Opinion
No. N 07-CR 05-0231275
October 24, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
This Memorandum of Decision addresses the issues raised through the Defendant's Motion to Dismiss, dated October 3, 2007, and the state's oral argument in opposition thereto. On October 10, 2007, after hearing and consideration of the parties' contentions, the court placed a summary of the basis for its legal and factual conclusions on the record, finding the issues in favor of the state. Accordingly, the defendant's motion to dismiss was DENIED. This written memorandum is submitted to explicate the basis for the court's ruling, pursuant to the parties' agreement and consistent with Practice Book § 64-1.
I. PROCEDURAL HISTORY
Through an original information dated October 17, 2005, the defendant was charged with public indecency in violation of General Statutes § 53a-186(a)(2). Those charges were based on events that occurred at a location known as Healthworks, alleged to be a public place in Wallingford, CT. There, on or about September 15, 2005, the defendant was reported to have performed a lewd exposure of his body with intent to arouse or to satisfy his sexual desire. The defendant was arrested by warrant on October 31, 2005; he was arraigned on November 10, 2005. He submitted his plea of not guilty to the public indecency charge and elected trial to a jury.
Section 53a-186(a)(2) provides as follows: "A person is guilty of public indecency when he performs any of the following acts in a public place: a lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person . . . For the purposes of this section, `public place' means any place where the conduct may reasonably be expected to be viewed by others.
Jury selection was scheduled to commence on September 27, 2007. On that date, prior to commencing the voir dire process, the state filed a long form information. Through this information, the state maintained the extant public indecency charge and further alleged that on the same date and at the same place the defendant engaged in disorderly conduct in violation of § 53a-182(a)(2). The defendant made an oral objection to the inclusion of the disorderly conduct charge upon the long form information but cited no legal authority in support of his opposition. The defendant neither requested a continuance, demonstrated that trial would be unduly delayed, nor established that his substantive rights would be in any way prejudiced through the addition of the disorderly conduct charge, which asserted no new facts. Accordingly, the court overruled the defendant's objection based on the principles enunciated in Practice Book § 36-17.
Section 53a-182(a)(2) provides as follows: "A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person . . . by offensive or disorderly conduct, annoys or interferes with another person . . ."
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."
Jury selection began on September 27, and continued on September 30, October 3, and October 5, 2007. On October 3, 2007, prior to the completion of jury selection, the state filed an amended long form information, correcting an acknowledged scrivener's regarding the date of the alleged criminal offenses. Also on October 3, 2007, the defendant filed his motion to dismiss the disorderly conduct count, arguing "that the imposition of the charge nearly two (2) years after the alleged criminal activity is barred by the Statute of Limitations." Motion to Dismiss dated October 3, 2007. The motion to dismiss was unaccompanied by reference to specific statutory or common-law authority. Other than a generic reference to "the Statute of Limitations," the defendant's motion articulated no particular claims of prejudice or substantive harm.
II. RESOLUTION OF THE DEFENDANT'S CLAIMS
At oral argument on October 9, 2007, the defendant identified his reliance upon the last sentence of General Statutes § 54-193(b) as the basis for his motion to dismiss. The defendant argues that, as a matter of law, because the incident at issue is alleged to have occurred in mid-September 2005, and as the long form information was filed more than two years after that date, the state is barred from prosecuting the disorderly conduct charge.
Section § 54-193(b): "No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d, except within one year next after the offense has been committed."
At oral argument, the defendant also sought protection through the language of § 54-193(d), which provides: "When any suit, indictment, information or complaint for any crime may be brought within any other time than is limited by this section, it shall be brought within such time." The defendant's assumed contention is that § 54-193(d) mandates the state's addition of the Disorderly Conduct to the charging instrument prior to October 3, 2007. Such a construction of this statutory subsection is in direct conflict with the provisions of Practice Book § 36-17, which enables the state to amend its information, add counts or file a substitute information prior to trial. See footnote 3. In the absence of appellate authority, the court declines to accept the defendant's proposed disciplinary use of this legislation. Instead, the court relies upon the construction of § 54-193(b) promoted by the Appellate Court in State v. Jennings, 101 Conn.App. 810, 928 A.2d 541 (2007), discussed herein.
