Opinion
No. FST-152776
March 28, 2006
MEMORANDUM OF DECISION
I FACTS
The defendant, Marcellus Catchings, moves to dismiss the information against him in which he is charged with felony murder in violation of General Statutes § 53a-54c and murder in violation of General Statutes § 53a-54a. The defendant claims that the dismissal is warranted because the pre-arrest delay in this case of approximately sixteen years has resulted in a denial of his state and federal constitutional due process rights.
II LAW
"The role of due process protections with respect to pre-accusation delay has been characterized as a "limited" one . . . [The] 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-accusation 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, 554 A.2d 746 (1989), rev'd on other grounds, 213 Conn. 579, 569 A.2d 534 (1990). "[P]roof of prejudice is generally a necessary but not sufficient element of a due process claim . . . the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." (Internal quotation marks omitted.) State v. John, supra, 210 Conn. 686. The Connecticut Supreme Court has also noted that "[w]hile ordinarily the statute of limitations is the only protection afforded a defendant against the institution of stale criminal charges . . . it is not significant on [a] claim of error . . . [that] attacks delay in a charge of murder on which there is no statute of limitations." (Citation omitted.) State v. Littlejohn, 199 Conn. 631, 646, 508 A.2d 1376 (1986).
The defendant's evidence at the hearing on the motion to dismiss consisted of a single witness and a stipulation. In regards thereto, the court finds the following facts in deciding the present motion.
Donna Henry, a licensed private investigator, testified that she was retained by the defendant's attorney in November 2005. Investigator Henry was asked to interview three specific witnesses about what, if anything, they recalled concerning the murder allegedly committed by the defendant on March 8, 1989. Particularly, the defense was seeking to interview these witnesses for the purported purpose of exploring a possible alibi defense to the crime. Investigator Henry testified that she was requested to interview Tracy Bell, Joyce Bell and Harmon Thompson. In this regard, the parties stipulated for purposes of the motion that the defendant stated to the police that he was with those three people at the time the decedent was murdered.
Investigator Henry located Tracy Bell in Bridgeport. She personally met with Tracy Bell once and spoke with her once by telephone. Investigator Henry relayed that Tracy Bell told her that she could not recall anything specific about any crime occurring on the date at issue. Investigator Bell personally met with Tracy's mother, Joyce Bell, in Newtown. She believed that Joyce Bell was ill with sickle cell anemia and depressed. The interview lasted five to ten minutes, and the investigator testified that Joyce Bell was uncooperative and unable to recall any facts about the defendant being in her home or presence on the date at issue.
Investigator Henry further testified that Tracy Bell told her that the final potential witness, Harmon Thompson, had died. Her attempts to locate Harmon Thompson were unsuccessful, and she believed that he was, in fact, deceased.
Henry testified that she could not locate a death certificate for Thompson.
The defendant did not subpoena, or otherwise produce, the potential alibi witnesses for purposes of the hearing on the motion. The defendant did not produce any evidence that the witnesses were unavailable. In fact, the evidence is that at least Tracy Bell was available to testify at the motion hearing. The investigator did not videotape or otherwise record her interviews, and did not take any written statements. The defendant merely relied on the testimony of the investigator concerning her interviews in support of the showing required in order to prevail on the motion to dismiss.
The defendant claims that the foregoing evidence establishes that he has been sufficiently prejudiced as a result of the pre-arrest delay in this case. The defendant argues the claimed loss of memory by Tracy Bell and Joyce Bell, and the apparent death of Harmon Thompson, adversely affects any alibi defense that the defendant may assert at trial to the extent that those witnesses cannot now corroborate such a defense. The gist of the defendant's claim of prejudice is that the pre-arrest delay has effectively impaired his ability to present an alibi defense.
The court concludes that the defendant has failed to prove that he was actually and substantially prejudiced as a result of the pre-arrest delay in this case. The evidence produced by the defendant at the hearing on the motion consisted of vague and unsupported assertions that were conclusory in nature. His claim of prejudice is, at best, speculative. The paucity of evidence offered by the defendant falls far short of the substantial burden placed on the defendant in order to prevail on the motion.
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. In State v. L'Hereux, supra, 166 Conn. 322, the Supreme Court held that "[m]ere allegations of potential prejudice, of dimmed memory or of unavailable but unspecified witnesses are insufficient . . ." Similarly, in State v. Echols, 170 Conn. 11, 17, 364 A.2d 225 (1975), the Court found that the defendant was not prejudiced by the six-month delay in arrest as "there was no showing [by the defendant] that the alibi testimony would have been any more credible if there had not been a six-month delay in arrest, nor was there evidence that other corroborative evidence could have been produced. In State v. Hernandez, 21 Conn.App. 235, 242, 573 A.2d 5 (1990), rev'd on other grounds, 218 Conn. 458, 590 A.2d 112 (1991), the Appellate Court affirmed the trial court's decision to deny the defendant's motion to dismiss, holding that his assertions of prejudice were speculative at best. The defendant in Hernandez asserted that the one-year lapse between the crime and his arrest was prejudicial because it became impossible for him to secure alibi witnesses. Id. The Appellate Court noted, "[i]t is well established that vague assertions of dimmed memory and inability to locate possible witnesses are not enough to demonstrate actual prejudice." Id.
