State v. Hodge

• Decision Date: 13 April 1966
• Citation: 219 A.2d 367,153 Conn. 564
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Samuel J. HODGE.

Page 367

219 A.2d 367

153 Conn. 564

STATE of Connecticut v. Samuel J. HODGE.

Supreme Court of Connecticut.

April 13, 1966.

S. William Bromson, Special Public Defender, with whom, on the brief, was Philip A. Post, West Hartford, for appellant (defendant).

George D. Stoughton, Asst. State's Atty., with whom, on the brief, was John D. LaBelle, State's Atty., for appellee (state).

Before KING, C.J., and MURPHY, ALCORN, HOUSE and COTTER, JJ.

COTTER, Associate Justice.

The defendant appeals from his conviction, after a trial to the court, wherein he was found guilty as a seller of narcotics in violation of No. 485 of the 1959 Public Acts, which in relevant part is General Statutes §§ 19-246 and 19-265. He pleaded guilty under part B of the information as a second offender. ¹ The evidence as to his identification as a seller consisted of the testimony of a federal narcotics agent, who claimed to have made a purchase of heroin from the defendant during an undercover investigation of narcotics activity in the city of Hartford. This appeal challenges the defendant's conviction on three distinct grounds. ²

I

The defendant claims, in the first instance, that his arrest on November 14, 1959, for an offense that allegedly occurred October 24, 1959, was an unreasonable seizure of his person in violation of article first, § 8, of the Connecticut constitution (now article first, § 7, of the 1965 Connecticut constitution). It is no clear that the state and federal constitutional guarantees against unreasonable seizures pertain, inter alia, to arrests. State v. Licari, 153 Conn. 127, 132, 214 A.2d 900. The defendant's arrest was made pursuant to a warrant issued on November 13, 1959, the validity of which has not been questioned. The only claim of the defendant on this issue is that he is aggrieved because 'the seizure of his person some three weeks after the alleged offense was unreasonable.' He raises the question of delay in the arrest, which is one of first impression in this state. Ordinarily a delay between the time of an offense and the time of making an arrest will not affect the legality of the arrest or of the criminal proceedings subsequent thereto. United States v. Holiday, 319 F.2d 775, 776 (2d Cir.); Carlo v. United States, 286 F.2d 841, 846 (2d Cir.), cert. denied 366 U.S. 944, 81 S.Ct. 1672, 6 L.Ed.2d 855; Dailey v. United States, 261 F.2d 870, 872 (5th Cir.), cert. denied, 359 U.S. 969, 79 S.Ct. 881, 3 L.Ed.2d 836. Often a lengthy delay is required because the identity of the offender is unknown to the authorities or because additional time is needed to gather sufficient evidence to justify an official charge against one who is suspected of crime. Under such circumstances, the applicable statute of limitations is the ultimate safeguard against a long-delayed arrest and prosecution.

In some recent cases arising in the federal courts, however, it has been recognized that where the delay in arresting a defendant (or in otherwise apprising him of the charges against him) continues long after all the evidence has been assembled, and becomes a product of mere convenience to the state, a question of an unreasonable seizure or lack of a fair trial may arise. Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210, 213; Cannady v. United States, 351 F.2d 817, 818 (C.D.Cir.). The cited cases are concerned with delays due to undercover investigations of narcotics traffic, as in the present case, and we may assume that their basic reasoning is applicable to a claim of an unreasonable seizure brought under our state constitution. The defendant's rights under this claim must necessarily depend on all the circumstances, including the length of the delay, the reason for the delay, prejudice to the defendant, and a timely presentation of the claim to the trial court. Some prejudice to the defendant's case must be shown. Jackson v. United States, 351 F.2d 821, 822 (D.C.Cir.). Such prejudice might consist of the unavailability of alibi witnesses or the impaired memory of the defendant and others who vouch for his innocence. ³ Cannady v. United States, supra.

