State v. Almeda, 13559

• Citation: 560 A.2d 389,211 Conn. 441
• Decision Date: 13 June 1989
• Docket Number: No. 13559,13559
• Parties: STATE of Connecticut v. John A. ALMEDA.
• Court: Supreme Court of Connecticut

Page 389

560 A.2d 389

211 Conn. 441

STATE of Connecticut v. John A. ALMEDA.

No. 13559.

Supreme Court of Connecticut.

Argued March 7, 1989.

Decided June 13, 1989.

John R. Williams, New Haven, for appellant (defendant).

Kevin T. Kane, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, Sr., State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

CALLAHAN, Associate Justice.

The defendant was charged in an indictment with the murder of Ronald Wynn on September 19, 1979, in Groton, in violation of General Statutes § 53a-54a(a). ¹ As a result of the same incident in which Ronald Wynn was killed, the defendant was also charged in an information with the attempted murder of Ronald's brother, Ricky Wynn, by the use of a firearm in violation of General Statutes §§ 53a-49(a)(2) ² and 53a-54a. In 1981, a jury found the defendant guilty of the murder of Ronald Wynn and guilty of attempted manslaughter in the first degree in the case of Ricky Wynn. ³ After the verdicts were returned, the defendant filed motions in arrest of judgment and for a new trial, claiming, first, that there was no such crime as attempted manslaughter in the first degree and, second, that a juror who had failed to disclose material information during the voir dire was seated on the trial jury. The court agreed with the defendant in both instances and acting on his motions arrested judgment on the guilty verdict of attempted manslaughter in the first degree, set aside the murder verdict and ordered a new trial.

On the state's appeal of the trial court's action to this court, we held that "attempted manslaughter in violation of § 53a-55(a)(1) ⁴ is not a crime cognizable under our law." State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983) (Almeda I ). At the same time we remanded the case to the trial court for a determination of whether actual juror bias had been demonstrated. Id. at 314, 455 A.2d 1326. After a hearing on that question the trial court articulated a finding of actual juror bias. On the return of the case to this court we concluded that the trial court had not erred by vacating the murder conviction and ordering a new trial as to both the indictment and the information. State v. Almeda, 196 Conn. 507, 508-509, 493 A.2d 890 (1985) (Almeda II ).

At the defendant's second trial the state proceeded on the original murder indictment in the case involving Ronald Wynn's death but in July, 1985, filed a substitute information charging the defendant with assault in the first degree in violation of § 53a-59(a)(1) ⁵ rather than attempted murder or manslaughter in the case of Ricky Wynn. After a trial that commenced in December, 1987, a jury found the defendant guilty of manslaughter in the first degree in violation of § 53a-55(a)(1) as a lesser included offense of murder as charged in the indictment and also found him guilty of assault in the first degree as charged in the substitute information. The trial court, thereafter sentenced the defendant to consecutive terms of not less than ten nor more than twenty years on the manslaughter conviction and not less than seven and one-half years nor more than fifteen years on the assault conviction. The defendant has appealed, claiming that: (1) prosecution on the charge of assault in the first degree was barred both by the statute of limitations and by the constitutional prohibition against double jeopardy; (2) the state failed to prove that Ricky Wynn suffered "serious physical injury" within the meaning of § 53a-59(a)(1); and (3) that the trial court erred by admitting the written statement of a witness for substantive purposes. We find no error.

A brief recitation of the facts that led to the defendant's convictions is necessary in order to place his claims in proper perspective. In September, 1979, the defendant's girlfriend and Ronald and Ricky Wynn were employed at the Electric Boat Company in Groton. Ronald Wynn and the defendant had been friends but shortly before Ronald's death enmity had arisen between them over remarks allegedly made by Ronald to the defendant's girlfriend. As a result, Ronald Wynn and the defendant had an unpleasant encounter on the afternoon of September 18, 1979, when they met at the New Haven Railroad Station as Ronald and Ricky Wynn were boarding a commuter bus to Electric Boat where they worked the 5 p.m. to 1:30 a.m. shift. The defendant did not board the bus but later picked up Ronald Wynn's wife in his automobile at her home and proceeded to Groton, ostensibly to have Ronald's wife pour oil on the troubled waters that separated Ronald Wynn from the defendant and his girlfriend.

