State v. A. B.

• Decision Date: 01 October 2021
• Docket Number: SC 20471
• Citation: 266 A.3d 849,341 Conn. 47
• Parties: STATE of Connecticut v. A. B.
• Court: Connecticut Supreme Court

341 Conn. 47

266 A.3d 849

STATE of Connecticut

v.A. B.^*

SC 20471

Supreme Court of Connecticut.

Argued April 29, 2021

Officially released October 1, 2021^**

James M. Ralls, assistant state's attorney, with whom, on the brief, were Margaret E. Kelley, state's attorney, and Matthew Kalthoff, assistant state's attorney, for the appellant (state).

Andrew P. O'Shea, West Hartford, for the appellee (defendant).

Robinson, C. J., and McDonald, D'Auria, Kahn, Ecker and Keller, Js.

KELLER, J.

In State v. Crawford , 202 Conn. 443, 521 A.2d 1034 (1987), this court held that the issuance of an arrest warrant within the limitation period set forth in General Statutes (Rev. to 1983) § 54-193 (b) commences a prosecution for purposes of satisfying that statute of limitations, so long as the warrant is executed without unreasonable delay. Id., at 450–51, 521 A.2d 1034. The defendant, A. B., was charged with possession of child pornography in the first degree in violation of General Statutes (Rev. to 2009) § 53a-196d and was arrested pursuant to a warrant on or about March 16, 2018, nearly five years after the warrant was issued and more than three years after the applicable five year statute of limitations had expired. See General Statutes (Rev. to 2009) § 54-193 (b).¹ The defendant filed a motion to dismiss the information, arguing that, under Crawford , the delay in the warrant's execution was unreasonable and, therefore, that the prosecution was time barred. The state responded that, because the defendant had moved to California in 2011, § 54-193 (c)² tolled the limitation period within which the warrant could be executed. The trial court rejected the state's argument, concluding that the tolling provision of § 54-193 (c) was inapplicable once the warrant was issued within the limitation period set forth in § 54-193 (b) and that the nearly five year delay in the warrant's execution was unreasonable under Crawford . Accordingly, the trial court granted the defendant's motion to dismiss. On appeal,³ the state claims that the trial court incorrectly concluded that the statute of limitations was not tolled by § 54-193 (c). We disagree and, accordingly, affirm the decision of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of this appeal. On December 22, 2009, the Ansonia police executed a search warrant on the defendant's Ansonia residence. During the search, the police seized two of the defendant's computers and related electronics equipment. The defendant was aware that child pornography was the subject of the search and cooperated with the police by providing them with the passwords to his computers. Afterward, he voluntarily drove himself to police headquarters to be interviewed by Detective Gerald Tenney. During the interview, the defendant signed a sworn statement in which he admitted to possessing child pornography on his computers. Although the defendant was not arrested at that time, Detective Tenney informed him that an arrest warrant would be forthcoming as soon as a forensic examination of his computers was completed.

One and one-half years went by, during which the defendant did not hear back from Detective Tenney or anyone else from the Ansonia Police Department. On August 30, 2011, the defendant moved to Huntington Beach, California, where he lived until his arrest on or about March 16, 2018. While in California, the defendant resided at a single address, which was listed on his federal and state tax returns, on his California Department of Motor Vehicles records and on all of his bills. The defendant also maintained a Facebook account in his own name and posted accurate information about himself on that website. Between 2010 and 2013, Detective Tenney diligently checked on the status of the forensic laboratory's examination of the defendant's computers. On April 15, 2013, the forensic laboratory issued a report confirming the presence of child pornography on the computers. Shortly thereafter, Detective Tenney ascertained the defendant's California address through the LexisNexis law enforcement database and confirmed through the Huntington Beach police that the defendant still resided at that address.

A warrant for the defendant's arrest was issued on May 22, 2013, charging him with possession of child pornography in the first degree. Although Detective Tenney had requested that the warrant be extraditable, it was not authorized as such. Despite having the defendant's cell phone number, Detective Tenney never attempted to contact the defendant to inform him about the arrest warrant. Indeed, between 2009 and 2018, the Ansonia police never once attempted to communicate with the defendant about the status of his case. In September, 2016, Detective Tenney retired from the Ansonia Police Department. At the time of his retirement, no other officer had been assigned to work on the defendant's case.

