Opinion
FSTCR190148554T
01-14-2020
State of Connecticut v. Fotis Dulos
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Blawie, John F., J.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO DISMISS FIRST ARREST WARRANT, CHARGING TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE AND HINDERING PROSECUTION INTRODUCTION
Blawie, J.
On January 7, 2020, the defendant, Fotis Dulos, was arrested pursuant to a warrant charging him with the murder, felony murder, and kidnapping of his estranged wife and mother of his five children, Jennifer Farber Dulos, on or about May 24, 2019. Those pending charges represent the most recent (and most serious) set of allegations against the defendant in connection with the state’s months-long investigation into the disappearance of Jennifer Farber Dulos. The defendant was initially arrested on June 3, 2019, pursuant to a two-count arrest warrant (the Warrant) charging him with tampering with or fabricating physical evidence, in violation of General Statutes § 53a-155, and hindering prosecution in the first degree, in violation of General Statutes § 53a-165aa. On September 4, 2019, the defendant was arrested by way of a second warrant, which charges an additional count of tampering with physical evidence.
See General Statutes § 53a-54a.
See General Statutes § 53a-54c.
See General Statutes § 53a-92.
On September 4, 2019, as the investigation into this missing person case progressed, the defendant was arrested a second time in connection with his wife’s disappearance. The state charged the defendant with an additional count of tampering with physical evidence in a second warrant. Because the motion to dismiss is limited to the defendant’s first arrest, those allegations in the second warrant are not the subject of further discussion or analysis herein.
Section 53a-155(a) provides: "A person is guilty of tampering with or fabricating physical evidence if, believing that a criminal investigation conducted by a law enforcement agency or an official proceeding is pending, or about to be instituted, such person: (1) Alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such criminal investigation or official proceeding; or (2) makes, presents or uses any record, document or thing knowing it to be false and with purpose to mislead a public servant who is or may be engaged in such criminal investigation or official proceeding."
Section 53a-165aa(a) provides: "A person is guilty of hindering prosecution in the first degree when such person renders criminal assistance to another person who has committed a class A or B felony or an unclassified felony for which the maximum penalty is imprisonment for more than ten years and such other person committed such felony with intent to intimidate or coerce the civilian population or a unit of government."
While the defendant, as noted above, now faces charges in three separate docket numbers, his motion to dismiss is limited to a challenge to his first arrest by warrant on June 3, 2019, charging him with tampering with evidence and hindering prosecution. Therefore, the allegations in the second warrant are not the subject of any further discussion or analysis herein. Nor does this court’s decision address the most recent murder and related charges currently pending.
On July 24, 2019, the defendant filed a motion to dismiss the charges in the original arrest Warrant, pursuant to Practice Book § 41-8. The state filed its memorandum in opposition on September 3, 2019. The court heard argument on October 4, 2019. The court having now considered all the claims and contentions of the parties, denies the motion to dismiss for the reasons stated herein.
At oral argument on October 4, 2019, counsel for the defendant expressly waived any claimed conflict of interest in this court’s hearing and ruling upon this motion to dismiss, as this court had also reviewed and signed the Warrant. Counsel for the defendant also made a similar waiver on the record during an earlier pretrial appearance on September 23, 2019.
DISCUSSION
"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) State v. Bonner, 290 Conn. 468, 477-78, 964 A.2d 73 (2009). "Pretrial dismissal of criminal charges in any type of case is such a drastic remedy that it should not be resorted to lightly." State v. Bergin, 214 Conn. 657, 662, 574 A.2d 164 (1990). "Where a motion to dismiss an information against an accused is made prior to trial, only probable cause sufficient to justify the continued prosecution need be established." State v. Howell, 98 Conn.App. 369, 378, 908 A.2d 1145 (2006).
