State v. Brown

• Decision Date: 15 March 1977
• Citation: 375 A.2d 1024,172 Conn. 531
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Larry Eugene BROWN.

Page 1024

375 A.2d 1024

172 Conn. 531

STATE of Connecticut v. Larry Eugene BROWN.

Supreme Court of Connecticut.

Argued Nov. 16, 1976.

Decided March 15, 1977.

Joseph M. Brophy, Sp. Public Defender, for appellant (defendant).

Thomas E. Minogue, Jr., Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Richard F. Jacobson, Asst. State's Atty., for appellee (state).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LOISELLE, Associate Justice.

After a jury trial the defendant was found guilty of robbery in the second degree. From the judgment entered on the verdict, he appealed to this court.

The defendant claims that the court erred in admitting certain evidence and in portions of the charge to the jury. His brief contains none of the material required by Practice Book § 631A to support such a claim; he has printed neither the rulings on evidence, his objections or exceptions, nor the charges to the jury, thus the claims will not be considered. He also claims that the trial court erred in denying his motion to dismiss for failure of the state to present a prima facie case. Denial of such a motion is not properly assignable as error. State v. Ralls, 167 Conn. 408, 415 n.2, 356 A.2d 147; State v. Dubina, 164 Conn. 95, 101, 318 A.2d 95; Maltbie, Conn.App.Proc. § 212.

The defendant claims that he was denied his right to a speedy trial, which is guaranteed by the sixth amendment to the United States constitution and by article first, § 8, of the Connecticut constitution. The state's brief, which is not contradicted by the defendant, gives the following chronology:

                November 8, 1974   Bindover to Superior Court
                December 3, 1974   Plea of not guilty
                December 6, 1974   Motions for bill of particulars
                                   and discovery filed
                December 20, 1974  Compliance with earlier motions
                                   by the state
                January 24,1975    Request for appointment of
                                   a special public defender
                                   filed.
                January 31, 1975   Motion denied.
                February 26, 1975  Motion for speedy trial filed.
                April 30, 1975     Oral motion for a special
                                   public defender granted
                                   and Attorney Joseph M.
                                   Brophy appointed.
                May 6, 1975 1  Motion for speedy trial denied
                                   without prejudice.
                June 25, 1975      Motion to dismiss denied
                                   and trial ordered for July.
                August 7, 1975     Trial commences.
                

Assuming that the defendant was arrested on the date of the offense charged, nine months and eight days elapsed between the arrest and the trial.

The Supreme Court's opinion in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, established that the sixth amendment guarantee of the right to a speedy trial is "fundamental" and is imposed by the fourteenth amendment on the states. In Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183, the Supreme Court agreed with the state that a delay of about three years before trial of one charged with murder who was already serving a prison term was arguably excusable. The state court had ruled that an affirmative demonstration of prejudice to the defense at trial was necessary to prove a denial of the constitutional right to a speedy trial. The Supreme Court remanded the case for the state court to determine if there was a violation of the accused's fundamental rights under the sixth amendment under the standards mandated by Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26, and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.

In Smith v. Hooey, supra, the defendant was indicted by a state court while a prisoner in a federal penitentiary in another state. Thereafter for the next six years by letters and "motions" he continually sought trial. When his mandamus action was dismissed, certiorari was granted by the Supreme Court, which stated (393 U.S. p. 378, 89 S.Ct. p. 577) that the constitutional guarantee protects at least three basic demands: " '(1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation and (3) to limit the possibilities that long delay will impair the ability of an accused to defend himself.' United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627." The court held that the state court had a constitutional duty to make an effort to bring the accused to trial and remanded the case for further proceedings.

