Opinion
No. N07MCR04 02220460
August 26, 2008
MEMORANDUM OF DECISION ON DEFENDANT'S AMENDED MOTION TO DISMISS
On June 12, 2008, the defendant moved for dismissal of all charges claiming violation of his rights to a speedy trial and due process of law, as provided by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Connecticut constitution. In his accompanying brief, the defendant specifically argued that these constitutional violations arose because he "was arrested and arraigned more than four years ago, his case was soon thereafter placed on the jury trial list, and only now has the case been brought in for trial." See Brief in Support of Amended Motion to Dismiss dated June 12, 2008 (Brief). Acknowledging that he has never filed a motion therefor, the defendant does not claim that he has been deprived of his statutory right to a speedy trial. He asserts that his concurrent constitutional rights have been violated, however, because although judicial authority maintains exclusive control of the trial docket of this court, his case was subjected to an "unexplained and warranted delay" in assignment for trial, and that, as a result, he has suffered irreparable prejudice to and compromise of his defense. Amended Motion to Dismiss, June 12, 2008 (Amended Motion). In response, the state contends that any explainable delay in the scheduling of this trial was due to continuance requests tendered on the defendant's behalf.
An evidentiary hearing on the amended motion to dismiss was held on June 12 and 13, 2008. In support of his motion, the defendant testified on his own behalf and elicited testimony from Atty. James Cirillo (Cirillo), his prior counsel. Counsel stipulated that the judicial notice could be taken with regard to the court file in this criminal proceeding, and the deputy clerk testified to clarify the notations appearing within and upon the court file. The state declined the opportunity to present any witnesses or written argument in opposition to the amended motion to dismiss. On June 13, 2008, both parties presented oral argument concerning this motion.
For the reasons set forth herein, the defendant's motion to dismiss is hereby DENIED.
I HISTORY OF THE PROCEEDINGS
The court file reflects the following events:
"Because the defendant's Motion raises a number of questions concerning alleged delays in the prosecution of these matters, and because a resolution of these issues necessitates consideration of the reasons for any such delays, the court must recount the relevant facts and procedural history at some length and in a fair amount of detail." State v. Malito, Superior Court, Judicial District of Waterbury, Complex Litigation Docket at Waterbury, Docket No. HHD-CR03-78859 (Gold, J., Mar. 18, 2008). In the present matter, transcripts were not provided to reflect the specific events that occurred in connection with pretrial court appearances. Compare State v. Malito, supra, and e.g., State v. Almgren, 12 Conn.App. 364, 366, 530 A.2d 1089 (1987).
On March 11, 2004, the defendant was arrested and charged with Cruelty to Animals in violation of General Statutes § 53-247 and Unlawful Discharge of Firearms in violation of General Statutes § 53-203; he was released without bond. On April 1, 2004 represented by Cirillo, the defendant was arraigned; again, no bond was imposed, and the matter was continued until April 29, 2004. The case was continued to May 25, 2004. On June 23, 2004, as the parties could not agree upon a disposition, the defendant elected a jury trial, whereupon the case was placed on the firm jury list. On July 6, 2004, through counsel, the defendant filed numerous pretrial motions; the court file does not establish whether the defendant appeared in court on that date.
The court file does not reflect any entry of a predicate not guilty plea on this date.
Neither the court file nor the testimony reflects any activity in the case between July 6, 2004 and September 25, 2006. However, Cirillo reported that on one occasion during that period, the court called the matter in from the firm jury list, and a judicially supervised pretrial was held. By letter dated September 13, 2006, the clerk informed Cirillo that the matter had been reassigned to the Gun Court, where a hearing was scheduled for September 25, 2006. On October 10, 2006, the case was transferred back to G.A. 7. On October 17, 2006, the case was again placed on the firm jury list at G.A. 7.
On October 25, 2006, the state filed a substitute information charging a single count of breach of peace in violation of General Statutes § 53a-181. With the newly reduced charge in place, the defendant filed an application for participation in the Accelerated Rehabilitation (AR) program on that date. On November 13, 2006, the defendant was reported to be ineligible for this program due to "prior A.R. participation" from January 1984 through January 1986. Thereafter, on the defendant's behalf, his counsel requested a number of continuances for additional investigation of his AR eligibility. The AR application was thus continued for hearing on November 22, 2006, then continued to December 6, 2006 and scheduled for return to court on January 9, 2007. On January 8, 2007, the court effectively granted Cirillo's motion for a further continuance until January 22, 2007. To accommodate the defendant's continued investigation of the program eligibility issue, hearing of his AR application was continued to that date and was further continued to February 22, March 12, April 13, and to May 22, 2007. The application was again continued for hearing on June 23, 2007; on June 19, 2007, however, Cirillo moved for a continuance until July 18, 2007, for purposes of "investigation." On July 18, 2007, Cirillo's office informed the court that illness would prevent counsel's appearance on that date; at his request, the matter was continued to August 8, 2007.
