State v. Kruelski

• Citation: 41 Conn.App. 476,677 A.2d 951
• Decision Date: 28 May 1996
• Docket Number: No. 14813,14813
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Edward KRUELSKI, Jr.

Page 951

677 A.2d 951

41 Conn.App. 476

STATE of Connecticut v. Edward KRUELSKI, Jr.

No. 14813.

Appellate Court of Connecticut.

Argued Jan. 18, 1996.

Decided May 28, 1996.

Robert L. Marconi, Assistant Attorney General, with whom, on the brief, was Richard Blumenthal, Attorney General, for appellant (state).

Paul D. Eschuk, Assistant Public Defender, for appellee (defendant).

Before DUPONT, C.J., and HEIMAN and HULL, JJ.

HULL, Judge.

The state appeals from a judgment of acquittal ¹ on the charge of offering to make home improvements without being registered in violation of General Statutes § 20-427(b)(5). ² Such a violation is designated a class B misdemeanor; General Statutes § 20-427(c)(1); and carries a penalty of imprisonment for not more than one year. General Statutes § 53a-26. The state claims on appeal that (1) the issuance of the warrant for the arrest of the defendant and its service on the defendant, on the facts of this case, tolled the statute of limitations, and (2) a second trial of the defendant would not be barred by the principles of double jeopardy.

The factual findings of the court, which are not challenged in this appeal, are as follows. The work offered to be done comes within the definition of the Home Improvement Act, General Statutes § 20-419 et seq. The defendant did not have a certificate of registration. The state introduced sufficient evidence to sustain a conviction for violation of § 20-427(b)(5). The offer prohibited by the statute was made on August 24, 1993. In addition, the parties agree that a warrant was issued on August 22, 1994, although the warrant was not served and the defendant was not arrested until August 25, 1994, one day after the statute of limitations ran.

On the first issue, we reverse the judgment of the trial court and remand the case to the trial court for further proceedings. Because the judgment is set aside, we need not reach the state's second issue.

I

The state claims that the statute of limitations was satisfied because the warrant was issued within one year of the offer to perform a home improvement without a certificate as prohibited by the statute, and that it was not necessary for the warrant to be delivered to a proper officer for service or actually served within the one year period, provided that it was executed without unreasonable delay. General Statutes § 54-193, entitled "Limitation of prosecutions for various offenses," provides in relevant part: "(b) No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d, except within one year next after the offense has been committed...." Thus, since the crime charged here carries a penalty of imprisonment of not more than one year, the applicable statute of limitations is one year after the offense was committed.

The trial court determined that the defendant's motion for acquittal raised the question of the meaning of the word "prosecuted" in § 54-193(b). To answer this question, the court relied on State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987), and concluded that both issuance of a warrant and delivery to a proper officer for service are necessary to toll the statute of limitations. The court then considered the evidence concerning delivery of the warrant to the Ridgefield police. Because the offer prohibited by the statute occurred on August 24, 1993, and the warrant was not delivered to a proper officer for service until August 25, 1994, one day after the statute expired, the court concluded that the defense had met its burden on its special defense of the statute of limitations. The court did not consider the date of execution of the warrant in its analysis, but relied solely on the date of delivery of the warrant to a proper officer. We disagree with the court's reading of State v. Crawford, supra, at 443, 521 A.2d 1034.

A statute of limitations is the primary safeguard by which a citizen is protected from stale prosecutions. United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464 30 L.Ed.2d 468 (1971); United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777-78, 15 L.Ed.2d 627 (1966); State v. Baker, 164 Conn. 295, 296, 320 A.2d 801 (1973); State v. Cordova, 38 Conn.Sup. 377, 379, 448 A.2d 848 (1982). "The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past." Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970); State v. Cordova, supra, 38 Conn.Sup. at 379-80, 448 A.2d 848. In upholding this safeguard, Connecticut courts consistently have considered only two events when ruling on whether a defendant may successfully raise the statute of limitations as an affirmative defense: (1) the issuance of the warrant by a judicial authority; and (2) the execution or service of the warrant on the accused.