The situation deteriorated while the defendant and Ronald's wife were in Groton, however, and events culminated in an altercation between the defendant and Ronald outside the main gate at Electric Boat when Ronald's shift ended. After a physical scuffle in which Ronald apparently bested the defendant, an argument ensued which ended when the defendant shot and killed Ronald Wynn with a single shot from a .22 caliber pistol that he had purchased on the street in New Haven the previous day. Immediately after shooting Ronald Wynn, the defendant twice shot Ricky Wynn as he ran to his brother's aid. One bullet struck Ricky at the left eyebrow and lodged in front of his left ear. The other entered his neck and shattered on impact with his cervical spine. The defendant was arrested almost immediately thereafter as he was about to leave the area in his automobile.

I

The defendant first claims that his prosecution for assault in the first degree in violation of § 53a-59(a)(1) arising from the shooting of Ricky Wynn was barred by the statute of limitations, General Statutes § 54-193(b), ⁶ because the substitute information charging him with that crime was not filed until July 10, 1985, more than five years after the shooting on September 19, 1979. The state maintains, however, that the original information charging the defendant with attempted murder tolled the statute of limitations and permitted prosecution on the substitute information.

The statute of limitations, General Statutes § 54-193(b) provides in pertinent part that: "No person may be prosecuted for any offense ... 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." At the core of the limitations doctrine is notice to the defendant. United States v. Gengo, 808 F.2d 1, 3 (2d Cir.1986). Its principal purpose is to ensure "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...." United States v. O'Neill, 463 F.Supp. 1205, 1208 (E.D.Pa.1979); United States v. Gengo, supra; United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976); United States v. Panebianco, 543 F.2d 447, 454 n. 6 (2d Cir.1976), cert. denied sub nom. Anatala v. United States, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977); United States v. Lytle, 677 F.Supp. 1370, 1376 (N.D.Ill.1988). If, therefore, the facts underlying a superseding information substituting a different charge in a continuing prosecution are substantially similar to the facts underlying a timely filed information, the main purpose of the statute of limitations has been fulfilled, i.e., timely notice to the defendant of the factual allegations against which he will be required to defend. United States v. Grady, supra; United States v. Panebianco, supra, 454; United States v. Lytle, supra; United States v. O'Neill, supra, 1207; People v. Gallo, 54 Ill.2d 343, 349-50, 297 N.E.2d 569 (1973). If that aim is accomplished, a previously filed information may toll the statute of limitations. United States v. Grady, supra; State v. Saraceno, 15 Conn.App. 222, 239-40, 545 A.2d 1116 (1988). To ascertain if an information tolls the statute to allow the filing of a substitute information after the limitations period has passed it must be determined whether the substitute information "broaden[s] or substantially amend[s] the charges made in the first [information]." United States v. Grady, supra, 602; United States v. Gengo, supra; United States v. Friedman, 649 F.2d 199, 203 (3d Cir.1981); United States v. Panebianco, supra, 454; United States v. Lytle, supra; State v. Saraceno, supra. If it does not, then the defendant has not been called upon to address any factual allegations by the state beyond those already charged and the substitute information is not time barred. United States v. Elliott, 849 F.2d 554, 561 (11th Cir.1988); United States v. Gerstner, 548 F.Supp. 348, 349 (S.D.N.Y.1982); United States v. O'Neill, supra, 1207; State v. Saraceno, supra, 15 Conn.App. at 240, 545 A.2d 1116.

Here the factual allegations underlying the substitute information charging the defendant with assault in the first degree in the shooting of Ricky Wynn, were identical to the facts underlying the original information charging the defendant with the attempted murder of Ricky Wynn. The defendant therefore was not called upon, at his trial on the substitute information, to answer for any activities that he had not been required to defend against in his first trial on the original information. Moreover, in our decision finding no error in the trial court's arrest of judgment on the attempted manslaughter conviction, which was published within the period of limitation, we explicitly indicated that on a second trial the defendant could be prosecuted on the charge of assault in the first degree for the shooting of Ricky Wynn. Almeda I, supra, 189 Conn. at 309-10, 455 A.2d 1326.

Under the circumstances of this case, therefore, we conclude that the substitute information on the charge of assault in the first degree was not time barred so long as the defendant was not significantly prejudiced...