The court contains a series of letter is that were apparently submitted in support of the defendant's AR application. These letters bear dates of December 8, 2005; March 29 and 30, August 1 and 10, 2006.
Cirillo had requested, in the alternative, continuance of the matter until January 22 or January 29, 2007.
Despite his insistence upon his eligibility for AR, the defendant apparently then determined to pursue his application no further. Without formal hearing of the application, the defendant tendered his plea of not guilty to the pending breach of peace charge on August 8, 2007, whereupon the matter was returned to the firm jury list. The matter was continued until September 13, 2007, and a judicially supervised pretrial was held on October 17, 2007. The matter was continued until November 1, 2007; however, on October 31, 2007, Cirillo requested a continuance until November 15, 2007, indicating that his unavailability was due to a civil trial commitment in New Haven. The matter was presented in court on that date.
The clerk explained that on some unidentified date, the case was assigned a date of "12/29/10" for jury scheduling, an administrative purpose unrelated to the actual assignment of the case for trial.
The court file reflects no court appearances from that date through June 2008. However, on November 19, 2007, Attorney John R. Williams entered his appearance on the defendant's behalf in lieu of Cirillo. On that date, through Williams, the defendant filed a Request for Production of Warrants. On December 4, 2007, through Williams, the defendant filed a Motion for Disclosure and Examination, a Motion for Bill of Particulars, a Request for Essential Facts, and a Claim for Motions Docket and Motion for Argument on Motions. At that time, the defendant's new counsel did not file any motion indicating interest in having the merits of the prosecution presented to a trier of fact. Other than written submission by way of the Claim for Motions Docket and Motion for Argument on Motions, neither the defendant nor the state took any steps directed at obtaining a hearing of these matters, or the motions filed in July 2004, prior to the case's assignment for trial.
On June 6, 2008, the court informed the parties, in writing, that trial of the case was scheduled to commence on June 10, 2008. In court on June 11, 2008 the state filed a long-form information, reinstating the charges of cruelty to animals and unlawful discharge of a firearm as originally presented in April 2004, and eliminating the breach of peace charge. On that date, the defendant filed a motion to dismiss the case due to the untimeliness of the trial schedule. On June 12, 2008, the state filed an amended long-form information further specifying the manner in which the charged crimes were alleged to have been committed. Also on June 12, 2008, the defendant filed the amended motion to dismiss that is the subject of the court's present attention, accompanied by a supporting brief.
The defendant has never filed any motion for a speedy trial, as contemplated by Practice Book § 43-41. The record supports the conclusion that prior to submission of the June 2008 motions to dismiss, he never expressed his willingness to commence trial, and never made any general or specific request for commencement of trial at any particular time. At liberty since the commencement of the prosecution, the record permits the inference that the defendant was satisfied with the pendency of his case upon the trial list, making known his dissatisfaction with the trial schedule only through the June 2008 motions to dismiss that were filed after the case was called in for trial before a jury.
Practice Book § 43-41 provides, in pertinent 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 . . . Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules."
II APPLICABLE LEGAL PRINCIPLES
The court has utilized the following well-acknowledged principles of law in addressing the defendant's claims that his constitutional right to a timely trial was violated by the duration of pendency upon the docket:
"`Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society.' (Internal quotation marks omitted.) State v. Jeffreys, 78 Conn.App. 659, 669-70, 828 A.2d 659, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003)." State v. Gaston, 86 Conn.App. 218, 860 A.2d 1253 (2004), cert. denied, 273 Conn. 901, 867 A.2d 840 (2005). See also State v. Lacks, 58 Conn.App. 412, 417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000), citing State v. Mooney, 218 Conn. 85, 117, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991).
"`The sixth amendment guarantee of a speedy trial is a fundamental right made applicable to the states through the fourteenth amendment to the United States constitution . . . In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court articulated a balancing test for determining when a defendant's constitutional right to a speedy trial has been violated.' (Citation omitted.) State v. Turner, 252 Conn. 714, 742, 751 A.2d 372 (2000) . . . `The Supreme Court of the United States and [the Connecticut Supreme Court] have identified four factors which 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.' (Citations omitted; internal quotation marks omitted.) State v. Martin, 56 Conn.App. 98, 102-03, 741 A.2d 337 (1999), cert. denied, 252 Conn. 926, 746 A.2d 790 (2000)." (Emphasis added.) State v. Gaston, supra, 86 Conn.App. 226. See also State v. Lacks, supra, 58 Conn.App. 417.