State v. L'Heureux, supra, 166 Conn. 322; See also State v. Echols, 170 Conn. 11, 17, 364 A.2d 225 (1975); State v. Hernandez, 21 Conn.App. 235, 242, 573 A.2d 5 (1990), rev'd on other grounds, 218 Conn. 458, 590 A.2d 112 (1991).
In the present case, the defendant failed to make any credible showing that the testimony of the two potential witnesses interviewed by the investigator, along with any evidence pertaining to the decedent, Harmon Thompson, would have aided the defendant in establishing a defense to the charges, particularly an alibi defense. Because the defense failed to produce the witnesses at the hearing, the court was unable to assess the credibility of the claimed memory loss. The testimony of the investigator merely raised vague assertions of loss of memory by Tracy Bell and Joyce Bell, and did not otherwise establish that even had such memories existed they would have bolstered any alibi defense raised by the defendant. There was no credible evidence establishing that Harmon Thompson died, or, if he did, on what date he died. Although the parties stipulated that the defendant stated to the police that he was with the three potential witnesses at the time the decedent was killed, the defense did not produce any foundational evidence in support of the stipulation. For example, there does not appear to be any evidence in this case establishing the decedent's time of death corroborating the defendant's statement that he was with these potential witnesses when the defendant was murdered, which evidence would be crucial to an alibi defense. The defendant made no showing that he could not corroborate any alibi defense by other witnesses or evidence, and, in fact, the sealed arrest warrant shows that other corroborative evidence might be produced.
Even if the defendant proved that he has been actually and substantially prejudiced as a result of the pre-arrest delay in this case, the defendant has failed to make the additional required showing that the delay was wholly unjustified.
It is well-established that the defendant must make a showing in the record that the pre-arrest delay was wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant. See United States v. Marion, supra, 404 U.S. 324; see also State v. Gay, 87 Conn.App. 806, 813, 867 A.2d 26, cert. denied, 273 Conn. 930, 873 A.2d 999 (2005); State v. Robinson, 213 Conn. 243, 249, 567 A.2d 1173 (1989), overruled on other grounds, State v. Colon, 257 Conn. 587, 778 A.2d 875 (2001). In State v. Gay, supra, 87 Conn.App. 813-14, the Appellate Court affirmed the trial court's judgment, noting, "[t]here is a complete absence of proof concerning the cause or effect of the preaccusation delay . . . To establish a constitutional claim that preaccusation delay violated his due process rights, the defendant needed to develop a record showing the reasons for the delay and that he suffered actual prejudice because of the delay. Only after the defendant has made some indication on the record that the delay was wholly unjustifiable and that he suffered actual prejudice because of the delay can [the court] review the defendant's claim to determine whether, in fact, a constitutional violation exists." Similarly, in State v. Robinson, supra, 213 Conn. 249, the Supreme Court found that the defendant was not denied his due process rights as a result of the pre-arrest delay of five and one-half years, as the defendant failed to show that the delay was wholly unjustifiable. The defendant in Robinson alleged that the pre-arrest delay was "wholly unjustifiable" because the police failed to investigate a witness's statement regarding the identification of the defendant. Id. The Court explained, "[e]ven were [the Court] to determine that the delay would not have occurred had the police followed up on [the witness's] statement, the record is devoid of evidence concerning the reasons for the police reaction (or inaction) to [the Witness's] information." Id.
In Gay, the defendant claimed that his due process rights were violated by the state's delay in charging him with a violation of his probation. The Appellate Court noted, "We assume, without deciding, that the standard for evaluating the constitutional infirmity of preaccusation delay in a violation of probation hearing is the same as that used in formal criminal proceedings." State v. Gay, supra, 87 Conn.App. 813.
In the present case, the defendant has failed to establish that the delay was wholly unjustifiable. The defendant did not assert that the delay was in any way related to the state seeking a tactical advantage over the defendant in pursuing the case, or ascribe any other reason for the delay. The defendant simply claims that the delay was unjustified because, in the defendant's view, the police and the state had enough information to obtain an arrest warrant for the defendant sooner.
The sealed arrest warrant in this case shows that the police investigated the present case for approximately one year after the murder. Thereafter, the case remained dormant until 1999, at which time the advances in technology permitted the state to seek additional scientific testing. In 2002 and 2005, the police acquired additional evidence, on its face significant in nature, against the defendant. An arrest warrant containing the cumulative information was signed by the court on July 12, 2005.
"[T]he Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment . . . Our task is more circumscribed. We are to determine only whether the actions complained of . . . violates those `fundamental concepts of justice which lie at the base of our civil and political institutions.'" State v. Morrill, 197 Conn. 507, 521, 498 A.2d 76 (1985).
The defendant has failed to establish that the reasons for the pre-arrest delay in this case were wholly unjustified. The defendant's claim that the prosecuting authorities should have exercised their discretion in seeking an arrest warrant against the defendant sooner based on the information available to them is unavailing. Such a bare assertion is insufficient for the court to determine that the lengthy pre-arrest delay in this case was unjustified. The arrest warrant evinces reasonable justification for the delay.
III CONCLUSION
In view of the foregoing, the defendant's motion to dismiss is denied.