State v. Crawford

• Decision Date: 10 March 1987
• Citation: 521 A.2d 1034,202 Conn. 443
• Parties: , 71 A.L.R.4th 543 STATE of Connecticut v. Ronald L. CRAWFORD.
• Court: Connecticut Supreme Court

Page 1034

521 A.2d 1034

202 Conn. 443, 71 A.L.R.4th 543

STATE of Connecticut v. Ronald L. CRAWFORD.

Supreme Court of Connecticut.

Argued Dec. 2, 1986.

Decided March 10, 1987.

Dennis F. O'Toole, Deputy Asst. Public Defender, for appellant (defendant).

Harry Weller, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., James G. Clark and Raymond Thomas, Deputy Asst. State's Attys., and Glenn Kaas, Law Student intern, for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

The defendant was charged in the first count of a two count information with issuing a bad check in violation of General Statutes § 53a-128 ¹ and in the second count with larceny in the fourth degree in violation of General Statutes § 53a-125. ² Both offenses are misdemeanors, ³ and arose out of the same incident, which occurred on June 5, 1983, in East Windsor when the defendant issued a fraudulent check in payment of a moped at a local store. An arrest warrant was issued for the defendant on July 22, 1983. The warrant was not executed and the defendant was not arrested, however, until July 29, 1985, more than two years after the offenses were committed. The record indicates no reason for the delay in the defendant's arrest.

The defendant filed a motion to dismiss claiming that, because he had not been "prosecuted" within one year of the date of the commission of the offenses charged as required by General Statutes § 54-193(b), his prosecution was time-barred. ⁴ Neither the defendant nor the state presented testimony at the hearing on the motion. The trial court, relying on State v. Cordova, 38 Conn.Sup. 377, 448 A.2d 848 (1982), ⁵ denied the defendant's motion to dismiss. The defendant subsequently filed a conditional plea of nolo contendere under General Statutes § 54-94a ⁶ expressly reserving his right to appeal from the trial court's denial of his motion. The trial court accepted the plea of nolo contendere, entered a finding of guilty, imposed a sentence of one year suspended after nine months and a period of probation, and ordered restitution. ⁷

The only issue raised by this appeal is whether the issuance of the arrest warrant on July 22, 1983, within the period of limitation provided by General Statutes § 54-193(b), tolled the statute. ⁸ The defendant contends on appeal, as he did in the trial court, that he was not "prosecuted" as required by the statute until he was arrested by virtue of the warrant and an information filed in court on July 29, 1985, well beyond the period of limitation provided by § 54-193(b). The state argues, however, that the defendant was "prosecuted" for the purposes of the statute of limitations when a judicial officer, presented with an affidavit and a short form information, which incorporated an application for an arrest warrant and an arrest warrant, found probable cause and issued the arrest warrant on July 22, 1983, shortly after the crimes charged had been committed. We agree with the state and conclude that the issuance of the arrest warrant tolled the statute of limitations.

General Statutes § 54-193(b) provides in pertinent part: "No person may be prosecuted for any [misdemeanor] ... except within one year next after the offense has been committed." The statute, however, does not define "prosecuted" or contain any provision delineating at what stage of the prosecution the limitation period is tolled. The Appellate Session of the Superior Court in State v. Cordova, supra, the only authority in Connecticut construing this provision, analyzed the statute in the context of the policies underlying limitations statutes, and concluded that the issuance of the warrant tolls the statute of limitations.