III RESOLUTION OF THE DEFENDANT'S CLAIMS
Recognizing that the Barker test requires consideration of each of the identified factors in consolidation with the others, the court commences its analysis by addressing the first Barker factor. Here, the court must consider the length of time that transpired between the state's initiation of the prosecution and the date the matter was scheduled to start trial. The court finds this issue in favor of the defendant.
"`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 of Barker. See, e.g., State v. Gasparro, 194 Conn. 96, 100, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S.Ct. 90, 88 L.Ed.2d 74 (1985) (three and one-half years); State v. Davis, 192 Conn. 739, 740-41, 474 A.2d 776 (1984) (twenty-six months); State v. Cleary, 3 Conn.App. 349, 350-51, 488 A.2d 831 (1985) (thirty-eight months)." (External citation omitted.) State v. Lacks, supra, 58 Conn.App. 418. "`There is no constitutional basis for holding that the speedy trial right can be quantified into a specific number of days or months.' . . . `The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance . . .'" (Citation omitted; internal quotation marks omitted.) State v. Brown, 40 Conn.App. 483, 488-89, 671 A.2d 1316 (1996), aff'd, 242 Conn. 389, 699 A.2d 943 (1997)." State v. Gaston, supra, 86 Conn.App. 227. See also State v. Nicholson, 71 Conn.App. 585, 599, 803 A.2d 391, cert. denied, 261 Conn. 941 (2002). Nonetheless, a threshold for pre-trial delay can be discerned. Thus, "[o]ur courts have held that [a]lthough nine months is not an overwhelming period of time [to be incarcerated before trial], it is of such length that there is a necessity for inquiry into the other factors that go into the balance." Id. Similarly, in State v. Lacks; supra, 58 Conn.App. 418, the Appellate court found that a delay of over two years was sufficient to warrant consideration of the Barker factors to determine whether the defendant's constitutional right to a speedy trial had been violated.
This case clearly meets the threshold parameters described above. As found in Part I, the present prosecution was first brought to court on April 1, 2004; the case was formally called to trial on June 10, 2008. Approximately fifty months had thus transpired from the date of the defendant's arraignment before a jury trial was made available for him and the state. At oral argument of this motion to dismiss, the state agreed that "four years is entirely too long to have a case languish, to use [defense counsel's] words, on the jury docket." Tr. 6/13/08, p. 29. Given this concession the court need not further examine whether the length of time between the initiation of the prosecution and the scheduled start of trial was "presumptively prejudicial . . ." State v. Lacks, supra, 58 Conn.App. 418.
As in State v. Gasparro, in which more than three and one-half years had elapsed between the defendant's arrest and his presentation before a jury, the present "extensive delay is clearly sufficient to warrant an `inquiry into the other factors that go into the balance.' Barker v. Wingo, supra, [ 407 U.S.] 530. It is not so extreme, however, as the period of more than five years considered in Barker v. Wingo, supra, and found insufficient by itself to indicate a violation of the speedy trial right." State v. Gasparro, supra, 194 Conn. 100. Given these circumstances, the calendar length of the delay in the present matter renders it appropriate for the court to "engage in further Barker analysis." State v. Gaston, supra, 86 Conn.App. 227.
The court accordingly turns to "[t]he second factor under the Barker matrix [which] concerns the reasons for the delay of trial." (Emphasis added.) State v. Lacks; supra, 58 Conn.App. 418. Here, the defendant does not blame the state for the delay, but tacitly claims that the court has deprived him of his right to a timely trial, as "[t]he trial docket is controlled exclusively by the judicial authority." Amended Motion. The state contests the claim that blame for the delay "can be placed on any particular branch of the government . . ." Tr. 6/13/08, p. 29. Furthermore, the state argues that the defendant's own conduct, by way of requesting continuances and failing to file a speedy trial motion, caused the delay at issue, so that dismissal is not warranted. The court finds this issue in favor of the state.
"Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." Barker v. Wingo, supra, 407 U.S. 531. Thus, "[i]n examining the reason for the delay, we focus on whether the state was making a deliberate attempt to delay the trial in order to hamper the defense or whether there existed a valid reason . . . [that] should serve to justify appropriate delay." (Internal quotation marks omitted.) State v. Lacks, supra, 58 Conn.App. at 418. State v. Gaston, supra, 86 Conn.App. 227.
In the present matter, there was no evidence whatsoever from which the court could reasonably conclude that the state, in any way, intentionally or unintentionally engaged in deliberate or conscious attempts to delay the presentation of this case before a jury. Although the state did not timely respond to the defendant's July 2004 discovery requests, the defendant does not claim, and the record does not suggest, that this inactivity constituted a calculated effort to hamper his trial preparation. State v. Gaston, supra, 86 Conn.App. 227. Neither the evidence presented at the hearing nor the court file reflects any continuance request that was made by the state, although the state apparently cooperated with the defendant's multiple efforts at deferring consideration of his AR application. Under these circumstances, "it would strain reality to view the state's action allowing the case to remain on [the trial] list" as being tantamount to prosecutorial efforts at interfering with the defendant's right to a speedy trial. State v. Winer, 286 Conn. 666, 678, 945 A.2d 430 (2008).