In early 2018, a clerk of the Superior Court in the judicial district of Ansonia-Milford contacted Lieutenant Wayne Williams of the Ansonia Police Department to inquire about the status of the defendant's case and open arrest warrant. At that time, Lieutenant Williams requested and received permission from the state's attorney's office to extradite the defendant from California. On or about March 16, 2018, the defendant was arrested by the Huntington Beach police, posted bail, and was released with the understanding that he would organize his affairs and return to Connecticut to turn himself in to the Ansonia police, which he did on April 17, 2018. In light of the defendant's cooperation, no extradition proceedings were needed or conducted.

On December 18, 2018, the defendant filed a motion to dismiss the information, claiming that his prosecution was barred by the five year statute of limitations set forth in § 54-193 (b). The defendant argued that, although the arrest warrant was issued within the limitation period, the nearly five year delay in its execution was unreasonable under Crawford . The state opposed the motion, arguing that, because the defendant had moved to California prior to the issuance of the warrant, the defendant could not meet his burden of proving that he was available for arrest, as required by Crawford . Alternatively, the state argued, citing State v. Ward , 306 Conn. 698, 52 A.3d 591 (2012), that the statute of limitations was tolled under § 54-193 (c) because the defendant "fled" Connecticut in 2011.

An evidentiary hearing on the defendant's motion to dismiss was held over a period of two days, after which the trial court granted the defendant's motion. In so doing, the court rejected the state's contention that, even though the arrest warrant was issued within the limitation period, § 54-193 (c) had tolled the statute of limitations within which the police were required to execute the warrant because of the defendant's relocation to California in 2011. The trial court concluded that § 54-193 (c) applies only to toll the limitation period within which a prosecution may be brought, not the time period within which a defendant must be notified of a prosecution that has already been initiated. Accordingly, the court considered whether the nearly five year delay in the execution of the arrest warrant by the Ansonia Police Department was reasonable under Crawford . In considering this question, the court explained that, in State v. Swebilius , 325 Conn. 793, 159 A.3d 1099 (2017), this court held that, once a defendant who has raised a statute of limitations defense "presents evidence of his availability for arrest during the limitation period, the burden shifts to the state to present evidence of its due diligence in executing the warrant." Id., at 803, 159 A.3d 1099. The trial court further explained that, under our case law, a defendant can demonstrate his availability for arrest by presenting evidence "suggest[ing] that he was not elusive, was available, and was readily approachable" during the relevant time period. Applying this standard, the court concluded that the defendant had met his burden. Specifically, the court found that, "although the defendant was residing out of state, the state was aware of his whereabouts ... and could have easily executed the warrant within the [limitation] period or sooner than it did in 2018," that, "[a]fter the search of the defendant's home, the defendant voluntarily went to the police station and provided a sworn statement to the police in which he admitted to possessing child pornography," and that "[t]he police had the defendant's cell phone number and knew where he lived both in Connecticut and subsequently in California."

In light of its determination that the defendant had met his burden of demonstrating his availability for arrest, the trial court considered whether the state had met its burden of proving that the delay by the Ansonia police in executing the arrest warrant was not unreasonable. The trial court concluded that the state had not met its burden. Indeed, the court noted that the state had failed to present any evidence with respect to this issue. In light of the foregoing, the court concluded that the delay by the police in executing the warrant was unreasonable and granted the defendant's motion to dismiss.

Thereafter, the state filed a motion for reargument in which it claimed that the trial court incorrectly had determined that the defendant's motion to dismiss was controlled by Crawford rather than the tolling provision of § 54-193 (c), as interpreted by this court in Ward . The state further sought to address the significance of the Appellate Court's then recent decision in Roger B. v. Commissioner of Correction , 190 Conn. App. 817, 212 A.3d 693, cert. denied, 333 Conn. 929, 218 A.3d 70 (2019), and cert. denied, 333 Conn. 929, 218 A.3d 71 (2019),⁴ which the defendant had filed with the trial court as supplemental authority following the hearing on his motion to dismiss....