Although the purpose of a statute of limitations is to ensure a timely commencement of prosecution, jurisdictions differ on what act will suffice to show such commencement. In jurisdictions where legislation requires the finding of an indictment or the filing of an information as the first step in a criminal case, the "prosecution" is deemed commenced by either of these acts, and the running of the statute of limitations is thereby tolled. 2 W. LaFave & J. Israel, Criminal Procedure § 18.5; see 1 F. Wharton, Criminal Law (14th Ed.) § 90. In the absence of such legislation, however, it is generally held that the prosecution is commenced, and the statute tolled, at the time a complaint is laid before a magistrate and a warrant of arrest is issued. State v. Chacon, 479 So.2d 229, 230 (Fla.App.1985); McMorris v. State, 277 Md. 62, 67-68, 355 A.2d 438 (1976); State v. Mars, 39 Md.App. 436, 438, 386 A.2d 1234 (1978); see Akers v. State, 370 So.2d 81, 83 (Fla.App.1979); State v. White, 76 Kan. 654, 92 P. 829, 830 (1907); 2 W. LaFave & J. Israel, supra; 21 Am.Jur.2d, Criminal Law § 230. The American Law Institute model penal code is in accord. It provides that "[a] prosecution is commenced either when an indictment is found [or an information filed] or when a warrant or other process is issued, provided that such warrant or process is executed without unreasonable delay." Model Penal Code (1985) § 1.06(5); see State v. Barnes, 66 Or.App. 896, 676 P.2d 344 (1984); Commonwealth v. Patterson, 236 Pa.Super. 131, 344 A.2d 710 (1975).

General Statutes § 54-193(b) does not make reference to the finding of an indictment or the filing of an information but provides only that a person must be "prosecuted" within a specified time. Further, neither the Practice Book nor our statutes contain provisions for the finding of an indictment ⁹ or the filing of an information prior to the arrest of an accused person. Cf. Practice Book § 972. ¹⁰ In this state, the initial step to commence a prosecution, when an arrest is to be made by virtue of a warrant, is the presentation of an application for a warrant, which is accompanied by an affidavit, by a prosecutorial official to a judicial authority. If the judicial authority finds that the accompanying affidavit shows probable cause to believe that an offense has been committed, and that the person complained against committed it, the judicial authority may issue an arrest warrant. General Statutes § 54-2a. ¹¹ When an arrest warrant has been issued, and the prosecutorial official has promptly delivered it to a proper officer for service, he has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him. ¹² When the prosecutorial authority has done everything possible within the period of limitation to evidence and effectuate an intent to prosecute, the statute of limitations is tolled. See State v. Hickman, 189 So.2d 254, 261-62 (Fla.App.1966). An accused should not be rewarded, absent evidence of a lack of due diligence on the part of the officer charged with executing the warrant, for managing to avoid apprehension to a point in time beyond the period of limitation.

We recognize, however, that some limit as to when an arrest warrant must be executed after its issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions, a primary purpose of statutes of limitations. United States v. Levine, 658 F.2d 113, 127 (3d Cir.1981); State v. Coleman, 202 Conn. 86, 91, 519 A.2d 1201 (1987); see United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Therefore, we adopt, what we think is the sensible approach of the model penal code, and conclude that, in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations of § 54-193(b), must be executed without unreasonable delay. Model Penal Code, supra. We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations.

The statute of limitations is, however, an affirmative defense. State v. Coleman, supra, 202 Conn. at 90, 519 A.2d 1201; State v. Littlejohn, 199 Conn. 631, 640, 508 A.2d 1376 (1986). Consequently, the burden was on the defendant to prove the elements of that defense by a preponderance of the evidence. State v. Coleman, supra; State v. Littlejohn, supra; see General Statutes § 53a-12(b); United States v. Karlin, 785 F.2d 90, 92 (3d Cir.1986). Since no testimony was taken on the defendant's motion to dismiss concerning the reason for the delay in the execution of the warrant in this case, he has failed to meet that burden. We cannot assume, nor could the trial court, that the warrant was not executed with due diligence. The warrant directed the officer serving it to arrest the body of the defendant and "forthwith" have him before the superior court. "It is ... presumed until the contrary appears that a public officer acting officially has done his duty." State v. Lenihan, 151 Conn. 552, 555, 200 A.2d 476 (1964). There was no evidence to the contrary.

The defendant argues that State v. Vitale, 190 Conn. 219, 460 A.2d 961 (1983), and State v. Falcon, 196 Conn. 557, 494 A.2d 1190 (1985), require a conclusion that the defendant was not "prosecuted" within the meaning of § 54-193(b) until the information was filed in court. We disagree. Both Vitale and Falcon are concerned with the issue of when an accused's sixth amendment right to counsel attaches in a criminal prosecution. State v. Falcon, supra, 562, 494 A.2d 1190; State v. Vitale, supra, 190...