State v. Gaston

• Decision Date: 28 January 1986
• Citation: 198 Conn. 435,503 A.2d 594
• Parties: STATE of Connecticut v. Andre GASTON.
• Court: Connecticut Supreme Court

Page 594

503 A.2d 594

198 Conn. 435

STATE of Connecticut v. Andre GASTON.

Supreme Court of Connecticut.

Argued Nov. 7, 1985.

Decided Jan. 28, 1986.

Louis I. Parley, New Haven, for appellant (defendant).

Susann E. Gill, Deputy Asst. State's Atty., with whom, on the brief, were John Bailey, State's Atty., Richard Schatz and Carl Schuman, Asst. State's Attys., and David M.S. Shaiken, legal intern, for appellee (state).

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

DANNEHY, Associate Justice.

A jury found the defendant guilty of felony murder in violation of General Statutes § 53a-54c. His sole claim on appeal is that he was denied his constitutional right to a speedy trial. We find no error.

The following facts are relevant to the defendant's claim. On September 8, 1979, Ralph Blue was shot to death at the front door of his Hartford apartment. The defendant and two accomplices, Matthew McCoy and Thomas Browdy, were soon implicated in Blue's murder. The defendant was arrested and charged with felony murder on September 11, 1979, and on January 17, 1980, he was indicted by a grand jury. Unable to post bond, the defendant remained incarcerated from the time of his arrest until October 28, 1980, a period in excess of thirteen months, at which time the felony murder charge against him was terminated by the entry of a nolle prosequi. Thereafter, the state opened the nolle and the defendant was rearrested for felony murder on July 24, 1981. He was again indicted on that charge on October 16, 1981. Trial began on December 2, 1981, and the defendant was found guilty as charged on December 10, 1981.

The defendant claims that the delay of almost twenty-seven months between his arrest on September 11, 1979, and the commencement of his trial on December 2, 1981, violated his right to a speedy trial under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. "The Supreme Court of the United States and this court have identified four factors which form the matrix of the defendant's constitutional right to speedy adjudication: '[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.' Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182 [2192], 33 L.Ed.2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980)." State v. Johnson, 190 Conn. 541, 544-45, 461 A.2d 981 (1983). None of these factors standing alone would demand a set disposition; rather, it is the total mix which determines whether the defendant's right was violated. State v. Nims, supra, 180 Conn., 591-92, 430 A.2d 1306.

The first issue which we address is the length of the delay. The defendant claims that the entire twenty-seven month period must be considered pretrial delay for purposes of assessing his speedy trial claim. The state, on the other hand, contends that, under United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), and State v. Lloyd, supra, the relevant period of pretrial delay for sixth amendment purposes does not include the nine month period between the state's entry of the nolle, on October 28, 1980, and the defendant's rearrest on July 24, 1981. The speedy trial clause "is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution." United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). In United States v. MacDonald, supra, 456 U.S., 7, 102 S.Ct., 1501, the court further held that the "Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause." Whether the nine month period between the nolle and the defendant's rearrest should be considered pretrial delay thus depends upon two factors. The first is whether the state was "acting in good faith" when it nolled the charges against the defendant. The second concerns the effect of a nolle prosequi under our law and, specifically, whether it may be considered the functional equivalent of a dismissal for purposes of speedy trial analysis.

The defendant claims for the first time on appeal that the state nolled the felony murder charge against him in bad faith. This claim must be considered in context. According to the state's theory of the case, the defendant, McCoy and Browdy had gone to Blue's apartment to commit a robbery. McCoy and Browdy were alleged to have acted as "lookouts" while the defendant knocked on Blue's door. When Blue answered the door the defendant produced a handgun and demanded money. During a struggle for the handgun Blue was shot. Consequently, the state attempted to arrange a bargain with McCoy in exchange for his testimony against the defendant. By October of 1980, the state's efforts to procure McCoy's testimony were unsuccessful. Browdy at the time was a fugitive from justice. McCoy was tried first and, in late October, 1980, a jury acquitted him of felony murder but found him guilty of robbery in the first degree.

Thereafter, juror selection commenced in preparation for the defendant's trial. After eleven jurors had been selected, the trial court, on October 28, 1980, conducted a hearing on the defendant's motion to suppress the handgun allegedly used in Blue's murder. McCoy was called to the witness stand and, despite warnings from the court that he might be held in contempt, persisted in his refusal to testify against the defendant. He also stated that he would not testify if called as a witness at the defendant's trial. After McCoy had concluded his testimony, the state nolled the charge of felony murder against the defendant. The state asserted as its reason for the nolle that without the testimony of McCoy or Browdy the remaining evidence against the defendant was insufficient to connect him with the incident leading to Blue's death. The assistant state's attorney further stated for the record that "if I felt there would be no way in the future to prosecute Mr. Gaston I would certainly go along with or not object to a dismissal but ... the hope of the State quite frankly is that we will locate Browdy, bring him back in this jurisdiction and with his cooperation bring [the defendant] back to trial." A review of the transcript of the October 28, 1980 proceedings reveals that the defendant moved for acquittal on the basis of unrelated double jeopardy grounds but did not otherwise oppose entry of the nolle.

On this record we are unable to conclude that the nolle was entered in bad faith. The defendant claims on appeal that bad faith may be inferred from the fact that the state was aware, on October 28, 1980, that McCoy would continue to assert his fifth amendment privilege. We disagree. Irrespective of McCoy's assertion of that privilege prior to his trial, in October, 1980, the state may reasonably have believed that its bargaining position with respect to McCoy would be enhanced after his conviction for robbery in the first degree. McCoy, when he reasserted his refusal to testify during the October 28, 1980 proceeding, had yet to be sentenced on his robbery conviction. The trial court informed McCoy that his decision to testify against the defendant would be a consideration at the time of sentencing. The state, while aware that McCoy did not desire to testify against the defendant, obviously hoped that he would change his mind in light of his forthcoming sentencing. In fact, McCoy eventually did reverse himself and testify against the defendant at his trial. We find no support in the record for the defendant's contention that the nolle was entered in bad faith.

We must also determine whether the nolle entered in this case was the functional equivalent of a dismissal for purposes of speedy trial analysis. In United States v. MacDonald, supra, the government reindicted the defendant on murder charges more than two years after those same charges had been dismissed. The Supreme Court held that because the speedy trial guarantee extends only to those persons who stand accused of committing a crime, that guarantee did not apply after charges had formally been dismissed and before prosecution was reinitiated. Id., 7, 102 S.Ct., 1501.

We recognize that the prosecution in MacDonald was terminated by dismissal while the present case involves the entry of a nolle prosequi. Nevertheless, we do not believe that the holding in MacDonald may be distinguished on that basis. The dismissal in MacDonald, like the nolle in the present case, did not bar later reinstitution of the same charges against the defendant. Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 5, 273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S.Ct. 931, 28 L.Ed.2d 218 (1971). As with the dismissal in MacDonald, the effect of the nolle was to "end pending proceedings without an acquittal and without placing the defendant in jeopardy." State v. Lloyd, supra, 185 Conn., 201, 440 A.2d 867. Under our rules "[t]he entry of a nolle prosequi terminates the prosecution and the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated." Practice Book § 727. Under our statutes "the entry of a nolle has no effect on the running of the statute of limitations; furthermore, reprosecution more than thirteen months after the entry of a nolle becomes difficult because after that time 'all police and court records and records of the state's or prosecuting attorney ... pertaining to such charge shall be erased.' General Statutes § 54-142a(c)." State v. Lloyd, supra, 210-11, 440 A.2d 867; cf. United States v. MacDonald, supra, 456 U.S., 8 n....