State v. L'Heureux

• Decision Date: 07 May 1974
• Citation: 348 A.2d 578,166 Conn. 312
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Louis L'HEUREUX.

Page 578

348 A.2d 578

166 Conn. 312

STATE of Connecticut v. Louis L'HEUREUX.

Supreme Court of Connecticut.

May 7, 1974.

Jonathan E. Silbert, New Haven, for appellant (defendant).

Jerrold H. Barnett, Asst. State's Atty. with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

LOISELLE, Associate Justice.

In a two-part information, the defendant was charged, in the first part, with two counts of assisting, abetting and counseling the sale of heroin by another and one count of possession of heroin. The second part of the information charged the defendant with being a second offender. A jury returned a verdict of guilty on the three counts in the first part and the defendant thereafter pleaded guilty to the second offender charge. He has appealed from the judgment rendered on the verdict and plea.

The defendant claims seven grounds of error in his brief but they may be considered under three distinct issues: (1) whether error was committed by the court in its denial of a pretrial motion to dismiss the first count; (2) whether error was committed when the court permitted the state in its cross-examination of the defendant to inquire into two prior convictions for nonsupport; and (3) whether the court's denial of the defendant's motion to dismiss, made after the close of the state's case, was error.

The state claims to have proved that the defendant, the owner of the Nite-Life Restaurant in New Haven, gave his employee, Joseph Yedynak, Jr., heroin to sell for him. On May 15 and May 18, 1970, Yedynak made sales of heroin to undercover officers of the regional crime squad. Officers of the New Haven police department raided the Nite-Life Restaurant on May 19, 1970, and seized a quantity of narcotics and narcotic paraphernalia on the premises.

In his first motion to dismiss, which was addressed only to the first count, the defendant claimed that he was denied his rights to due process of law and to a speedy trial. No such claim was made as to the other two counts, which charged offenses allegedly committed within three and four days respectively from the offense alleged in the first count. Although the denial of a motion to dismiss is ordinarily not assignable as error; State v. Peay, 165 Conn. 374, 375, 335 A.2d 296; the defendant's claim will be discussed because it involves 'a fundamental constitutional right.' Klopfer v. North Carolina, 386 U.S. 213, 223-226, 87 S.Ct. 988, 18 L.Ed.2d 1; see State v. Evans, 165 Conn. 61, 70, 327 A.2d 576.

Prior to trial, a hearing was held on the defendant's motion to dismiss the first count and the court made a finding of facts: ¹ The defendant was arrested on May 19, 1970. On December 10, 1970, a substituted information was filed and on February 22, 1971, an amended substituted information was filed. The only difference between the substituted information and the amended substituted information is that the latter alleged that the offense in the first count occurred on May 15, 1970, whereas the former information alleged that it occurred on May 5, 1970. The offense charged in the first count was that the defendant assisted, abetted and counseled Yedynak in the sale of heroin. The second count of both the substituted information and the amended substituted information was that he committed the same crime on May 18, 1970. The third count in both the substituted information and the amended substituted information was that the defendant possessed or had heroin under his control on or about May 19, 1970.

The motion to dismiss was filed March 15, 1971, and the hearing thereon was held March 18, 1971. The defendant's defense to the charge in the first count of the substituted information of December 10, 1970, had been that he was in Washington, D.C on May 5, 1970. The defendant testified on direct examination that he could not recall the events of May 15, 1970. The defendant claimed that there were people outside the state who might be able to help him establish a defense for May 15, 1970, the date alleged in the first count of the amended substituted complaint of February 22, 1971, but he declined to reveal their identity on the ground that he would like them to be surprise witnesses if he could find them and bring them to New Haven. He also knew that one of the witnesses was brought into the state at some time prior to the hearing. After the hearing on March 18, 1971, the case was adjourned to the following Wednesday, March 24, 1971, and the defendant had that time to locate his witnesses. The defendant made no claim that any further continuance was needed.

The defendant contends that the modification of the first count, which occurred over nine months after his arrest, violated his rights to a speedy trial and due process in that the delay seriously prejudiced his ability to present a defense, and he claims that the court erred in concluding that he failed to sustain his burden of showing prejudice and in denying the motion for dismissal of the first count. The conclusion of the court is tested by the finding and must stand unless it is logically or legally inconsistent with the facts found or unless it involves some erroneous rule found or unless it involves some erroneous of law material to the case. Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 480, 338 A.2d 497.

The sixth amendment right to a speedy trial has been applied to the states through the guarantee of due process of law under the fourteenth amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. Where delay, which is not subject to review on the ground of the right to a speedy trial, results in actual prejudice to a defendant's right to a fair trial, the due process clause of the fifth amendment may require dismissal of a prosecution. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468. In addition, the constitution of the state of Connecticut also assures criminal defendants the rights to a speedy trial and due process of law. Conn.Const., art. 1, § 8. It is unclear whether the claim of the defendant is more appropriately considered under the right to a speedy trial or as part of the right to due process of law. Although appearing in a discussion of delay and unreasonable seizure, the following excerpt from State v. Hodge, 153 Conn. 564, 567, 219 A.2d 367, is relevant to this case: '(W)here 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.' (Emphasis added.) While the modification of the date of the alleged offense does not fall within a literal interpretation of the phrase 'speedy trial,' courts have entertained challenges to delays similar to the one in this case under both speedy trial and due process claims. See United States v. Ewell,383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627; Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393; United States v. Kleinbard, 333 F.Supp. 699 (E.D.Pa.); State v. Baker, 164 Conn. 295, 296, 320 A.2d 801; State v. Holloway, 147 Conn. 22, 156 A.2d 466, cert. denied 362 U.S. 955, 80 S.Ct. 869, 4 L.Ed.2d 872. The defendant's claim of error will be examined under both the right to due process and the right to a speedy trial. The question of prejudice is relevant to both issues, although approaches to the requirement to show prejudice differ for speedy trial and due process.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the Supreme Court adopted a 'balancing test' in which the conduct of both the prosecution and the defendant were to be weighed on a case by case basis in evaluating whether there has been a denial of the right to a speedy trial. ' (S)ome of the factors which courts should assess in determining whether a particular defendant has been deprived of his right . . . (are) (l)ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.' Id., 530, 92 S.Ct. 2192. Thus, the question of whether the defendant's claims of injury to his defense constitute sufficient prejudice to establish a denial of the right to a speedy trial can only be answered after examining the other factors in the case. Greater specificity and harm must be shown where the other factors weigh in the state's favor, while a lesser showing will constitute sufficient prejudice when the other facts support a defendant's argument. See United States v. Dyson, 469 F.2d 735, 741 (5th Cir.); Murray v. Wainwright, 450 F.2d 465, 471-472 (5th Cir.).

The delay of over nine months in correcting the date from May 5 to May 15 is not an overwhelming period of time, but the record fails to disclose that the state offered any reason or excuse for its error. The assumption that this was an innocent mistake, which was corrected promptly after discovery, does not excuse the state's action. 'Unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay . . . but, as . . . (the United States Supreme Court) noted in Barker v. Wingo, 407 U.S. 514, 531 (92 S.Ct. 2182, 33 L.Ed.2d 101) (1972), they must 'nevertheless . . . be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Strunk v. United States, 412 U.S. 434, 436, 93 S.Ct. 2260, 2262, 37 L.Ed.2d 56. The defendant asserted his right to a speedy trial by the motion for dismissal shortly after the filing of the amended substituted information, and thus no element of waiver operates to weaken the defendant's claim. A nine-month, unexcused delay does not present such a strong case for the defendant that he is excused from the...