This court's analysis and resolution of the defendant's claims are guided by the cogent discussion of like issues most recently set forth in State v. Jennings, 101 Conn.App. 810, 928 A.2d 541 (2007). In that matter, the Appellate Court was similarly "called upon to decide . . . whether a subsequent information is barred by the statute of limitations, where the essential facts on which both the original information and the later information . . . remain the essential facts." Id., 811. That opinion affirmed the trial court's finding of guilty upon the defendant's nolo contendere plea to the charge of breach of peace in the second degree. State v. Jennings confirms the principle that when properly executed, as in the present case, the state may exercise its broad authority to amend informations, so long as thereby a defendant is not exposed to charges that have the potential to unlawfully duplicate any sentence that may be imposed. Id., 820.
While the lessons of State v. Jennings are applicable, the facts of CT Page 17808 Jennings are far more complex procedurally than those involving the present defendant. Here, only one count was added to the existing single-count information prior to the commencement of trial, as contemplated by Practice Book § 36-17. In Jennings, the defendant was initially charged with one count of stalking in the second degree, based on events alleged to have occurred on or about September 24, 2004; he was arrested on October 2, 2004. State v. Jennings, supra, 101 Conn. 810. Starting in the spring of 2006, in response to the defendant's motion for a bill of particulars, the state filed a series of long form informations, newly charging breach of peace and presenting additional stalking charges against Jennings. Id., 812, 812-15. In Jennings, the new informations did not always specify any general or particular date upon which those newly asserted charges were alleged to have occurred. Id., 813. The defendant filed a motion to dismiss the new counts, arguing that the statute of limitations barred the state from pursuing any charge except the original stalking count presented in 2004. Id. When the trial court denied the defendant's motion, he submitted a conditional plea of nolo contendere and brought his appeal. Id., 814-15.
The Appellate Court set forth in graphic form a compilation of the dates on which the state filed its various long form informations. See in State v. Jennings, 101 Conn.App. 810, 814 n. 8, 928 A.2d 541 (2007).
In addressing the statute of limitations claims, the Jennings court "first review[ed] the rules of practice and relevant case law that enunciate the broad authority of a prosecutor to make substantive amendments to an information before the start of trial," specifically referencing Practice Book § 36-17. The Jennings court remained "cognizant, however, that the broad authority of a prosecutor to amend an information prior to trial is tempered by the applicable statute of limitations. Connecticut statutory provisions that limit when criminal prosecutions may be brought in the state are found in Chapter 966 of our General Statutes. For misdemeanors, like stalking in the second degree in violation of § 53a-181d, General Statutes § 54-193(b) provides that no person may be prosecuted except `within one year next after the offense has been committed.' A statute of limitations protects a defendant from stale prosecutions; State v. Kruelski, 41 Conn.App. 476, 479, 677 A.2d 951, cert. denied, 238 Conn. 903, 677 A.2d 1376 (1996); and `[ensures] that a defendant receives notice, within a prescribed time, of the acts with which he is charged, so that he and his lawyers can assemble the relevant evidence [to prepare a defense] before documents are lost [and] memor[ies] fade . . .' (Internal quotations marks omitted.) State v. Almeda, [ 211 Conn. 441, 446, 560 A.2d 389 (1989)]." (Footnote omitted.) State v. Jennings, supra, 101 Conn.App. 817-18.
As well, through reference to State v. Ramos, 176 Conn. 275, 407 A.2d 952 (1972), and State v. Bergin, 214 Conn. 657, 674, 574 A.2d 164 (1990), Jennings reminds us that the use of terms such as "on or about" in the context of a charging document are sufficient to provide a defendant with notice of the date of the crimes that are subject to prosecution. State v. Jennings, supra, 101 Conn.App. 816.
"`The issuance of an arrest warrant tolls the running of the statute of limitations, provided that it is executed without unreasonable delay and with due diligence. See, e.g., State v. Ali, 233 Conn. 403, 412, 416, 660 A.2d 337 (1995); State v. Crawford, 202 Conn. 443, 450-51, 521 A.2d 1034 (1987). When, however, the state files an amended or substitute information after the limitations period has passed, the first information will toll the statute if the amended or substitute information does not broaden or substantially amend the charges made in the first information. See United States v. Grady, 544 E.2d 598, 601-02 (2d Cir. 1976); State v. Almeda, supra, 211 Conn. at 447-48, 560 A.2d 389 (prosecution on substitute information charging assault in first degree was not time barred where factual allegations were identical to those underlying original information charging attempted murder); State v. Saraceno, 15 Conn.App. 222, 238-40, 545 A.2d 1116, cert. denied, 209 Conn. 823-24, 552 A.2d 431 (1988). Although notice is the `touchstone' of the analysis in determining whether an amended or substitute information substantially broadens or amends the original charges; United States v. Gengo, 808 F.2d 1, 3 (2d Cir. 1986); some factors to assist in this determination are `whether the additional pleadings allege violations of a different statute, contain different elements, rely on different evidence, or expose the defendant to a potentially greater sentence.' United States v. Salmonese, 352 F.3d 608, 622 (2d Cir. 2003)." State v. Jennings, supra, 101 Conn. 818-19.