Moreover, the facts of this case fail to disclose any categorically "valid" reason for the delay in bringing this case to trial, as contemplated by State v. Gaston, supra, 86 Conn.App. 227, that could be unattributable to any party or to the court. Here, for instance, there are no claims regarding an errant but essential witness, and no party to the litigation has been functionally unavailable. Id.; see also Barker v. Wingo, supra, 407 U.S. 531.
Further examples of so-called "valid" reasons for delay may be referenced in General Statutes § 54-56b, establishing a defendant's right to dismissal or trial upon the state's decision to nolle charges when "a material witness has died, disappeared or become disabled or . . . material evidence has disappeared or has been destroyed [so] that a further investigation is therefore necessary." See also Practice Book § 39-30 (similar language).
In fact, other than the multiple continuance requests submitted by the defendant, as cataloged in Part I, this case presents scant information of what factors, in general or in particular, "resulted in the delay of the trial." State v. Gaston, supra, 86 Conn.App. 228. The referral of the matter to the Gun Court consumed but a few weeks of time, whereupon the case was promptly returned to G.A. 7, for reasons that are not apparent upon the record. As in Gasparro, where the defendant failed in his efforts to obtain dismissal on timeliness of trial grounds, there is no indication in the present case that the defendant ever appeared in court to oppose any postponement request that had been submitted. State v. Gasparro, supra, 194 Conn. 101. The procedural history of this case instead compels the finding that despite the fact that the case was maintained on the trial list from June 23, 2004 through September 25, 2006, and again from August 8, 2007 through June 10, 2008, the defendant not only acquiesced to this delay, but that he utilized a significant portion of this time period to continue investigation of his eligibility for the AR program. This conclusion is consistent with the court's determination that the defendant's own conduct in requesting continuances contributed to and actually served as the cause for the delay in bringing this case before the jury for the entire period of September 25, 2006 through August 8, 2008. See Part I.
In addition, the defendant's claim that "[t]he trial docket of this court is controlled exclusively by the judicial authority" is overly simplistic, and fundamentally disregards the affirmative opportunity for submission of a speedy trial motion provided by Practice Book § 43-41. As the state has aptly argued, by filing such a motion, the defendant, and not the court or its administrators, would effectively gain control over the date on which his case would be heard. The intrinsic value of filing such a motion, when a defendant seeks to promote timeliness in the scheduling of his case for trial, is apparent in his acquisition in the right to dismissal in the event that the court does not timely respond to the motion. However, it is uncontested that the defendant never filed a speedy trial motion in this case, and thus never accessed his statutory right to affirmatively participate in the scheduling of the case for hearing before the jury. It is further uncontested that despite numerous court appearances over the years, the defendant never affirmatively requested that the case be assigned for trial to commence on a particular date. Effectively, therefore, he voluntarily ceded the selection of a trial date and deferred trial assignment to the judicial authority.
As the state aptly stated at oral argument of this motion to dismiss, "four years is too long to be on the jury list, but the State does not have the ability to file a Motion for Speedy Trial, but the defense does." Tr. 6/13/08, p. 33.
In reaching its determination on the defendant's constitutional claims, the court has considered the implications of Practice Book § 43-39(a), facially requiring commencement of the defendant's trial "within 12 months from the filing of the information" on April 1, 2004. The court has also considered the implications of the exceptions to that rule set forth in Practice Book § 43-40(7), which excludes computation of the time with which the defendants trial should have commenced any "period of delay resulting from the continuance requested by the judicial authority at the personal request of the defendant." Using this measure, the court would properly exclude the time period from October 25, 2006, when the file reflects that the defendant submitted his application for accelerated rehabilitation, through August 8, 2007, when he had completed the contest concerning his candidacy for the program, and tendered his plea of not guilty so that the case was restored to the firm jury docket. Other than these periods, there was insufficient evidence from which the court could reasonably identify any specific reason why the case was continued from date to date. Otherwise, "the record is not adequate to review the reasons for the delay" in so far as Practice Book §§ 43-39 and 43-40 are concerned. State v. Silva, 43 Conn.App. 488, 684 A.2d 725 (1996). As previously noted, the defendant does not claim, and the evidence does not support a finding of that the state affirmatively interfered with the timely progress of this matter upon the trial list, or even requested a continuance resulting sanctioned trial delay, as contemplated by Practice Book § 43-40(8). Under all these circumstances, the court declines the opportunity to utilize these Practice Book provisions to formalistically measure the delay in the present case.
