State v. Mitchell

• Decision Date: 03 August 1999
• Citation: State v. Mitchell, 738 A.2d 188, 54 Conn. App. 361 (Conn. App. 1999)
• Court: Connecticut Court of Appeals
• Parties: (Conn.App. 1999) STATE OF CONNECTICUT v. MELVIN MITCHELL (AC 18502)

738 A.2d 188 (Conn.App. 1999)

STATE OF CONNECTICUT v. MELVIN MITCHELL

(AC 18502)

Connecticut Court of Appeals

Argued March 2, 1999

August 03, 1999

Lisa J. Steele, special public defender, for the appellant (defendant).

Judith Rossi, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Joan Alexander, senior assistant state's attorney, for the appellee (state).

Landau, Spear and Shea, Js.

Shea, J.

Robert E. Lancaster, Stephen Wizner and Frank R. Wright, law student intern, filed a brief for the Connecticut Legal Rights Project of The Jerome N. Frank Legal Services Organization as amicus curiae.

OPINION

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). He raises five grounds for reversal of the judgment: (1) the delay between the filing of the first information and the commencement of jury selection, claimed to exceed four years, violated his statutory and constitutional right to a speedy trial; (2) the trial court, in violation of his right to due process of law, failed to appoint an attorney to represent him in opposing the competency hearings; (3) the victim's statement to the police was admitted in evidence pursuant to the constancy of accusation doctrine despite the unavailability for cross-examination of the officer who took the statement; (4) testimony about a subsequent encounter between the victim and the defendant, which was admitted to show consciousness of guilt, should have been excluded; and (5) the claimed failure to inform the defendant on the record in open court of the charges against him violated his right under the sixth amendment to our federal constitution and article first, § 8, of our state constitution, both of which provide that "[in] all criminal prosecutions, the accused shall enjoy the right... to be informed of the nature and cause of the accusation." We affirm the judgment.

On the evening of May 17, 1991, the victim encountered the defendant, whom she knew from the neighborhood. They had a conversation and made plans to meet that evening. A short time later, the defendant drove his truck to a place where he again met the victim, who entered the truck. The defendant drove to an auto repair shop, where he and the victim smoked a small amount of cocaine. The defendant, accompanied by the victim, then drove to a club on Albany Avenue in Hartford, where he purchased more cocaine, gave it to the victim to hold, and drove with her to his residence on Blue Hills Avenue, where he occupied a basement apartment. The defendant prepared some of the cocaine and both of them smoked it.

When the defendant asked the victim to remove her clothes, she refused and told him that she wanted to leave. The defendant became very angry and the victim was frightened. She removed her clothes and claimed that the defendant forced her to perform oral sex and penetrated her vagina with his penis without her consent. He also performed oral sex on her without her consent.

Eventually the victim escaped by running out of the apartment without her clothes. She ran across the street to an apartment building to which she was admitted after ringing several doorbells. After the victim told the woman who admitted her that she had been raped, the police were called. On appeal, the defendant does not claim that the evidence at trial was insufficient to support the verdict of guilty on any of the counts of which he was convicted.

I.

The sixth amendment to our federal constitution provides, inter alia, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." Article first, § 8, of the constitution of Connecticut provides that "[i]n all criminal prosecutions, the accused shall have a right... to a speedy, public trial by an impartial jury." General Statutes § 54-82m directs the Judges of the Superior Court to adopt rules providing that the trial of a defendant charged with a criminal offense shall commence within twelve months from the date of the information or from the date of the arrest, whichever is later. The statute provides for dismissal of an information or indictment if a trial is not commenced within thirty days after a defendant has moved for a speedy trial. Practice Book §§ 43-39, 43-40 and 43-41 contain various provisions implementing the statute.

The defendant was first arrested on June 24, 1991. His first trial did not begin until March 10, 1993, a delay of more than twenty months after his arrest. He was not incarcerated, however, during that period. Most of the delay resulted from continuances requested by the defendant to obtain new counsel because of his dissatisfaction with the attorney representing him. Six different attorneys filed appearances on behalf of the defendant while this case was pending in the trial court.

