State v. Hall, 5398

• Decision Date: 21 February 1989
• Docket Number: No. 5398,5398
• Citation: 17 Conn.App. 502,554 A.2d 746
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Thomas HALL.

Page 746

554 A.2d 746

17 Conn.App. 502

STATE of Connecticut v. Thomas HALL.

No. 5398.

Appellate Court of Connecticut.

Argued Oct. 19, 1988.

Decided Feb. 21, 1989.

[17 Conn.App. 504] Sydney T. Schulman, Hartford, with whom, on the brief, was Otto Witt, Bloomfield, for appellant (defendant).

Mary H. Lesser, Deputy Asst. State's Atty., with whom, on the brief, was Dennis O'Connor, Asst. State's Atty., for appellee (state).

Before BORDEN, STOUGHTON and NORCOTT, JJ.

NORCOTT, Judge.

The defendant, Thomas Hall, was charged with murder in violation of General Statutes § 53a-54a and, after a trial to a jury, was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1). On March 11, 1985, the defendant was sentenced to a prison term of not less than ten nor more than twenty years. On this appeal, he claims that the trial court erred (1) in denying his motion to dismiss which he based on the state's failure to effect a timely arrest, (2) in not instructing the jury on the defense of self-defense with respect to the lesser included offense of manslaughter in the second degree, (3) in refusing to admit certain prior convictions of the victim, (4) in refusing to admit descriptions of the victim's violent habits, specific acts and reputation for carrying a gun, and (5) in refusing to instruct the jury on criminally negligent homicide. We find error.

The jury reasonably could have found the following: On January 27, 1981, the defendant was involved in an altercation with James "Bro" Robinson at the VIP Lounge in Hartford. The fight inside the bar moved outside where the defendant fired six gunshots into Robinson in rapid succession. The entire incident occurred within a few moments, the shots were fired almost at the instant Hall and Robinson exited the VIP Lounge, and there was no evidence presented as to which of the shots were the fatal ones. The defendant left the scene immediately after the shooting. Other facts relevant to the issues in this appeal will be discussed, infra.

I

Before reaching the principal claim of error relating to the defendant's trial, we address his contention that the trial court erred in denying his pretrial motion to dismiss the murder charge because of prearrest delay.

The defendant argues that the three and one-half year period required to locate him violated both his due process rights and his sixth amendment right to a speedy trial. ¹ He claims that his sixth amendment right arose as of the date the arrest warrant issued, and that his fourteenth amendment due process rights were violated by the unavailability of witnesses due to the delay.

The undisputed facts relevant to this claim are as follows. Shortly after the shooting on January 27, 1981, the defendant drove to Hartford Hospital to obtain emergency medical care for lacerations. He immediately left the hospital without giving any substantive information about his wounds and without paying. He and his girlfriend then drove to her home in New Britain where the defendant had been living. The defendant packed and left for another friend's house in New Britain. Several weeks later, he moved to Oregon where he resided until his arrest. ² It is clear that although the police asked the defendant's mother to have him contact them, the defendant never did so; nor did he ever inquire about the extent of Robinson's injuries.

At trial, several Hartford police officers testified as to the efforts made to locate the defendant after the shooting. The immediate efforts of the police included the following: (1) interviews with the victim's girlfriend and the defendant's mother; (2) a surveillance of the defendant's mother's residence and the housing project where the defendant was reported to have been living with his girlfriend; (3) a records check on the defendant's mother's surname, Vandeberg, that revealed the alias "Hall"; (4) the distribution of the defendant's mug shots to Hartford police officers; (5) the entry of all vital information on the defendant and his vehicle into the National Crime Information computer; and (6) the acquisition of an arrest warrant for the defendant on January 28, 1981.

Additionally, the principal investigating officer, Peter Darby, checked with the state police of each of the New England states and requested that they run checks on any of the defendant's relatives living there. The police also conducted periodic surveillances of a Bloomfield residence where it was believed the defendant's father lived. In April, 1981, the police discovered the defendant's car being driven in New Britain by a man who had purchased the vehicle from the defendant's girlfriend. Thereafter, Darby followed many leads in the New Britain area in an attempt to locate the defendant. All efforts were unsuccessful, and the police then considered the case "inactive."