Any unidentifiable reasons for delay in bringing the defendant's case to trial cannot be held against the state, and should not be weighed against either the state or against the judicial authority; rather, such reasons are effectively "neutral" within the meaning of Barker. State v. Almgren, supra, 12 Conn.App. 369, citing, among others, Barker v. Wingo, supra, 407 U.S. 531; and State v. Gasparro, supra, 194 Conn. 100. Our courts have acknowledged that, from time to time, a phenomenon identified as "institutional negligence" may affect the management of the criminal trial dockets. State v. Winer, supra, 286 Conn. 686; see also State v. McCahill, 265 Conn. 437, 444, 453, 828 A.2d 1235 (2003) (dismissal granted due to institutional negligence and "administrative incompetence" when motion for speedy trial was brought by incarcerated defendant but not timely acted upon by the scheduling authority). A defendant can manage any prejudicial effect of such an occurrence through utilization of the mechanisms available, by statute or pursuant to the Practice Book, for promotion of trial assignment. In this case, however, the defendant failed to provide sufficient evidence from which the court could reasonably conclude that such institutional negligence actually occurred; in the absence of such evidence, the court declines to speculate as to the circumstances that led to the delay in scheduling the matter for trial, other than the defendant's own continuance requests, referenced herein. Even if the defendant had proved that such institutional negligence had affected the assignment of his case for presentation to the jury, such a circumstance must be weighted less heavily than any deliberate attempt, by the state or by any other factor, to cause a delay in the proceedings. Barker v. Wingo, supra, 407 U.S. 531; State v. Gaston, supra, 86 Conn.App. 227; State v. Lacks, CT Page 14073 supra, 58 Conn.App. at 415. Such application would fail to provide the defendant with the succor he seeks insofar as the second Barker factor is concerned.
Unfortunately for Granata, while the relevant principles of law regarding institutional negligence were elucidated in State v. McCahill, supra, neither the reasoning nor the result of the case provide him with the relief requested; the fundamental factual distinction between his case and McCahill's render that opinion inapposite to the present claims. McCahill's consideration of the defendant's right to a speedy trial, and the institutional negligence that interfered with his access to that trial, were predicated upon the speedy trial motion that defendant had filed, as contemplated by § 54-82m. No such motion was ever filed by Granata personally, by his prior counsel, or by his present counsel. Thus, even if the evidence in the present case could reasonably be construed as providing the basis for finding institutional negligence or administrative incompetence, a conclusion not drawn by this court, in the absence of a speedy trial motion, McCahill does not entitle the defendant to dismissal. The filing of a speedy trial motion, followed by a motion to dismiss, is a precondition to dismissal pursuant to our statutory scheme. State v. McCahill, supra, 265 Conn. 453. "When the legislature amended the bill underlying the speedy trial rule to require that defendants affirmatively trigger the dismissal provision of the statute by moving for a speedy trial at the end of the twelve month period, it did so with the intent that the defendant's motion would alert both the court and the state that the clock was running and that, to avoid dismissal of the charges, the defendant would have to be afforded a trial within thirty days . . . The legislature recognized that institutional negligence might occur during the twelve month period, and that the defendant's speedy trial motion would remind the state that it must commence the trial within thirty days or face a dismissal . . . In other words, the motion for a speedy trial is supposed to be the state's `wake up call.'" (Internal citation omitted; footnote omitted.) Id., 451-52. The pivotal, affirmative nature of the defendant's obligation to trigger the statute's dismissal provision was made even more apparent through reference to an additional feature of the legislative history, as recounted in State v. McCahill: "Representative Jaekle stated: `In order to prevent [a] defendant's being released because the [s]tate . . . could not comply with the [twelve] month deadlines, or worse yet, some prosecutor has not properly diaried or scheduled a trial, the case cannot be dismissed until the [twelve] month period expires and the defendant makes a motion that the trial, indeed [be] commenced . . . I look at this as an important safeguard in case . . . some prosecutor has forgotten the . . . deadline." Id., 452 n. 13.
For instance, the defendant failed to present evidence sufficient for the court to conclude that the delay in the present case was caused by congestion of the local criminal docket. Compare State v. Flowers, 198 Conn. 542, 503 A.2d 1172 (1986) (concluding that demonstrated docket congestion was the operative cause for delaying the defendant's trial, but rejecting defendant's claim that the delay was caused by the prosecution's improper control of the cases on the trial list and by the court's failure to afford the defendant a speedy trial when it was in its power to do so.) "While docket congestion does not justify or excuse delay; State v. Davis, 192 Conn. 739, 742, 474 A.2d 776 (1984); it is considered a neutral reason and is `weighed less heavily against the state than purposeful delaying tactics.' State v. Gasparro, [ supra, 194 Conn. 100]." Id., 550-51.