As in Jennings, the original information in the present case, charging the defendant was charged with public indecency, "served to prosecute the defendant within one year of the date of the commission of the charged offense, as required by § 54a-193(b). Under State v. Crawford, supra, 202 Conn. at 443, 447, 521 A.2d 1034, the arrest warrant and the [October 17, 2005] information tolled the statute of limitations. [This] tolling of the statute of limitations, therefore, permitted the state to file subsequent amendments to the [October 17, 2005] information, even when those amendments were filed after the expiration of the limitations period." State v. Jennings, supra, 101 Conn. 819.
Notwithstanding the vigor of the arguments raised by the present defendant, in the absence of authority to the contrary, the court finds that the general principles of pleading enunciated in State v. Jennings fully permit the state to have added, prior to the commencement of trial, the charge of disorderly conduct to the original charge of public indecency. Neither the September 28, 2007 long form information nor the October 3, 2007 amended long form information here "substantially broadened or amended the charges levied against "the present defendant. Id., 819-20. Significantly, the date and place at which the disorderly conduct charge are based are identical to those underlying original information charging indecent exposure. See CT Page 17810 State v. Almeda, supra, 211 Conn. at 447-48, 560 A.2d 389, cited in State v. Jennings, supra, 101 Conn. 818. The defendant cannot reasonably claim to have lacked notice of the acts, or of the legal effect of the acts, he is alleged to have performed while at Healthworks in September of 2005. State v. Jennings, supra, 101 Conn.App. 819, citing United States v. Gengo, supra, 808 F.2d 3. While the 2007 informations allege violation of § 53a-182(a)(2) in addition to violation of § 53a-196(a)(2) as originally charged, and while the two counts present slightly different elements, both charges rely on the same evidence. The two counts thus expose the defendant to a potentially greater sentence not because of duplicative charging, which is prohibited, but because of our statutory scheme that contemplates and enables the prosecution of separate and distinct crimes arising from the same set of facts. See State v. Jennings, supra, 101 Conn.App. 819, citing United States v. Salmonese, supra, 352 F.3d 608.
In Jennings, the Appellate Court found that the state's repeated efforts at charging the defendant, through informations sometimes setting forth inadequate factual bases, functioned to expose the accused to "two counts of stalking [that] would double the possible maximum penalty" for what was effectively a single crime based on a single set of facts. State v. Jennings, supra, 101 Conn.App. 820. Thus, in Jennings, "the addition of a second count impermissibly would broaden the charges against the defendant by exposing him to a potentially greater sentence." (External citations omitted.) Id. To avoid duplication of identical charges, State v. Jennings concluded that one of the duplicate stalking counts was time-barred and thus properly subject to dismissal. Id.
However, and applicable to the present prosecution, the Jennings court clearly affirmed the state's authority to amend its information by presenting an additional but not duplicative claim of criminal conduct, even when based on like facts, so long as the original arrest warrant was timely served, a fact that has not here been contested. Thus, in State v. Jennings, notwithstanding the dismissal of one duplicative count of stalking in the second degree, the Appellate Court emphasized that the original "arrest warrant and short form information still served to toll the running of the statute of limitations as to one [other] count of stalking in the second degree, permitting the subsequent amendments after the limitations period had lapsed," including addition of the breach of peace charge. (Emphasis added.) Id., 821.
Consistent with the applicable legal principles cited above, and consistent with the lessons of State v. Jennings, this court concludes that the October 17, 2005 arrest warrant and short form information served at that time to toll the running of the statute of limitations set forth in § 54-193. Id. Thus, as contemplated by Practice Book § 36-17, the state's addition of the charge of disorderly conduct is not time-barred in the present prosecution. Id., 820.
III. CONCLUSION
As in State v. Jennings, through the submission of the original information, "[t]he primary purpose of the statute of limitations, ensuring that the defendant receives notice, was achieved in the present case." State v. Jennings, supra, 101 Conn.App. 822. In adding the charge of disorderly conduct through its long form informations, the state did not alter the factual basis for its claims, improperly substantially broaden or amend the charges, nor duplicate accusation of a crime so as to unlawfully expose the defendant to an impermissibly doubled sentence. Id. In the absence of those events in the present case, the defendant's motion to dismiss must be DENIED.
BY THE COURT,