State v. Johnson

• Decision Date: 28 June 1983
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Raymond JOHNSON.

Page 981

461 A.2d 981

190 Conn. 541

STATE of Connecticut v. Raymond JOHNSON.

Supreme Court of Connecticut.

Argued March 30, 1983.

Decided June 28, 1983.

David P. Ball, Danbury, with whom, on brief, was Steven M. Olivo, Danbury, for appellant (defendant).

Carl Schuman, Asst. State's Atty., with whom, on brief, were Walter D. Flanagan, State's Atty., and Brian E. Cotter, Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and SHEA, JJ.

PARSKEY, Associate Justice.

The defendant, Raymond Johnson, was charged with one count of larceny in the first degree in that he obtained money by false promise in violation of General Statutes §§ 53a-119(3) and 53a-122(a)(2). After a trial to the jury, the defendant was found guilty and the trial court imposed a sentence of not less than four nor more than eight years. From that judgment the defendant has appealed.

The jury could reasonably have found the following facts. The defendant was a Bethel police officer who had a part-time job with Jones Motor Freight. In mid-February, 1979, the defendant visited Earl LeClair, an acquaintance, who managed and resided in the Sea Gull Motel in Bethel. The defendant asked LeClair if he trusted him and LeClair responded affirmatively. The defendant then told LeClair that he knew a way of making a lot of money without getting into trouble.

The defendant explained that a friend of his controlled a currency distribution center in Springfield, Massachusetts, that periodically the friend would haul money from Philadelphia to Springfield, and that he would pick up a load of old money at regular intervals and return it to Philadelphia to be shredded. This person had access to an extra truck "seal" that carried the same number as the actual seal on his truck. The friend was retiring, and April 19 would be his last run. The defendant claimed that for $50,000 the friend would supply him with the additional seal.

The defendant outlined his plan to LeClair. The truck would stop near the motel on one of its trips. There the defendant would break the seal, take off a few bags of money to be left at the motel, and reseal the truck with the newly purchased seal. LeClair was told that he could stand to gain between $800,000 and $900,000.

The defendant stopped by the motel several times to discuss his scheme with LeClair. Claiming to have $10,000, the defendant requested that LeClair provide the balance.

LeClair, after making various loan arrangements to secure the money, was met by the defendant at the motel on April 18, 1979. There LeClair gave the defendant a briefcase containing $40,000 in cash. The defendant, on the back of a business card, wrote a truck and trailer number and the length of the truck that supposedly would carry the currency. The defendant was to pick up the truck in Philadelphia, drive to Springfield, and then stop on the way back around 11:30 to 11:45 on April 19. He advised LeClair not to say anything to anyone and to stay near the phone. The two shook hands. Earl LeClair did not see the defendant again until the day of trial.

The defendant left the state the next morning. His wife called the police station to say that he was sick. From April 23 to May 7, the defendant, using the name of Richard Wayne, stayed at the Tennessee Hotel in Memphis. On May 25, the defendant arrived in Tucson, Arizona to stay with his daughter. That night he learned from her that a warrant had been issued for his arrest. The defendant returned in mid-June and met his wife at a New Haven hotel. Knowing that authorities wanted him, he nonetheless left the state again, this time for North Carolina. Thereafter, arrangements were made for a Danbury police officer to meet the defendant upon his arrival in a plane landing at LaGuardia Airport. The officer drove the defendant to Connecticut where he was arrested for the charge of which he now stands convicted.

This appeal involves four claims of error. At issue is whether the court erred (1) by not granting the defendant's motion to dismiss brought on speedy trial grounds; (2) by permitting testimony concerning prior misconduct of the defendant; (3) by excluding the defendant's proposed testimony concerning the former police chief of the town of Bethel; and (4) by ordering the examination of certain witnesses outside the presence of the jury.

I

The defendant first asserts that the court erred by denying his motion to dismiss brought on speedy trial grounds. See Practice Book § 815(7).

The defendant was arrested on June 20, 1979. On July 10, 1979, the defendant entered a plea of not guilty. Thereafter, on August 27, 1980, the defendant filed a motion to dismiss on speedy trial grounds. The motion was heard and denied on October 7, 1980. After a trial to the jury, the defendant was found guilty on October 17, 1980.

The sixth amendment guarantee of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967). This right is also guaranteed by the Connecticut constitution, article first, § 8. Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society. United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966); State v. Troynack, 174 Conn. 89, 91, 384 A.2d 326 (1977). 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. ---, pp. ---, --- (43 CLJ 5, pp. 10, 13) 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980). A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant's right was violated. State v. Nims, supra, 591-92, 430 A.2d 1306.

Although the sixteen month delay involved herein is not unreasonable per se; State v. Nims, supra, 592, 430 A.2d 1306; State v. Troynack, supra; it is sufficiently long to require an examination of the other factors that go into the balance. State v. Brown, 172 Conn. 531, 536, 375 A.2d 1024, cert. denied, 434 U.S. 847, 98 S.Ct. 153, 54 L.Ed.2d 114 (1977). The state's explanation, crowded court dockets, while not favored, does not establish the defendant's case. State v. Lloyd, supra, 185 Conn. ---, 440 A.2d 867.

The "defendant's assertion of the right" by a motion to dismiss on speedy trial grounds was not filed until August 27, 1980, approximately fourteen months after his arrest. This factor militates against the defendant's claim. The failure to assert the right, while not constituting a waiver, does make it difficult for the defendant to prove that he was denied a speedy trial. Barker v. Wingo, supra, 407 U.S. 528, 531-32, 92 S.Ct. 2191, 2192-2193.

The final factor in the balancing test is prejudice to the defendant. "Prejudice ... should be assessed in the light of the interests of the defendants which the speedy trial right was designed to protect .... [The United States Supreme] Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Barker v. Wingo, supra, 532, 92 S.Ct. 2193. In the present case the defendant was free on bond pending trial and there is no claim that he suffered excessive anxiety and concern. The defendant's claim is rather that the delay in instituting the trial rendered him unable to secure the testimony of two witnesses "essential to the presentation of the defense."

The defendant's motion to dismiss was heard on October 7, 1980. Only the representations of counsel were offered to the court; no evidence was presented. The defendant's counsel represented to the court that two witnesses had absented themselves from the jurisdiction. Counsel claimed that at least one of these witnesses would have been available had the trial commenced earlier. Counsel did not indicate, however, what role the witnesses would play in the defense or demonstrate when the witnesses had left the jurisdiction. The court denied the motion to dismiss finding that the delay was reasonable and that the defendant had not been prejudiced.

"[I]f a defendant merely alleges ... inability to locate known or unknown witnesses who might testify on his behalf, he has failed to illustrate prejudice with the required degree of specificity. United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773 , 15 L.Ed.2d 627 [1966]; United States v. Churchill, 483 F.2d 268, 273-74 (1st Cir. [1973]." State v. L'Heureux, 166 Conn. 312, 321, 348 A.2d 578 (1974). The defendant must show that the missing witness could supply material evidence for the defense. Smith v. Mabry, 564 F.2d 249, 253 (8th Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978). Conclusory, vague or oblique allegations are discountenanced. State v. Lasher, 190 Conn. 259, 266, 460 A.2d 970, (1983). Further, the defendant failed to establish that even without the delay the witnesses would have been available. See State v. Troynack, supra, 174 Conn. 94, 384 A.2d 326.

We conclude that the court's finding that the delay occasioned no prejudice to the defendant was not clearly erroneous. On balance we find that the defendant was not deprived of his constitutional right to a speedy trial.

II

With respect to the evidence of other misconduct introduced at trial, the defendant claims error on several grounds.

The...