State v. Freeman

• Docket Number: SC 20554
• Decision Date: 30 August 2022
• Citation: 344 Conn. 503,281 A.3d 397
• Parties: STATE of Connecticut v. Terry FREEMAN
• Court: Connecticut Supreme Court

344 Conn. 503

281 A.3d 397

STATE of Connecticut

v.Terry FREEMAN

SC 20554

Supreme Court of Connecticut.

Argued February 17, 2022

Officially Released August 30, 2022

James E. Mortimer, assigned counsel, for the appellant (defendant).

Thadius L. Bochain, deputy assistant state's attorney, with whom, on the brief, were Margaret E. Kelley, state's attorney, Matthew R. Kalthoff, assistant state's attorney, and Samantha L. Oden, former deputy assistant state's attorney, for the appellee (state).

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

ECKER, J.

The defendant, Terry Freeman, appeals from the judgment of the Appellate Court affirming his conviction of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), following the entry of a conditional plea of nolo contendere. The sole issue on appeal is whether the prosecution of the defendant was time barred by the five year statute of limitations set forth in General Statutes (Rev. to 2017) § 54-193 (b)¹ on the ground that the state failed to establish that the warrant for the defendant's arrest was executed without unreasonable delay. See State v. Swebilius, 325 Conn. 793, 802, 159 A.3d 1099 (2017) ; State v. Crawford , 202 Conn. 443, 451, 521 A.2d 1034 (1987). We conclude that the state failed to produce sufficient evidence to establish that the arrest warrant was executed with due diligence, and, accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court's opinion sets forth the following relevant facts, which we supplement with additional undisputed facts as necessary. "On November 5, 2018, Jeffrey Gabianelli, a detective with the West Haven Police Department, received a letter from the defendant containing information about an armed robbery that had occurred at the Wine Press Liquor Store in West Haven on November 29, 2013. The next day, Gabianelli visited the defendant at the Carl Robinson Correctional Institution in Enfield, where the defendant was incarcerated on unrelated charges. The defendant confessed to Gabianelli as to his involvement in the November 29, 2013 robbery. On November 9, 2018, Gabianelli prepared an arrest warrant. On November 15, 2018, a Superior Court judge signed the warrant. On November 19, 2018, John Laychak, a West Haven police officer, obtained the signed warrant and submitted a request that the Office of the State's Attorney prepare an application for a writ of habeas corpus to transport the defendant to the Superior Court in the judicial district of Ansonia-Milford for service of the arrest warrant. On November 21, 2018, the Office of the State's Attorney prepared the application for a writ of habeas corpus requesting that the defendant be transported to the court on December 6, 2018. On November 27, 2018, a prosecutor and a clerk of the court signed the writ of habeas corpus. On December 6, 2018, the defendant was transported to the Superior Court where he was served with the arrest warrant.

"Thereafter, the defendant filed a motion to dismiss, claiming that the prosecution was barred due to the lapse of the five year statute of limitations set forth in § 54-193 (b). The defendant argued that the statute of limitations had lapsed on November 29, 2018, five years after the robbery had occurred, and that the state had failed to proffer sufficient evidence to show that the delay in the execution of the arrest warrant until December 6, 2018, was reasonable." (Footnotes omitted.) State v. Freeman , 201 Conn. App. 555, 557–58, 242 A.3d 1059 (2020).

The trial court, Brown, J ., held an evidentiary hearing on the defendant's motion to dismiss. The prosecutor conceded that the defendant had met his burden of demonstrating that he "lived openly, was nonelusive, and was available for arrest throughout the relevant period of limitation" and, thus, that the burden shifted to the state to demonstrate that the warrant was executed without unreasonable delay. See State v. Swebilius , supra, 325 Conn. at 807, 159 A.3d 1099 ("[o]nce the defendant has presented evidence of his availability for arrest, it is reasonable and proper that the burden should then shift to the state to explain why, notwithstanding the defendant's availability during the statutory period, the delay in his arrest was reasonable"). To fulfill that burden, the state relied on a written stipulation of facts agreed on by the parties, which set forth the relevant chronology of events described previously in this opinion. The state adduced no additional evidence, aside from the arrest warrant application issued on November 15, 2018, and the writ of habeas corpus dated November 21, 2018.