In the present case, there was an interval of three weeks between the sale of narcotics to the undercover agent and the arrest of the defendant. This can hardly be considered an unreasonable delay. See Jackson v. United States, supra (five months' delay); Mackey v. United States, 351 F.2d 794, 795 (D.C.Cir.) (two months' delay); Bey v. United States, 121 U.S.App.D.C. 337, 350 F.2d 467 (three and one-half months' delay); Hardy v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233, 234 (eight months' delay). In addition, the purpose of the delay was to protect the identity of an undercover agent who had been active in Hartford for about seven months and whose investigation resulted in twenty-one arrests of narcotic offenders which were made on November 13 and 14, 1959, and thereafter. A reasonable delay of this nature may be proper adjunct to responsible police investigation and should not undermine the legality of subsequent arrests and convictions except under unusual and clearly prejudicial circumstances. Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210, 212. It has been recognized that holding up the arrest and indictment for eleven months to complete undercover work is reasonable and that a mere delay in arrest does not of itself violate any of the accused's rights. United States v. Simmons, 338 F.2d 804, 806 (2d Cir.); see to the same effect United States v. Dickerson, 347 F.2d 783, 784 (2d Cir.) (seventeen months' delay). Finally, no prejudice to this defendant appears. His alibi witnesses displayed particularly acute memories in recreating the events of the evening in question. We conclude, therefore, that the length of the delay prior to the defendant's arrest was not unreasonable and did not deprive him of a fair trial under the circumstances of this case.

II

The second claim of the defendant is that, once arrested, he was denied his right to a speedy trial, in violation of article first, § 9, of the Connecticut constitution (now article first, § 8, of the 1965 Connecticut constitution).

,'whether an accused has been denied his constitutional right to a speedy trial depends upon the facts in a particular case. The right may be waived where a defendant consents to delay or both prosecution and defense agree upon or stipulate for post-ponement. Waiver may be implied where the defendant, in court, interposes no objections to a continuance.' State v. Holloway, 147 Conn. 22, 25, 156 A.2d 466, 468, Cert. denied, 362 U.S. 955, 80 S.Ct. 869, 4 L.Ed.2d 872. Delays occasioned by the defendant in attempting to retain private counsel are for his own advantage and cannot be used in advancing the claim that the defendant was denied his constitutional right to a speedy trial. See State v. Doucette, 147 Conn. 95, 107, 157 A.2d 487; 21 Am.Jur.2d 289, Criminal Law, § 252. Delays which are necessary in accordance with the settled course of judicial proceedings in the administration of the criminal law do not violate such a constitutional right to a speedy trial. Wojculewicz v. Cummings, 145 Conn. 11, 19, 138 A.2d 512, cert. denied, 356 U.S. 969, 78 S.Ct. 1010, 2 L.Ed.2d 1075.

No general principle can be stated in an effort to prescribe an exact period of time to satisfy the constitutional right to a speedy trial. Under the facts of this case, for instance, there were delays occasioned by the defendant and his counsel throughout the proceedings before the trial took place. The constitutional provision does not rule out accidental, necessary or reasonable delays but only those which are vaxatious, capricious, arbitrary or oppressive. Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393.

After his arrest, the defendant was presented in the municipal court in Hartford on December 8, 1959, a hearing on probable cause was held, and he was then bound over to the Superior Court for trial. At this time and prior thereto he was represented by private counsel. No claim was made at that time of the delay in the arrest or of a failure to grant a speedy trial. He was presented in the Superior Court on February 3, 1960. His counsel was not present in court, and the case was passed. When his private counsel did not appear in the Superior Court in his behalf, the defendant informed the presiding judge of the name of his attorney. His attorney was contacted, entered his appearance for the defendant, and the case was continued. Subsequently, in April, that attorney was permitted to withdraw as counsel without objection on the part of the defendant who was present in court at that time. Thereafter the public defender for Hartford County was appointed to represent the defendant. On May 10, 1960, at the commencement of the trial, the public defender filed a motion to dismiss the information on the grounds that the seizure of the person was unreasonable and that the state failed to give the defendant a speedy public trial.

'Three reasons have been suggested for according an accused a speedy trial: (1) to protect the accused from prolonged preliminary imprisonment; (2) to relieve him of anxiety and public suspicion attendant upon an untried accusation; and (3) to insure that means of proving his innocence will be within his reach by minimizing the possibility of witnesses becoming unavailable and their memories dulled.' Commonwealth v. Hanley, 337 Mass. 384, 387, 149 N.E.2d 608, 610, 66 A.L.R.2d 222, cert. denied, 358 U.S. 850, 79 S.Ct. 79, 3 L.Ed.2d 85; People v. Prosser, 309 N.Y. 353, 356, 130 N.E.2d 891, 57 A.L.R.2d 295. None of these reasons can be said to apply in this case so as to affect the trial to the disadvantage of the defendant. Under all the circumstances, we conclude that there was no denial of the defendant's right to a speedy trial.

III

The final claim of the defendant is that upon all the evidence his guilt was not proved...