Next, the court examines "[t]he third Barker factor [which] is the assertion by the defendant of his right to a speedy trial." State v. Lacks, supra, 58 Conn.App. at 419. Here, the court concludes that the defendant has failed to establish, in support of his motion, that he exercised any reasonable efforts to affirmatively assert his right to trial, prior to June 6, 2008 when the court informed the parties that their case had been called in for presentation to the jury. The defendant has argued that his mere act of placing the matter upon the firm jury list, on June 23, 2004, should be seen to be an affirmative act sufficient to assert his right to a speedy trial, and that the court's failure to bring the matter before the jury within a reasonable time thereafter violated his constitutional rights. In the absence of applicable authority, the court declines to accept this contention. Even if the defendant's request that the case be placed upon the firm jury list could be seen to constitute an assertion of his right to a speedy trial, the defendant affirmatively terminated that right by the submission of his AR application on October 25, 2006; the request for the opportunity to participate in such a diversionary program is intrinsically inconsistent with a request for the state to present proof of guilt before the trier of fact. Moreover, the defendant's presentation of serial requests for continuances even after he was deemed ineligible for the AR program, for the stated purpose of continuing investigation in an effort to establish his access to that alternative method of resolving the pending criminal charges without a trial, renders unpersuasive any claim that he had asserted his right to a speedy trial in June of 2004. Only ten months transpired between August 8, 2007, when the matter was returned to the firm jury docket upon the defendant's indication that he would no longer pursue the AR application, and the presentation of the case for trial before the jury. The defendant does not claim that this ten-month period, in and of itself, constitutes an overly long delay in bringing the matter forth for trial; even if he should so argue, his failure to affirmatively assert his right to trial within that ten-month period would fail the third prong of the Barker test.
The defendant's argument that he acquired Barker protection by affirmatively placing the matter on the firm trial list on June 23, 2004 is also inconsistent with protocol for acquiring speedy trial rights, as both the Practice Book and our common law clearly contemplate the submission of a formal motion in order to trigger the relief provided through either rule or its constitutional parallel. See Practice Book § 43-41; State v. Gasparro, supra, 194 Conn. 100-01. This contention also places an unreasonable burden upon the judicial branch, as it would require nearly immediate assignment of every criminal case to a courtroom for trial, upon submission of a firm jury claim, in order to avoid dismissal of the pending charges. The defendant has not been held in custody for lack of a bond, and his liberty has not been shown to present an "unusual" risk over those of other criminal cases whose trials may have been scheduled before his. In addition, even if the defendant's submission was founded in law or in logic, he effectively demonstrated an unwillingness to proceed to trial through his failure to inform any court personnel or the prosecution of his desire for a trial assignment, and though his own conduct in causing the case to be removed from the firm jury list from October 25, 2006, through August 8, 2007, when it was returned to that list.
While the court received no evidence regarding other cases which may have received trial assignments prior to the defendant's, Practice Book § 44-16, entitled "Scheduling from Trial List," is applicable. This section provides, in pertinent part: (a) The judicial authority shall assign for trial on dates certain so much of the trial list as shall be deemed necessary for the proper conduct of the court . . . Cases shall be assigned for trial in the order in which they appear on the trial list and they should be tried in the order in which they are assigned for trial, except that the judicial authority may depart from the listed order and may give priority in assignment or trial to the following types of cases: (1) Cases in which the defendant is being held in custody for lack of a bond; (2) Cases in which the judicial authority has granted a motion for a speedy trial; or (3) Cases in which the judicial authority reasonably believes that the pretrial liberty of the defendant presents unusual risks over those of other criminal cases. (b) The judicial authority shall not assign for trial on a date certain a number of cases greater than that which can be reasonably expected to be reached for trial on that date, based on the court's resources for trial and the number and percentage of trials generally conducted."