In the summer of 1984, the defendant's employer, a bus company in Oregon, conducted a background check on him through the National Crime Information computer. The Hartford police were alerted, and the defendant was arrested on June 15, 1984. Waiving extradition, he was returned to Connecticut.

We turn first to the defendant's claim that his sixth amendment right to a speedy trial was violated by the delay in arresting him. The issuance of an arrest warrant in and of itself does not trigger the sixth amendment right to a speedy trial of a person not yet arrested. State v. Crawford, 202 Conn. 443, 452 n. 13, 521 A.2d 1034 (1987). "Absent a formal charge, the sixth amendment right to a speedy trial does not extend to the period prior to the arrest. United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)." State v. Crawford, supra, at 453 n. 13, 521 A.2d 1034. The delay in this case relates to the period of time before the defendant was arrested or formally charged by information or indictment. Accordingly, the sixth amendment provides no basis for his claim.

With respect to the defendant's alternative claim that the prearrest delay violated his fourteenth amendment due process rights, we again disagree. "In order to establish a due process violation because of preaccusation delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant." State v. Morrill, 197 Conn. 507, 522, 498 A.2d 76 (1985). "[T]he due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); see also United States v. Marion, supra. "In considering whether an excessive delay requires the dismissal of an indictment, a court must first determine whether the defendant suffered actual prejudice because of the delay. United States v. Carruth, 699 F.2d 1017, 1019 (9th Cir.1983), cert. denied, 464 U.S. 1038, 104 S.Ct. 698, 79 L.Ed.2d 164 (1984)." (Emphasis added.) United States v. Horowitz, 756 F.2d 1400, 1405 (9th Cir.1985), cert. denied, 474 U.S. 822, 106 S.Ct. 74, 88 L.Ed.2d 60 (1985).

From our careful review of the record before us, we find nothing from which we can conclude (1) that the reasons for the delay were unjustifiable or occasioned by the police so as to give them a tactical advantage over the defendant, or (2) that the delay resulted in prejudice to the defendant. ³ The defendant's arguments relating to this claim ignore the obvious role the defendant himself played in the delay about which he so vigorously protests. Under the circumstances of this case, we conclude that the three and one-half year delay between the incident and the defendant's arrest did not violate his right to due process of law.

II

We now turn to the dispositive issue in this case. The defendant argues that he was entitled to a jury instruction on the defense of self-defense with respect to the lesser included offense of manslaughter in the second degree, and that the trial court erred in refusing to give his requested instruction. The court did submit manslaughter in the second degree to the jury as a lesser included offense, but specifically instructed the jury that the defense of self-defense did not apply to that offense. The state contends that the trial court did not err and bases its claim on the following grounds: (1) there was insufficient evidence at trial to warrant a self-defense instruction; (2) the self-defense instruction is inconsistent with the elements of manslaughter in the second degree; (3) the court's instruction on self-defense for murder and manslaughter in the first degree was sufficient in that the jury's rejection of self-defense, as evidenced by the defendant's conviction of manslaughter in the first degree, renders the failure to instruct on manslaughter in the second degree academic; and (4) the defendant's requested instruction was an erroneous statement of Connecticut law. We will address these issues in the order in which the state has presented them.

A SUFFICIENCY OF THE EVIDENCE

A defendant is entitled to the requested instruction of self-defense under General Statutes § 53a-19 ⁴ whenever there is sufficient evidence at trial to raise a reasonable doubt concerning justification. State v. Cassino, 188 Conn. 237, 243, 449 A.2d 154 (1982); see also State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); State v. Folson, 10 Conn.App. 643, 646-47, 525 A.2d 126 (1987). The state has the burden of disproving the defense beyond a reasonable doubt. General Statutes § 53a-12(a); State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982).

We first review the evidence presented at trial in the light most favorable to the defendant's claim that he was entitled to the instruction. State v. Fuller, supra, 199 Conn. at 275, 506 A.2d 556; State v. Folson, supra, 10 Conn.App. at 647, 525 A.2d 126. We find that the evidence provided a sufficient...