The starting point for considering all pretrial motions to dismiss criminal charges is Practice Book § 41-8. The court will first set forth this particular Practice Book provision in its entirety, before focusing in on the relevant subsections relied upon by the defendant. This is a necessary exercise, in order to properly distinguish not only what this motion to dismiss is specifically about, but also (and equally important) what this motion is not and cannot be about. Practice Book § 41-8, entitled "Motion to Dismiss," provides: "The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information:
(1) Defects in the institution of the prosecution including any grand jury proceedings;
(2) Defects in the information including failure to charge an offense;
(3) Statute of limitations;
(4) Absence of jurisdiction of the court over the defendant or the subject matter;
(5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial;
(6) Previous prosecution barring the present prosecution;
(7) Claim that the defendant has been denied a speedy trial;
(8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid; or
(9) Any other grounds.
As is further discussed herein, because the defendant was arrested in this case by the Warrant signed and served upon him, his options under the Practice Book are more limited in terms of a pretrial motion to dismiss. That is, at this pretrial stage, the defendant can only avail himself of two possible Practice Book provisions in mounting his challenge. The defendant’s motion relies upon two different subsections of Practice Book § 41-8. Specifically, Practice Book § 41-8(2), claiming alleged defects in the information, including the failure to charge an offense; and Practice Book § 41-8(8), claiming that the laws defining the offenses charged are unconstitutional or are otherwise invalid.
The defendant argues that the affidavit accompanying the Warrant and the discovery tendered by the state provide insufficient evidence to justify further proceedings. Specifically, as to the charge of hindering prosecution in the first degree, the defendant argues that the state has presented no evidence that the defendant "render[ed] criminal assistance to another person who has committed a class A or B felony or an unclassified felony for which the maximum penalty is imprisonment for more than ten years ..." See General Statutes § 53a-165aa(a). As a result, the defendant argues that the state is unable to establish a prima facie case against him for the commission of this crime as a matter of law, and that the charge must therefore be dismissed. As to the charge of tampering with physical evidence, the defendant argues that the state has failed to present sufficient evidence from which it could be found that he tampered with physical evidence, because the statute requires an additional underlying offense as to which such physical evidence was allegedly tampered with. As another ground for dismissal, the defendant argues that the state has produced insufficient evidence that the defendant knew that an official proceeding was pending, or was about to be instituted.
In its objection, the state characterizes the defendant’s motion as a "Trojan horse" that obscures the defendant’s true motives. The state argues that although the defendant purports to move for dismissal on the grounds of a defective information, pursuant to Practice Book § 41-8(2), or alternatively, that the charges in the Warrant are unconstitutional, pursuant to Practice Book § 41-8(8), that both of these challenges are merely pretextual. The state maintains that the defendant is actually seeking to attack the sufficiency of the state’s evidence, a challenge which falls under a different subsection of the Practice Book, namely § 41-8(5). The state correctly points out, however, that because the defendant was arrested pursuant to the Warrant, this avenue is specifically foreclosed to him. This is because Practice Book § 41-9, by its terms, expressly bars any defendant who has been arrested by warrant from moving to dismiss criminal charges under Practice Book § 41-8(5). Practice Book § 41-9 plainly states that: "No defendant ... who has been arrested pursuant to a warrant may make a motion under subdivisions (5) or (9) of Section 41-8." In regards to the two grounds for dismissal advanced by the defendant under Practice Book § 41-8(2) and (8), the state argues that the information as filed is not defective, and that the defendant has moreover failed to brief any claim that the laws defining the two charges are unconstitutional.
I
Practice Book § 41-8(5)
The very first sentence of the defendant’s motion for dismissal asks this court to dismiss the charges "on the grounds that there is insufficient evidence to warrant further proceedings." See D’s Mot. Dismiss, p. 1. The remainder of the defendant’s motion proceeds along this similar theme of challenging the state’s evidence in the present case. However, the proper grounds for making such a motion are not to be found under either Practice Book provision that the defendant relies upon, namely Practice Book § 41-8(2) and (8). Instead, it is found under Practice Book § 41-8(5), which provides in relevant part: "The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information ... (5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial ..." As previously stated, Practice Book § 41-9, bars a defendant arrested by warrant from moving to dismiss criminal charges for lack of evidence. The reason for this rule is derived from the spirit and purpose of motions to dismiss, which is to "prevent unchecked power by a prosecuting attorney." (Internal quotation marks omitted.) State v. Bellamy, 4 Conn.App. 520, 527, 495 A.2d 724 (1985). When the state has subjected its case to review by applying for an arrest warrant before a judge, its power is not unchecked because by finding probable cause "the judicial authority’s considered judgment has been interposed between the power of the prosecuting attorney and the rights of the defendant." Id.