The trial court asked the prosecutor to explain the delay between the issuance of the arrest warrant on November 15, and its execution on December 6. The prosecutor explained that the court liaison officer did not pick up the signed warrant until Monday, November 19, and that he had no "information as to why [the warrant] wasn't picked up on [that] Friday [i.e., November 16]," but "the court liaison officer would ... pick up the warrant [only] during the business day, so that would account, at least in part, for that four day gap ...." The prosecutor did not offer an explanation for the two day gap between November 19, and November 21, the date on which the state prepared the application for the writ of habeas corpus. Regarding the six day gap between November 21, and November 27, the date on which the writ of habeas corpus was signed, the prosecutor explained that Thursday, November 22, was the Thanksgiving holiday and that Friday, November 23, was "a relatively light day ...." As for the nine day gap between November 27, and December 6, the date on which the defendant was transported and the warrant was executed, the prosecutor explained that the transport was arranged "as a matter of course" in light of the various "factors that play in effectuating the transport of an inmate to [the] court," such as the availability of staff, the maximum number of inmates that may be transported on a given day, and the necessary coordination among the relevant state agencies. The prosecutor "could offer no explanation as to why the defendant was not transported to court for service of the warrant on or before November 29, 2018, except to say that a one week delay between the signing of a habeas writ and the transport of a defendant was not unusual."

The trial court denied the defendant's motion to dismiss, finding "that the state, in fact, made at least some effort to execute the warrant on or before November 29, 2018. The state acted reasonably and diligently to follow up on the defendant's letter, to obtain his confession, and to prepare an arrest warrant for court review and action. Once the warrant was issued, the state acted reasonably and made at least some effort to have the defendant brought to court for execution of the warrant." Although the statute of limitations expired seven days before the warrant was executed, the trial court found "at least some evidence explaining why the delay was reasonable. The writ had to be prepared and approved before the defendant could be ordered transported to court." Significantly, the court noted that "[t]he state should have been more mindful that, as of November 15, 2018, [the state] ... had [only] fourteen more days to get the warrant executed to be within the five year limitation period" but determined that, because the state made some "efforts to meet the November 29, 2018 [expiration] date," the delay in the execution of the warrant was reasonable.

The defendant thereafter entered a conditional plea of nolo contendere to the charge of robbery in the first degree. The trial court sentenced the defendant to one year of imprisonment, consecutive to his current sentence.

The defendant appealed from the trial court's judgment to the Appellate Court, claiming that the trial court had improperly denied his motion to dismiss because (1) it misinterpreted and misapplied the legal standard set forth in State v. Crawford , supra, 202 Conn. 443, 521 A.2d 1034, and State v. Swebilius, supra, 325 Conn. 793, 159 A.3d 1099, and (2) there was insufficient evidence to establish that the delay in the service of the arrest warrant after the expiration of the statute of limitations was reasonable. See State v. Freeman , supra, 201 Conn. App. at 559, 242 A.3d 1059. The Appellate Court rejected the defendant's first claim, explaining that Swebilius neither "qualif[ies] the efforts the state must show to satisfy its burden nor explain[s] the degree of effort necessary." Id., at 563, 242 A.3d 1059. Instead, "the state must prove that any delay in serving the warrant beyond the statute of limitations was reasonable. What efforts the state made to accomplish service and the reasons why service was not accomplished before the statute of limitations expired are necessary parts of the court's reasonableness analysis." Id., at 564, 242 A.3d 1059. The Appellate Court concluded that "the [trial] court applied the correct legal test as set forth by [this court] in Swebilius and by [the Appellate Court] in [other cases]." Id., at 566, 242 A.3d 1059.

Regarding the sufficiency of the evidence produced by the state, the Appellate Court determined that the state had fulfilled its burden of demonstrating that it made reasonable efforts to obtain and execute the arrest warrant, reasoning that, "[f]ollowing the defendant's confession to [the detective], the state made continuous efforts to obtain a warrant and to facilitate the appropriate transportation of the defendant to the Superior Court for the execution of that warrant; efforts that were all made before the statute of limitations expired." Id. Although the defendant was not transported and served with the warrant until seven days after the expiration of the statute of limitations, the Appellate Court opined that "the nine day delay from the signing of the habeas writ to the...