Our case law has consistently held that a defendant's failure to submit a motion requesting a speedy trial, whether based upon rule-based, statutory or constitutional grounds, deprives that litigant of the right to dismissal based on failure to timely commence proceedings before the finder of fact. See, e.g., State v. Nicholson, supra, 71 Conn.App. 596-97 (in the absence of prejudice and/or motion for speedy trial, defense counsel's alleged inactivity during the sixteen-month period prior to start of trial was insufficient basis for dismissal). It is the submission of such a motion, profoundly absent in the present case, that affirmatively communicates, and thereby affirmatively establishes, the defendant's claim to perfection of the right to a speedy trial, in constitutional terms. In State v. Lacks, supra, where the defendant's motion for dismissal of his charges based on constitutional speedy trial grounds was denied, the Appellate Court emphasized the need for the defendant's communication of his desire that a trial be commenced. In that case, "[t]he defendant's assertion of his right to a speedy trial by a motion to dismiss was not filed until nearly twenty-four months after his arrest. `This factor 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 . . ." Barker v. Wingo, supra, [ 407 U.S.] at 528 (external citation omitted). State v. Lacks, supra, 58 Conn.App. 419. Thus, while the court will not presume waiver of any right to a speedy trial from the defendant's failure to demand a speedy trial, his failure to communicate any desire that the state be called upon to present its proof before a jury, at any time prior to June of 2008, diminishes the impact of the delay in this case. To the contrary, had the defendant in any measurable way asserted his right to a speedy trial, that assertion would "weigh heavily in his favor." State v. Flowers, supra, 198 Conn. 548. However, the absence of such an assertion in the present case, as in Lacks, supra and in Nicholson, supra, "militates against the defendant's claim" that his charges should be dismissed because his case so long languished on the trial list. (Internal quotation marks omitted.) Id.
Although the defendant relies, in part, upon State v. Nicholson, supra, as support for his claimed right to dismissal, the procedural admonishments within the text of that opinion instead bolster the position promoted by the state herein. Nicholson reminds us that: "`Because a motion to dismiss is waived unless filed before the commencement of trial and a motion for a speedy trial must precede a motion for dismissal, logically a motion for a speedy trial must also be filed before the commencement of trial in order to be afforded a remedy under the rules . . . For the purpose of the speedy trial rules, commencement of trial means the commencement of the voir dire examination in jury cases and the swearing-in of the first witness in nonjury cases.' (Citation omitted; internal quotation marks omitted.) State v. Lacks, supra, 58 Conn.App. 415-16. By not filing a motion for a speedy trial, the defendant waived his statutory speedy trial claim." State v. Nicholson, supra, 71 Conn.App. 598. Similarly, in this case, because the defendant never communicated his request for a speedy trial prior to filing his motion for dismissal, his claims based on constitutional grounds must fail.
Furthermore, as previously found in relation to the second Barker factor, the procedural history of this case compels the finding that although the case remained on the trial list from June 23, 2004 through September 25, 2006, and again from August 8, 2007 through June 10, 2008, "the defendant never once appeared in court to oppose a postponement." State v. Gasparro, supra, 194 Conn. 101. This conclusion is consistent with the court's determination that, prior to June 2008, the defendant never affirmatively communicated his right to a speedy trial, requested that the matter be assigned a trial date or otherwise demonstrated any interest in accelerating the process of trial assignment. As in Gasparro, a "review of the record indicates a complete failure on the part of the defendant to assert his right of speedy trial until the eve of trial" when, in the present matter, the issue was only raised through the pending motion to dismiss. Again, "`failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.' Barker v. Wingo, supra, 407 U.S., 532." State v. Gasparro, supra, 194 Conn. 101.
Balance of the elements of the third Barker factor leads to the conclusion that prior to the submission of the pending motion to dismiss, the defendant never affirmatively asserted his right to a speedy trial. To the contrary, even when his substitute counsel appeared in November 2007, several months after not guilty pleas had been entered, and while the defendant was presenting motions for discovery ostensibly seeking the court's supervisory assistance in preparation for the litigation, the defendant failed to submit a motion requesting trial assignment. The defendant's voluntary inaction with regard to communication of a request for a speedy trial, is functionally similar to a waiver, and cannot in any way support the third Barker element. Accordingly, this factor, as well, is found in favor of the state.
The court is last called upon to examine the fourth Barker factor. "`The final Barker factor, prejudice to the defendant, is the linchpin of the speedy trial claim . . . [U]nlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself . . . The right to a speedy trial is designed (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired . . . In Barker . . . the court noted that of the three interests served by the right to speedy trial, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." (Internal and external citations omitted; internal quotation marks omitted.) [ State v. Lacks, supra, 58 Conn.App. 419-20]." State v. Gaston, supra, 86 Conn.App. 228.