See D’s Mot. Dismiss, p. 1 ("[b]ased on the lack of any supporting evidence produced by the State, the defendant respectfully requests that the charges against him be dismissed"); see also D’s Mot. Dismiss, p. 4 ("[a]s is set out in further detail below, the defendant contends that the State does not possess any evidence that he committed the crimes of Hindering Prosecution in the First Degree ... or Tampering with Physical Evidence"); D’s Mot. Dismiss, p. 5 ("[s]imply put, the State has failed to present evidence from which it can make a prima facie case for the crime of Hindering Prosecution"); D’s Mot. Dismiss, p. 6 ("[i]n this case, the State has failed to present any evidence from which it could be found that the defendant tampered with physical evidence"); D’s Mot. Dismiss, p. 7 ("[t]he State has produced no evidence that the defendant knew that ‘an official proceeding was pending, ’ or about to be instituted against him"); D’s Mot. Dismiss, p. 9 ("[t]he defendant is unaware of any evidence in the possession of the state allowing them to make a prima facie case for either of the two offenses charged").
Practice Book § 41-9, entitled "Restriction on Motion to Dismiss," provides: "No defendant who is charged with a crime punishable by death or life imprisonment for which probable cause has been found at a preliminary hearing pursuant to General Statutes § 54-46a or who has been arrested pursuant to a warrant may make a motion under subdivisions (5) [Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial] or (9) [Any other grounds] of Section 41-8 [Motion to Dismiss]."
In addition, the United States Supreme Court has made clear that the inquiry into probable cause is not necessarily based upon the offense actually invoked by the arresting officer, but upon whether the facts known at the time of the arrest objectively provided probable cause to make an arrest. See Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). Several circuits have applied the ruling in Devenpeck where probable cause exists for one offense, yet another offense is charged. See United States v. Jones, 432 F.3d 34 (1st Cir. 2005); see also United States v. Abdi, 463 F.3d 547 (6th Cir. 2006); United States v. Turner, 553 F.3d 1337 (10th Cir. 2009).
In the present case, the state charged the defendant by way of an arrest warrant. In doing so, the state subjected its broad authority to "the prior check of the judicial authority’s independent determination that probable cause exists as to each element of every crime charged." State v. Bellamy, supra, 4 Conn.App. 527. As such, the defendant’s motion to dismiss must fail. Although the court is cognizant of the state’s argument that further review of the defendant’s grounds for dismissal under Practice Book § 41-8(2) and (8) is unnecessary, given the lack of support proffered in the defendant’s motion, the court will nevertheless review these alternative grounds for dismissal.
II
Practice Book § 41-8(2)
The defendant’s arguments for dismissal under Practice Book § 41-8(2) are based entirely on statements in the Warrant affidavit. It must be remembered, however, that under Practice Book § 41-8(2), a motion for dismissal is properly considered against the information, and not the warrant itself. The law requires that "an information need not allege every element of an offense to invoke the Superior Court’s criminal jurisdiction- it need only allege the statutory citation or name of the offense, along with the date and place the alleged offense occurred." Reynolds v. Commissioner of Correction, 321 Conn. 750, 756, 140 A.3d 894 (2016); see also State v. Commins, 276 Conn. 503, 513-14, 886 A.2d 824 (2005) (rejecting subject matter jurisdiction challenge when information failed to allege an element of an offense, because it is considered "sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged" [internal quotation marks omitted]), overruled on other grounds by State v. Elson, 311 Conn. 726, 754, 91 A.3d 862 (2014); State v. Crosswell, 223 Conn. 243, 265, 612 A.2d 1174 (1992) ("[i]t is settled law that the original information, because it set forth by name and statutory reference the crime with which the defendant was charged, was sufficient to invoke the jurisdiction of the court"); State v. Alston, 141 Conn.App. 719, 732, 62 A.3d 586 ("an information that states the exact section and subsection of the statute under which a defendant is charged, as well as the time and place of the alleged unlawful event, is sufficient to charge a defendant with such offense"), cert. denied, 308 Conn. 943, 66 A.3d 884 (2013). This rule is now so well entrenched in our state’s jurisprudence that it is reflected in the practice book requirements for a valid information. See Practice Book § 36-13.