The first Connecticut case concerning a criminal statute of limitations is Newell v. State, 2 Conn. 38 (1816). The information against Newell alleged that he committed an offense in September, 1814. Id. "The information was exhibited to a justice of the peace, and a warrant issued, in August, 1815. In May, 1816, the defendant was arrested, examined, and a recognizance taken for his appearance at the next superior court. At the superior court, the defendant pleaded, that the information was not exhibited within" the one year limitation. (Emphasis in original). Id. The pertinent statute provided: " '[T]hat no person shall be indicted, prosecuted, informed against, complained of, or compelled to answer, before any court, assistant, or justice of the peace, within this state, for the breach of any penal law, or for other crime or misdemeanor, by reason whereof a forfeiture belongs to any public treasury, unless the indictment, presentment, information, or complaint, be made and exhibited within one year after the offence is committed.' " Id. at 39.

The defense argued that the case could not be considered exhibited until it came before the court having jurisdiction. In that opinion, notable for its brevity, as well as its directness, Chief Justice Swift stated: "The question is, what is intended by exhibiting a complaint, in criminal cases. The presentment of the complaint, signed by some proper informing officer, to a court or public officer, who has authority to receive the same, and to issue a warrant to apprehend the offender, and bring him to trial, must be a compliance with the law." (Emphasis in original.) Id., at 40. Newell, however, is not directly on point since it rested on the meaning of "exhibited" rather than on the meaning of "prosecuted," as in the present case. It is relevant, nevertheless, by analogy, for the court's unwillingness to extend the elements necessary to toll the statute of limitations beyond the bright line event of the issuance of the information by an appropriate officer.

We next fast-forward to State v. Cordova, supra, 38 Conn.Sup. at 377-78, 448 A.2d 848, in which the Appellate Session of the Superior Court considered a prior version of General Statutes (Rev. to 1979) § 54-193 which, although not identical to the statute in this case, contained the relevant language concerning "prosecution" for an offense involved in this case. The defendant was accused of failure, on July 1, 1979, to grant the right-of-way to an emergency vehicle in violation of General Statutes § 14-283. Id. An arrest warrant was signed by a judge of the Superior Court on September 27, 1979, and the defendant was arrested on March 9, 1981. Id., at 378, 448 A.2d 848. The defendant moved to have the charges dismissed on the ground that he was being prosecuted beyond the one year limitation prescribed by § 54-193. The motion was denied, and the defendant was convicted, from which conviction he appealed. Id.

The Appellate Session stated that "[t]he first issue presented involves the meaning of the word 'prosecuted' as it is used in § 54-193; specifically, whether an arrest warrant that is issued within the one-year limitation period governing misdemeanors, but which is executed over one year from the date of the alleged offense, violates this statute of limitations." Id. The state argued that "the mere issuance of a warrant commences prosecution and tolls the limitation period." Id. The defendant contended that "the execution of the arrest warrant commences prosecution for the purpose of satisfying the statute of limitations." Id. The Cordova court stated that "[s]ince § 54-193 does not define when prosecution commences, it must be analyzed in the context of the policies underlying the limitations statutes." Id., at 379, 448 A.2d 848. The court reasoned that the primary protection against an accused's "being prosecuted for stale criminal charges ... is provided by the statute of limitations." Id. The court further noted that the statute protects against only " 'pre-indictment' delay." Id., at 380, 448 A.2d 848. " '[P]ost-indictment' delay is protected by the constitutional right to a speedy trial." ³ Id. The court said that the issue before it was "to determine which safeguard is applicable when the arrest is by warrant." Id.

In considering the issue, the court stated that "[t]he general rule is that when an arrest warrant is used to charge the commission of a criminal offense, the mere...