State v. McCarthy

• Decision Date: 04 September 1979
• Citation: 179 Conn. 1,425 A.2d 924
• Parties: STATE of Connecticut v. Robert J. McCARTHY.
• Court: Connecticut Supreme Court

Page 924

425 A.2d 924 179 Conn. 1 STATE of Connecticut
v.
Robert J. McCARTHY. Supreme Court of Connecticut. Argued May 1, 1979.
Decided Sept. 4, 1979.

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[179 Conn. 2] Arthur Levy, Jr., and Warren A. Luedecker, Bridgeport, with whom was Steven A. Levy, Bridgeport, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Domenick J. Galluzzo, Asst. State's Atty., for appellee (state).

Before [179 Conn. 1] COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

[179 Conn. 2] LOISELLE, Associate Justice.

The defendant was indicted for the murder of Victoria Stuart in violation of General Statutes §§ 53a-54a and 53a-8, and informed against for the attempted murder of Donald Stuart in violation of General Statutes §§ 53a-54a and 53a-49. The defendant was found guilty of both charges by a jury. He has appealed from the judgments rendered on the guilty verdicts.

[179 Conn. 3] The jury could have found the following: The defendant first met Jean Siretz, then age 17, in October 1973, and they lived together from February 1974, through April 1975. At about 8:30 p. m. on April 4, 1975, they went to a Norwalk bar. Before going to the bar, Siretz snorted cocaine and there was testimony that she was high on LSD. When she and the defendant left the bar,

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they discovered that the windshield of the defendant's van had been smashed. The defendant assumed that Donald Stuart had done it. Stuart had previously bought drugs from the defendant for sale to others. Siretz and the defendant then went to a nearby bowling alley where Donald Stuart's car was parked and the defendant smashed Stuart's windshield with a tire iron.

They then went to the apartment of Donald Lawlor. It was about 12:45 a. m. on April 5, 1975. They were both very angry because they thought Donald Stuart had vandalized the defendant's van. The defendant told Lawlor that they would get Donald Stuart for that. The defendant and Siretz insisted that Lawlor return a gun they had left with Lawlor. Siretz acted out a pantomime depicting how she would "blow Donald Stuart away." The defendant and Siretz asked Lawlor what the perfect alibi would be. He suggested checking into a hospital. The defendant and Siretz said they were going to "blow ... Stuart away." While still at Donald Lawlor's apartment, the defendant asked Siretz if she knew how to fire a gun. When she answered "yes," he pointed to his head, between his eyes, and told her to shoot both Donald Stuart and his wife Victoria there to make sure they were dead. The defendant told her to leave the gun under a washing machine at a friend's building after she [179 Conn. 4] shot them and to meet him at the Norwalk Hospital. The defendant's plan was to go to the emergency room, complaining of a lower back injury, while Siretz went to the Stuarts' apartment. The defendant loaded the gun and gave it to Siretz. The defendant told Siretz that he could not shoot Stuart because the defendant was already in enough trouble in New York because he had shot his wife. The defendant drove Siretz to the parking lot of the Stuarts' apartment building and left her there. At about 2 a. m. on April 5, 1975, Siretz knocked on the door of Donald and Victoria Stuart's third floor apartment. Victoria Stuart let her in. After asking Victoria where Donald was, Siretz walked into the bedroom and shot him. Victoria Stuart ran out of the apartment, but Siretz dragged her back inside and shot and killed her. After Siretz hid the gun under a washing machine, she met the defendant, Robert McCarthy, at the Norwalk Hospital where she told him she had "done it" and he said "he was sort of proud." When the police arrived at the Stuarts' apartment, they found Victoria Stuart dead and Donald Stuart suffering from a bullet wound which mutilated his face and caused the loss of his right eye.

The defendant's first assignment of error is that the trial court erred in denying his motion to dismiss based on the state's failure to provide him with a speedy trial. ¹ The defendant was arrested and incarcerated on April 5, 1975. His first trial, which ended [179 Conn. 5] in a mistrial, started on November 3, 1976. The retrial at which he was convicted began on January 11, 1977. Eighteen months and twenty-eight days elapsed between the time when the defendant was arrested and when he was first brought to trial.

The sixth amendment guarantee of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The Connecticut constitution, article first, § 8, provides a comparable safeguard. Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact on both the accused and society. United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the

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United States Supreme Court found "no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months." Id., 523, 92 S.Ct., 2188. Instead it adopted a balancing test, which would require that each case be approached on an ad hoc basis. The court identified four factors which should be assessed in determining whether a particular defendant has been denied this right: "Length 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; State v. L'Heureux, 166 Conn. 312, 319, 348 A.2d 578 (1974); see Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). The defendant's claim that he was denied his constitutional right to a speedy trial must be examined in light of those factors.

[179 Conn. 6] The defendant's brief, which refers to the court file and which is not contradicted by the state, outlines the chronology of the activity of the defendant's case. ² The record indicates that almost nineteen months elapsed from the time of the arrest to [179 Conn. 7] the commencement of the first trial. This lengthy delay triggers an inquiry into the other factors that go into the balance. Barker v. Wingo, supra, 407 U.S. 530-31, 92 S.Ct. 2182; 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); State v. L'Heureux, supra, 166 Conn. 319, 348 A.2d 578.

The state in its brief gives several reasons for the delay: (1) the crowded criminal docket; (2) the complex nature of the case; (3) the need to secure the testimony of Siretz, the young woman who actually fired the shots; ³ (4) the three changes in defense counsel; and (5) scheduling problems due to the fact that this was a jury trial and there were twenty-two witnesses.

In Barker v. Wingo, supra, 407 U.S. 531, 92 S.Ct. 2182, it was stated that a neutral reason such as an overcrowded docket should be weighed less heavily than a deliberate attempt to delay on the part of the state; but nevertheless, the delay, if for this reason, should be considered since the ultimate responsibility for such circumstances must rest with the state rather than with the defendant. See also State v. Brown, supra, 172 Conn. 536-37, 375 A.2d 1024. The claim of time spent negotiating

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with Siretz' counsel cannot be considered as there is nothing in the record to substantiate this claim. This is not to be construed as disbelief of the state's assertion in its brief, but rather as a necessary application of appellate procedure that claims made in briefs must be supported by the record. Furber v. Administrator, 164 Conn. 446, 451, 324 A.2d 254 (1973). However, what may be considered in evaluating a delay in prosecution and what the record [179 Conn. 8] supports is the complex nature of the case. This was not an ordinary street crime. The state was not alleging that the defendant actually killed Victoria Stuart and wounded Donald Stuart, but was rather attempting to prove that the defendant, planning on insulating himself with his hospital alibi, induced Siretz, who was allegedly high on drugs, to pull the trigger. The evidence also revealed that conflicting statements were made by the actual perpetrator of the crimes. Under these circumstances, it was obvious that the state needed time to investigate and marshal its evidence.

"(T)he defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right." Barker v. Wingo, supra, 407 U.S. 528, 92 S.Ct. 2191. According to the record, the defendant first asserted his right to a speedy trial by motion on August 28...