Practice Book § 36-13, entitled "Form of Information," provides: "The information shall be a plain, concise and definite written statement of the offense charged. The information need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed the offense by one or more specified means. The information shall state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated. The information shall also contain:
In the present case, the information contains two counts, one for tampering with or fabricating physical evidence, under § 53a-155, and one for hindering prosecution in the first degree, under § 53a-165aa. The information states that these offenses were committed in the town of Hartford, on or about May 24, 2019, by the defendant. As such, the information properly contains, as required, the defendant’s name, a statement of the offenses charged, citations to the statutes, the geographical location of the crime, and a statement that the crimes were committed on or about a particular date.
If the defendant had desired more specificity in the information in order to buttress his arguments, he certainly had the opportunity under the Practice Book to obtain more details from the state by filing a motion for a bill of particulars. See Practice Book § § 41-20 and 41-21. "A short form information gives a defendant only minimal data on the alleged criminal activity and is permitted by this court because of our recognition that a defendant has the opportunity to obtain the information to which he [is] constitutionally entitled by requesting a bill of particulars." (Internal quotation marks omitted.) State v. Frazier, 194 Conn. 233, 236, 478 A.2d 1013 (1984). "The function of the bill of particulars ... is to enable the defendant to obtain a more precise statement of the offense in the information in order to prepare a defense." (Internal quotation marks omitted.) State v. Cameron M., 307 Conn. 504, 530 n.24, 55 A.3d 272 (2012), cert. denied, 569 U.S. 1005, 133 S.Ct. 2744, 186 L.Ed.2d 194 (2013). The defendant bears the burden of requesting a bill of particulars. See State v. Alston, supra, 141 Conn.App. 731-32 ("[u]nder our practice, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense" [internal quotation marks omitted]); see also State v. Gardner, 96 Conn.App. 42, 51, 899 A.2d 655, cert. denied, 280 Conn. 906, 907 A.2d 92 (2006) ("[i]t is sufficient for the state to set forth a statutory designation of the crime charged, leaving the defendant the burden of moving for a bill of particulars where [the defendant] wishes greater detail regarding the manner in which [the crime allegedly was committed]" [internal quotation marks omitted]).
Practice Book § 41-20, entitled "Bill of Particulars; Time for Filing," provides: "Pursuant to Section 41-5, the defendant may make a motion, or the judicial authority may order at any time, that the prosecuting authority file a bill of particulars."
Practice Book § 41-20, entitled "Content of Bill," provides: "The judicial authority shall order that a bill of particulars disclose information sufficient to enable the defendant to prepare the defense, including but not being limited to reasonable notice of the crime charged and the date, time, and place of its commission."
Alternatively, the defendant could have also filed a motion for essential facts, pursuant to Practice Book § 36-19, which provides in relevant part: "Whenever the information charges the offense only by referring to the statute which is alleged to have been violated, the prosecuting authority, upon written request of the defendant, shall as of course amend the information by adding or annexing thereto a statement of the essential facts claimed to constitute the offense charged. Such request shall be made not later than ten days after the first pretrial conference unless otherwise directed by the judicial authority for good cause shown." The defendant’s failure to utilize the procedural rules available to him, and move to require either a bill of particulars or a statement of essential facts, if he believes the information to be inadequate, is also fatal to any claimed lack of adequate notice of the charges against him. See State v. Jesse L.C., 148 Conn.App. 216, 230-31, 84 A.2d 936, cert. denied, 311 Conn. 937, 88 A.3d 551 (2014); see also State v. Bazemore, 107 Conn.App. 441, 455, 945 A.2d 987, cert. denied, 287 Conn. 923, 951 A.2d 573 (2008). In the present case, as noted above, the court finds the short form information to be valid. Therefore, in light of the state of the record, the court will not engage in speculation as to what a bill of particulars might look like, or what additional facts might be alleged.