On July 13, 2008, after hearing, the court made certain factual findings as a predicate to denying the defendant's Motion to Dismiss, filed in court on July 11, 2008, contending that the state had unreasonably delayed in providing responses to discovery requests and asserting that the defendant had been prejudiced through that conduct. In ruling on this motion, the court fully discussed, and resolved in favor of the state, the defendant's factual claims that the pre-trial delay had adversely affected his ability to fairly prepare his case for trial. Generally, in support of both that motion and the present motion to dismiss, the defendant provided testimony to illustrate the two specific ways in which he claims to have been adversely affected by the approximately fifty months that had transpired between arraignment and the scheduled commencement of trial. First, the defendant claimed that his father's sudden death on February 16, 2008 deprived him of the ability to call "a crucial defense witness." Amended Motion. The defendant intended to utilize this witness to introduce hearsay establishing that on the night in question, while in an emotional state, the defendant had called and stated that his dogs and ducks had been attacked; that he had discharged his firearm in response; and that he did not hit anything except the pond. In support of his motion, the defendant testified that he had made this call to his father some ten to fifteen minutes after the incident; that he claimed to have been upset at the time, but that he could not recall physical manifestations of his emotional state. Under these circumstances, the defendant has failed to provide sufficient basis from which the court could reasonably determine that testimony from his father would be susceptible to any exception to the rule against hearsay. Furthermore, even if this testimony could be found admissible, there is insufficient basis for concluding that such evidence would be "crucial" to the defense, as the defendant claims, given the availability of other means for establishing the same aspects of the defendant's conduct on that occasion. The defendant has therefore failed to provide the court with reasonable grounds for measuring any prejudice to his case that resulted from his father's unexpected death.
On July 10, 2008, following hearing of this motion to dismiss, counsel for the defendant filed a motion for the case to be continued until August 22, 2008. The state did not object to this request for continuance, which the court granted on that date to accommodate defense counsel's stated obligations.
The defendant further intended to utilize his father's testimony to establish that the defendant had been told, by his father, not to call the authorities after the event.
Second, the defendant claimed that "his ability to defend himself has been irreparably compromised, in that the scene of the disputed events has undergone significant physical changes . . ." Amended Motion. It is uncontested that the criminal conduct at issue is alleged to have taken place upon the defendant's own property. In support of this aspect of his motion to dismiss, the defendant testified that he would have preferred that the jury be permitted to view the property and thus understand how the event had occurred; he complained that this view cannot now be conducted because the appearance of the area in question has been changed. The defendant admits, however, that he, an experienced landscaper, personally and voluntarily caused and intentionally created the reconfiguration of his property at issue. Instead of allowing the environment to remain in the condition which he claimed would have substantiated his defense, he installed a pool and a shed in the vicinity where the alleged shooting took place.
Thus, the defendant, without duress but entirely voluntarily, altered the crime scene pending assignment of this case for trial. The defendant, having chosen to engage in landscaping of the scene, cannot reasonably now claim that this very alteration has "irreparably compromised" his ability to defend himself such that he has suffered Barker-type prejudice. (Amended Motion.) In other words, he cannot benefit from his intentional modification of a scene at which the crime is alleged to have occurred. Even if such an argument could carry any weight, the defendant further admits that he has access to photographs of the property as it existed prior to the installation of his swimming pool, which would, at least in part, demonstrate the scene to the jury.
Third, the defendant claims, without specificity, that "memories of surviving witnesses may have been affected." Amended Motion. He has failed to specify which witnesses have suffered such an impairment, or the extent to which time may have affected such witnesses. This aspect of this argument is, as well, without weight. "A claim of general weakening of witnesses memories, relying on the simple passage of time, cannot, without a more specific showing, be said to prejudice the defendant . . ." (Internal quotation marks and external citation omitted.) State v. Lacks, supra, 58 Conn.App. 420. Thus, he has again failed to demonstrate the type of prejudice contemplated under the Barker test.
Fourth, the defendant claims that "[d]uring the many years this case has remained untried, other evidence has been lost through the passage of time . . ." Amended Motion. As he has failed to identify which evidence has been so affected, the court is unable to measure how, if at all, any delay in scheduling the trial of this case has resulted in any particular impact upon the defendant's ability to adequately prepare his case for trial. Again, despite the defendant's claims to the contrary, no Barker prejudice has been shown.
Finally, even if prejudice could be associated with the defendant's claims of lost evidence that was lost due to the passage of time, his own pretrial conduct, failing to request a speedy trial, submitting serial continuance requests without ever protesting the granting of any continuance by the court, militates against any persuasive effect of this type of argument. This result is consistent with the most factually-relevant case upon which the defendant relies in support of his claim that the charges should be dismissed based upon constitutional grounds, State v. Nicholson, supra, 71 Conn.App. 585. Like the present case, the facts of Nicholson did not support a finding that the defendant was measurably prejudiced by the delay in commencement of the trial proceedings. Under those circumstances, "the defendant was not denied his constitutional right to a speedy trial." Id., 600. Upon balancing the elements of the fourth aspect of the Barker test, even in view of State v. Nicholson, the court is again constrained to conclude that "[t]he defendant's claim of prejudice is without merit." State v. Gaston, supra, 86 Conn.App. 228.
IV CONCLUSION
On the basis of consideration of the four Barker factors as discussed above, the court concludes that "the defendant was not denied his constitutional right to a speedy trial." State v. Gaston, supra, 86 Conn.App. 228.