, 598, 236 A.2d 909 (1967), speaking explicitly about personal jurisdiction: "It is the proper presentment of the information — not the arrest — which is essential to initiate a criminal proceeding . . . Arrest and detention are primarily for security purposes and not for the purpose of conferring jurisdiction." (Citation omitted.) Accord State v. Carey, 222 Conn. 299, 306, 610 A.2d 1147 (1992); State v. Robinson, 32 Conn.App. 448, 453, 630 A.2d 87 (1993), aff'd, 230 Conn. 591, 646 A.2d 118 (1994).
Although not dispositive because the issue was not raised therein, it is noteworth that in State v. Boyd, 221 Conn. 685, 688, 688 n. 3, 607 A.2d 376, 506 U.S. 9233, 113 S.Ct. 344, 121 L.Ed.2d 259 (1992), it appears that the State proceeded to a second probable cause hearing by filing an amended information. There is no suggestion in the case that there was a second arrest.
The defendant does not contend that the court lacks personal jurisdiction in connection with the non-murder charges. Because the court had jurisdiction over the person of the defendant for these charges, the State was entitled to file a substitute information, or amend the information, pursuant to Practice Book § 36-17, to add the charge of murder. When the State did so, the court's jurisdiction over the defendant's person extended to the prosecution of the murder charge. State v. Heinz, 193 Conn. 612, 629-30, 480 A.2d 452 (1984).
Practice Book § 36-17 provides: "If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in its discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced."
Accordingly, the motion to dismiss is denied.
III
The court turns to the issue of whether the State has sustained its burden of proving that there is probable cause to believe that the defendant committed the murder of Kendron Horton. General Statutes § 54-46a(a).
"In making a finding of probable cause, the trial court must determine whether the evidence offered would warrant a person of reasonable caution to believe that the accused had committed the charged offense . . . The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear [t]hat there is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances . . ." (Citation omitted; internal quotation marks omitted.) State v. Marra, supra, 222 Conn. 513.
From the evidence presented and the inferences therefrom, the court finds the following facts proven by a preponderance. On February 22, 2006, around mid-afternoon, Alan Wright, an occasional drug user who frequented Wood Street in Waterbury, was walking to a pawn shop to pawn a lap-top computer. Wright was a parolee. At some point during his walk, he encountered Horton, who was driving an automobile. Horton gave Wright a ride to the pawn shop where Wright was unable to pawn his computer. Horton then gave Wright a ride to Wood Street. On the way to Wood Street, Horton remarked that he wanted to look for the defendant's "shit," meaning his inventory of illegal drugs. Wright was aware that the defendant had hid illegal drugs in the area behind an abandoned house at 168 Wood Street. When they arrived at Wood Street, Horton and Wright parted ways. Wright remained on the street talking with some acquaintances. He last saw Horton walking towards an area behind the abandoned house at 168 Wood Street, around mid-afternoon.
At about this time, Wright also observed the defendant selling narcotics on Wood Street. Wright noticed that the defendant would speak to persons on the street, then walk between the house located at 168 Wood Street and the adjacent house, and go into an area behind the houses. This was the same area toward which Wright had seen Horton walking. Wright attempted to alert Horton of the defendant's presence by way of a two-way Nextel communications device. While the defendant was in that area, Wright heard four gunshots fired. He subsequently saw the defendant walking toward and getting into a red car, which then rapidly accelerated. That vehicle was driven by someone other than the defendant.
Mary Loyola was living on the second floor of a three-family, three-story house, at 165 Wood Street in Waterbury. On February 22, 2006, between 4:00 P.M. and 4:30 P.M., she heard two gunshots fired from the direction of the front of her house. She went to the front of her apartment and looked out of a window that faced Wood Street. She saw the defendant running down the side driveway of 168 Wood Street, which was across the street from her house. Loyola saw the defendant with one hand in the pocket of his "hoodie" sweatshirt and another hand holding a t-shirt pulled over his head, but not over his face. The defendant was jogging towards a red car. The defendant got into the red car that was being operated by an unknown person. According to Loyola, the car began to drive away before the defendant shut the passenger door and drove off "pretty fast." At no time did she see the defendant take his hand out of the pocket of his hoodie sweatshirt. Another car in the area, which was white, departed seconds later.
Loyola then called the police. Police were dispatched to the area at 6:51 P.M., with Officers Shea, Bromwell and Sharpe responding. Officer Shea was told by five or six males on Wood Street that "he's upstairs on the second floor." The building the males referred to was the vacant house at 168 Wood Street. The officers gained access though an opening in the back of the house and proceeded up a stairwell to the second floor. There they found a dead male later identified as Horton. Horton had been shot in several parts of his body, including his head.
During the day of February 22, 2006, the defendant and his occasional girlfriend, Brenda Quinnones, an employee at a branch of Bank of America, spoke by phone and made arrangements to meet after she got off work at 5:00 P.M. When Quinnones walked out of work at about 5:05 P.M., she saw the defendant seated in the passenger seat of his car in the parking lot and an unknown black male in the driver's seat. The defendant quickly got out of his car and into the passenger seat of Quinnones' car. He told her that he had to go to the mall to get new pants because his cousin had been borrowing his pants.
Quinnones drove to Westfarms Mall. The defendant went into the mall alone and remained there for about forty-five minutes. Quinnones remained in the car. When the defendant emerged, he was wearing different pants and also had his ear pierced. He was carrying two bags: a Filene's bag and a Claire's bag. He got into Quinnones' car with the Claire's bag but left the Filene's bag in the parking lot. The two drove to a nearby "Olive Garden" restaurant, which was too busy, and then to a "Chili's" restaurant located in Southington. There, the defendant drank liquor and ate a meal. Quinnones found him to be less talkative than usual and teary-eyed. Uncharacteristically, he spoke to someone on a cell phone during the meal. Quinnones and the defendant later returned to Waterbury, specifically to the Brass Mill Shopping Center where they parted.
Later that day, around 10:00 P.M., the police picked up Quinnones and transported her to the police station where she was questioned. The police returned her home, but picked her up again around 2:00 A.M. and took her to Westfarms Mall, where she saw the Filene's bag in the parking lot. Near the bag were the pants the defendant had been wearing when he walked into Westfarms Mall the previous day. The pants, which were seized by the police, appeared to be stained with blood. Testing revealed that the blood belonged to Horton and that it had traveled at a low level velocity before coming into contact with the pants.
As observed supra, on March 1, 2006, the defendant was found in Greensboro, North Carolina, where he has relatives.
Based on the evidence and the foregoing subordinate findings, the court finds, pursuant to § 54-46a, that there is probable cause to believe that the defendant murdered Horton. Accordingly, the court approves the continuance of the defendant's prosecution for the offense of murder.