While the defendant’s pretrial motion to dismiss pursuant to Practice Book § 41-8(2) is therefore denied, the court notes that the defendant will have another opportunity to challenge the sufficiency of the state’s evidence at trial, regardless of the fact that he has been arrested by warrant. Pursuant to Practice Book § § 42-40 through 42-42, inclusive, the defendant may move for a judgment of acquittal either at the close of the prosecution’s case-in-chief or at the close of all the evidence. The court may also act sua sponte if the evidence presented would not reasonably permit a finding of guilty as to one or both charges in the Warrant.
III
Practice Book § 41-8(8)
Lastly, the defendant argues that the information should be dismissed pursuant to Practice Book § 41-8(8), which permits a defendant to move for dismissal based on a "[c]laim that the law defining the offense charged is unconstitutional or otherwise invalid." Challenges to criminal charges under this particular provision have been based upon on a variety of grounds, including unconstitutional vagueness, overly broad language, violations of the ex post facto clause, and due process and/or equal protection rights afforded by the United States constitution. See State v. Lewis, 273 Conn. 509, 514, 871 A.2d 986 (2005) (unconstitutional vagueness); see also State v. Halibozek, Superior Court, judicial district of Hartford, Docket No. CR-05-200065-T (October 20, 2006, Olear, J.) (45 Conn.L.Rptr. 680) (unconstitutional vagueness); State v. Gebreselassie, Superior Court, judicial district of Hartford, Docket No. CR-00-0546661-T (February 7, 2001, Scarpellino, J.) (unconstitutional vagueness and overly broad language); State v. Bacon, Superior Court, judicial district of New Haven, Docket No. CR- 03-0216984-T (February 28, 2005, Arnold, J.) (38 Conn.L.Rptr. 771) (overly broad language); State v. Desocio, Superior Court, judicial district of Waterbury, Docket No. CR-07-358628-T (February 6, 2008, Markle, J.) (45 Conn.L.Rptr. 869) (violation of ex post facto clause); State v. Robinson, Superior Court, judicial district of Litchfield, Docket No. CR-99-0099216-T (March 22, 2001, Agati, J.) (due process violation); State v. Doe, 46 Conn.Supp. 598, 765 A.2d 518 (2000) (due process and equal protection violations).
"Pursuant to Practice Book § 41-6, it is the defendant’s responsibility, when making a pretrial motion, to include a statement of the ... factual and legal [or other] basis supporting the motion ... This requirement serves to provide notice to the opposing party, in this case the state, of the grounds on which the motion is made, and allows the preparation of an appropriate response." (Citation omitted; footnote omitted; internal quotation marks omitted.) State v. Bonner, supra, 290 Conn. 482. The defendant’s motion to dismiss is void of any legal support for or analysis of his contention that § 53a-155 or § 53a-165aa are either facially unconstitutional or unconstitutional as applied here. This inadequate briefing is dispositive under Practice Book § 41-6. Therefore, as to Practice Book § 41-8(8), the motion is also denied.
Practice Book § 41-6, entitled "Form and Manner of Making Pretrial Motions," provides: "Pretrial motions shall be written and served in accordance with Sections 10-12 through 10-17 unless, for good cause shown, the judicial authority shall grant permission to make an oral pretrial motion. Every written motion shall include a statement of the factual and legal or other basis therefor, shall state whether the same or a similar motion was previously filed and ruled upon, and shall have annexed to it a proper order. All defenses and objections that must be raised by motion prior to trial shall, to the extent possible, be raised at the same time."
CONCLUSION
The defendant’s motion to dismiss is DENIED.
(1) The name of the court in which it is filed;
(2) The title of the action;
(3) The name of the defendant;
(4) A statement that such crime was committed in a particular judicial district or geographical area, or at a particular place within such judicial district or geographical area; and
(5) A statement that such crime was committed on, or on or about, a particular date or period of time.