State v. Green

• Decision Date: 22 August 1995
• Docket Number: No. 13518,13518
• Citation: 38 Conn.App. 868,663 A.2d 1085
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Samuel L. GREEN.

Page 1085

663 A.2d 1085

38 Conn.App. 868

STATE of Connecticut v. Samuel L. GREEN.

No. 13518.

Appellate Court of Connecticut.

Argued June 2, 1995.

Decided Aug. 22, 1995.

Kenneth W. Simon, Assistant Public Defender, for appellant (defendant).

James M. Ralls, Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Stephen Preleski, Assistant State's Attorney, for appellee (state).

Before DUPONT, C.J., and FOTI and LAVERY, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment following his conviction of robbery in the first degree in violation of General Statutes § 53a-134, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 and 53a-48, and assault in the second degree in violation of General Statutes § 53a-60(a)(2). On appeal, the defendant claims the trial court (1) improperly denied the defendant's motion for a speedy trial, (2) instructed the jury incorrectly on an element of assault in the second degree, and (3) should have granted the defendant's motion for judgment of acquittal because the evidence was insufficient to prove assault in the second degree beyond a reasonable doubt. We affirm the judgment of conviction.

The jury could have reasonably found the following facts. On February 5, 1993, a pizza deliveryman was accosted at gun point by three men. After demanding money, one of the men struck the victim on the left side of his head with a gun. The victim fell to the ground, and the victim's assailant and the two other men fled with an undetermined amount of money and food. The next day the defendant was arrested by the police after he was positively identified by the victim, and he was arraigned on February 8, 1993.

After several pretrial motions made by the defendant, including a motion for disclosure and motions for bond reductions, voir dire began on September 1, 1993. When it was discovered that the victim, an essential witness, was temporarily leaving the country for Pakistan, the state filed a motion for a continuance on September 7, 1993.

Even though the state had been in periodic contact with the witness from the beginning of voir dire, he had not indicated his intent to leave for Pakistan until September 7, 1993. That same day, the state served a subpoena on the witness and confirmed that he had a scheduled flight leaving for Pakistan. After attempting alternative means for obtaining the witness' testimony, including beginning trial earlier or deposing the witness prior to his departure, the state successfully moved for a continuance until November 15, 1993, the day of the witness' scheduled return. The defendant had no objection to this motion or to the court's finding of good cause for the continuance.

In October, the state contacted the defendant to inform him that the witness had extended his stay in Pakistan for another month. In response, the defendant moved for a speedy trial pursuant to Practice Book § 956D on October 28, 1993. On November 3, 1993, the court denied the defendant's motion without prejudice and continued the trial until December 15, 1993, the witness' amended scheduled return. On November 5, 1993, the trial court granted the defendant's motion to dismiss the original jury due to the additional delay, and selection of a new jury commenced on December 15, 1993. On January 19, 1994, the defendant was found guilty of all three charges, and, on March 9, 1994, he was sentenced to a total of thirteen years imprisonment.

I

The defendant argues that the trial court improperly denied his statutory right to a speedy trial. The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. State v. Flowers, 198 Conn. 542, 503 A.2d 1172 (1986). "On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).... The trial court's conclusions must stand unless they are legally and logically inconsistent with the facts. State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983). State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985)." (Citation omitted; internal quotation marks omitted.) State v. Flowers, supra, at 544, 503 A.2d 1172.

The sixth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution guarantee the right to a speedy trial. State v. Almgren, 12 Conn.App. 364, 368, 530 A.2d 1089 (1987). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set forth the guidelines to be applied in determining whether an individual's constitutional right to a speedy trial has been violated. Connecticut, however, has afforded individuals greater rights than those outlined in Barker by promulgating specific deadlines for commencing a criminal trial. Practice Book §§ 956B through 956E.

The trial court based its denial of the motion for a speedy trial on the witness' unavailability. The court noted that the witness' unavailability from September 7 until December 15 resulted in excludable time under § 956C. ¹ The trial court found that the state had exercised due diligence in attempting to obtain the witness' testimony, and therefore, the court excluded this time from the running of the speedy trial deadline and denied the motion. The trial court, however, did not need to address this question because by statute and under the rules of practice, the motion was not timely.

General Statutes § 54-82m authorizes the judges of the Supreme Court to promulgate rules to provide a procedure to assure a speedy trial. ² Practice Book § 956D requires that "[i]f the defendant is not brought to trial within the applicable time limit ... and a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice...." Therefore, before the defendant may move for dismissal, he must file a motion for a speedy trial. Furthermore, § 956D provides: "Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules." Because a motion to dismiss is waived unless filed before the commencement of trial and a motion for a speedy trial must precede a motion for dismissal, logically a motion for a speedy trial must also be filed before the commencement of trial in order to be afforded a remedy under the rules.

For the purpose of the speedy trial rules, commencement of trial "means the commencement of the voir dire examination in jury cases and the swearing-in of the first witness in nonjury cases." Practice Book § 956E; see also State v. Reddick, 224 Conn. 445, 460, 619 A.2d 453 (1993). In this matter, a jury case, the trial was deemed to commence on the day voir dire began, September 1. The defendant filed his motion for a speedy trial on October 28, and, although the jury was subsequently dismissed, under Practice Book § 956E, the trial had commenced on September 1. We conclude, therefore, as a matter of law, that the motion was inappropriate at the time of filing and could not be granted.

The defendant argues that such a conclusion "allows the state to pick one juror and put a case on hold indefinitely until necessary witnesses appear." This argument ignores, however, the fact that a continuance to delay trial will be granted only if good cause is shown. See State v. Haye, 214 Conn. 476, 483, 572 A.2d 974 (1990); State v. Gordon, 197 Conn. 413, 424B, 504 A.2d 1020 (1985). This rule places an affirmative duty on the state to make its witnesses available. Its failure to begin trial must be explained before a continuance will be granted. See, e.g., State v. Cleary, 3 Conn.App. 349, 350-51, 488 A.2d 831 (1985) (denying state's motion for continuance and dismissing charges because state failed to prepare diligently for trial).

Although the defendant is correct in stating that the statutory right to a speedy trial is intended to prevent "purposeful or oppressive" delay; Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); the statute and rules do not extend the time to file motions for a speedy trial beyond the commencement of trial. General Statutes § 54-82m. Furthermore, the defendant does not argue, nor do the facts support, a "purposeful or oppressive" delay by the state. Regardless, such findings are appropriately addressed in an objection to a motion for a continuance, not in a motion for a speedy trial, once trial commences.

Even if the defendant had moved for a speedy trial after the jury had been dismissed, rather than after the trial had begun and before he requested the jury's dismissal, he would still be incorrect in asserting the right since enough excludable time existed in order to bring the trial within the statutory requirements. In order for a motion for a speedy trial to be proper, it must be filed after the running of the requisite time period for commencing a trial. State v. Charlton, 30 Conn.App. 359, 363, 620 A.2d 1297 (1993); State v. Ortiz, 14 Conn.App. 493, 499, 542 A.2d 734 (1988).

Under Practice Book § 956B, the appropriate time frame for bringing an individual to trial after his arrest or arraignment is eight months, ³ excluding any time as allowed under Practice Book § 956C. Under § 956C (b) excludable time includes "[a]ny period of delay resulting from the absence or unavailability of ... any essential witness for the prosecution or defense.... For purposes of this paragraph, a defendant or any essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due...