In Dickey v. Florida, supra, a state court secured an arrest warrant charging the defendant with robbery after he was taken into custody and imprisoned by federal authorities. He unsuccessfully made repeated requests to the state court for trial. After more than seven years had passed since the robbery, an information was filed charging him with robbery. After conviction, the Supreme Court vacated the judgment. It stated (398 U.S. p. 37, 90 S.Ct. p. 1568) that "(t)he right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality in the need to have charges promptly exposed." It noted (p. 38, 90 S.Ct. p. 1569) that the delay in that case was "exclusively for the convenience of the State", that there was "abundant evidence of actual prejudice to (the defendant) in the death of two potential witnesses, unavailability of another, and the loss of police records." The court ordered the judgment vacated and the proceedings dismissed.

In Barker v. Wingo, supra, the defendant was not brought to trial for murder until more than five years after his arrest. He had been confined for ten months before he was released on bail. The prosecution obtained numerous continuances for the purpose of trying the defendant's alleged accomplice so that his testimony, if conviction resulted, would be available at the defendant's trial. The accomplice was tried six times. After the passage of three and one-half years, the defendant made his claim for a speedy trial. The court stated that a defendant's constitutional right to a speedy trial is a vaguer concept than other procedural rights and its denial cannot be established by any inflexible rule. It set up a balancing test in which at least four factors should be considered: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id., 407 U.S. 530, 92 S.Ct. 2192.

The cases recognize that an accused's sixth amendment right to a speedy trial is necessarily relative. It is constitutionally permissible that there be some delay in prosecuting a criminal case, but the delay cannot be inordinate, deliberate or oppressive. Whether the delay involved in completing a particular criminal prosecution violates the accused's right to a speedy trial depends on the circumstances, taking into consideration the factors which Moore v. Arizona mandates. See annot., 21 L.Ed.2d 905.

The defendant in the present case was incarcerated for nine months and eight days before his trial. Although nine months is not an overwhelming period of time, it is of such length that there is a necessity for inquiry into the other factors that go into the balance. State v. L'Heureux, 166 Conn. 312, 319, 348 A.2d 578. The state, in its brief, refers to the crowded criminal dockets. In Barker v. Wingo, supra, 407 U.S. 531, 92 S.Ct. 2182, it was stated that a neutral reason such as overcrowded dockets should be weighed less heavily than a deliberate attempt to delay on the part of the state but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the state rather than with the defendant. In the present case, the binding over process and plea in the Superior Court took about a month. Another month was involved with motions by the defendant. Evidently the defendant was unhappy with his counsel, for in January he requested another counsel. In April, after his second request, another counsel was appointed. In June, the trial was ordered for July. The trial did commence on August 7, about three months after the appointment of his present counsel.

As to the defendant's assertion of the right, the record reveals that a motion for a speedy trial was filed on February 26, and it appears that this motion was denied May 6 without prejudice. On May 29 the defendant moved for a dismissal of the information and it was denied at the same time that a trial was ordered for July. Whether the motions were made purely pro forma or were made with force and deliberation is not shown by the record. See Barker v. Wingo, supra, 529, 92 S.Ct. 2182. At any rate, the defendant made two motions to the court asserting the right to a speedy trial and did not acquiesce in the delay.

The final factor to be considered is that of prejudice. In Barker v. Wingo, supra, 532, 92 S.Ct. 2182, the court reiterated the matters that it had previously outlined as basic demands to protect constitutional guarantees. Smith v. Hooey, supra. Other than the time span, there is no evidence presented in this appeal to indicate any prejudice to the defendant save that of incarceration nor does the defendant claim his defense was impaired. In State v. L'Heureux, supra, this court held that a nine-month delay did not amount to a denial of a speedy trial absent prejudice in preparing the defense. In that case, however, the defendant was incarcerated pending the disposition of three counts and his motion for a speedy trial was only aimed at one count.

In balancing the factors, it is clear that the length of delay between arrest and trial was substantial. The defendant also made two motions asserting the right to a speedy trial. The countervailing factors are that a strong excuse exists for at least one month's delay in consideration of the defendant's motions, and some delay is permissible under ordinary circumstances for...