After commencement of his first trial on March 10, 1993, the defendant failed to attend that proceeding on March 15, 1993, necessitating a mistrial, bond forfeiture and the issuance of a rearrest warrant. The defendant was rearrested in Massachusetts on October 14, 1993, and he was incarcerated thereafter. In his brief, the defendant concedes that he was responsible for all of the delay, except for two periods: (1) March 15, 1993, when the trial court declared a mistrial because the defendant did not appear for trial, until October 14, 1993, the date of his rearrest; and (2) June 22, 1994, when the court found the defendant incompetent to stand trial because of his inability to assist his counsel, until March 16, 1995, when the court found that he had regained his competence.

We hold, however, that neither of these two periods of delay can properly be charged against the state with respect to the defendant's right to a speedy trial. "A defendant cannot complain of any delay attributable to his flight or unavailability." United States v. Bey, 499 F.2d 194, 203-204 (3d Cir. 1974). "[L]aw enforcement officials are not expected to make heroic efforts to apprehend a defendant who is purposely avoiding apprehension or who has fled to parts unknown." Rayborn v. Scully, 858 F.2d 84, 90 (2d Cir. 1988). "In our view, an exception to the [sixty day] limitation period for acts of God and misconduct on the part of the defendant is a necessary implication." United States v. Bubar, 567 F.2d 192, 200 n.20 (2d Cir. 1977); quoted with approval in State v. Brown, 242 Conn. 289, 308-309, 699 A.2d 943 (1997). There is no evidence that the state did not move promptly to apprehend the defendant once it learned of his whereabouts.

With respect to the delay resulting from the competency hearings and the time consumed during the defendant's recovery, we see no basis for charging that delay to the state. It was the public defender then representing the defendant who first raised the question of his competence. On May 31, 1994, she requested that the trial court order a competency evaluation and the court granted the request. The defendant did not object to the order, but said that he would not work with his attorney and that he wanted the court to dismiss her from his case. On June 22, 1994, at the start of the competency hearing, the defendant said that he had cooperated with the evaluation team and expected its members to testify favorably for him. A psychiatric social worker testified that the defendant believed the defense bar was in collusion with the prosecutors and, because of this delusion, the defendant was unable to assist counsel in his defense. The court found the defendant incompetent to stand trial and committed him to the custody of the commissioner for mental health until he regained competence.

On August 31, 1994, a physician from the Whiting Forensic Institute testified that the defendant still suffered from a persecutory delusional disorder and recommended treatment in a hospital setting with an antipsychotic medication, which the defendant refused to take. Finally, on March 16, 1995, the same physician from the Whiting Forensic Institute testified that, while the diagnosis of the defendant, who was still refusing the medication, had not changed, he had demonstrated an ability to work with an attorney whom the defendant had known for twenty-five years. The court found the defendant competent to stand trial on the basis of that testimony. On March 29, 1995, the court denied the defendant's final speedy trial motion after excluding all of the time involved in the evaluation, treatment and restoration of the defendant's competence.

We agree with the trial court that the time consumed in the proceedings relating to the defendant's competence and in the treatment that eventually resulted in his being able to stand trial cannot be charged against the state for speedy trial purposes. Procedural due process requires that, when a serious question about the defendant's competence arises, the trial court must conduct an inquiry into his mental capacity before proceeding with the case. State v. Gonzalez, 205 Conn. 673, 686, 535 A.2d 345 (1987). General Statutes § 54-56d mandates such an inquiry when counsel for the defendant or the state requests an examination to determine a defendant's competence.

Our rejection of the defendant's claim that the state should be charged with the delay resulting from his failure to appear for trial on March 15, 1993, and also with the delay between June 22, 1994, and March 16, 1995, caused by the competency proceedings, removes any basis for finding a violation of the defendant's right to a speedy trial in view of the statement in his brief admitting that he was responsible for all of the remaining delay. We conclude that there is no merit in the defendant's claim of such a violation.

II.

The defendant claims that the...