State v. Nelson, 33691.

• Decision Date: 06 August 2013
• Docket Number: No. 33691.,33691.
• Citation: 73 A.3d 811,144 Conn.App. 678
• Parties: STATE of Connecticut v. Edward NELSON.
• Court: Connecticut Court of Appeals

144 Conn.App. 678

73 A.3d 811

STATE of Connecticut

v.Edward NELSON.

No. 33691.

Appellate Court of Connecticut.

Argued May 15, 2013.

Decided Aug. 6, 2013.

Edward Nelson, self-represented, the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Nancy Dolinsky, senior assistant state's attorney, for the appellee (state).

ROBINSON, KELLER and BISHOP, Js.

BISHOP, J.

The defendant, Edward Nelson, appeals from the judgment of conviction, rendered following a jury trial, of one count of interfering with an officer in violation of General Statutes § 53a–167a and one count of breach of the peace in the second degree in violation of General Statutes § 53a–181 (a)(1). The defendant claims that the trial court improperly (1) denied two motions to dismiss concerning (a) the statute of limitations pursuant to General Statutes (Rev. to 2007) § 54–193(b), and (b) the unreasonable delay in prosecution in light of General Statutes (Rev. to 2007) § 54–142a (c); (2) rejected his motion in limine to preclude a police officer from testifying regarding testimonial hearsay statements in violation of Crawford;¹ and (3) violated his due process rights when it rejected his request to charge the jury concerning a “common-law privilege to resist unlawful police conduct” and self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 22, 2006, at approximately 12:39 a.m., Officer David Dogali was patrolling Greenwich Avenue in Stamford in a marked police vehicle when he was flagged down by Anthony Hinton, a security staff employee at Cafe' Bahia, a nearby nightclub. Hinton informed Dogali that a black male had punched a black female in the face during an argument nearby. Hinton then pointed out the defendant to Dogali.

Dogali stopped the defendant and asked him if he had been arguing with a female. The defendant immediately began loudly yelling to Dogali that Dogali had no business talking to him, that he was a law student who knew his rights, and that he did not have to talk to Dogali. Despite Dogali's attempts to calm the defendant and to explain his reasons for stopping him, the defendant remained enraged and uncooperative, and began to walk away and leave the area. Dogali informed the defendant that he could not allow him to leave the area until he had investigated what had happened. Dogali then asked the defendant to place his hands on a nearby vehicle, but the defendant continued to yell, scream, and resist Dogali.

The defendant's wife, Patricia Nelson, suddenly charged at Dogali while pointing at the defendant, screaming that she wanted him arrested and that she was pressing charges.² The defendant continued to struggle while Dogali informed him that he was under arrest. Because the defendant did not comply with Dogali's request to put his hands behind his back, Dogali grabbed the defendant's right arm, placed it behind his back, and attempted to apply handcuffs. Despite Dogali's repeated commands to stop resisting, the defendant continued to scream that Dogali had no right to arrest him and that he was going to sue Dogali.

Sergeant Thomas Scanlon arrived at the scene while Dogali was still struggling with the defendant. Both Dogali and Scanlon instructed the defendant to stop resisting and Scanlon warned that if he did not comply, he was going to use the Taser gun on him. As the defendant continued to refuse to cooperate, Scanlon used the Taser gun, shocking the defendant on his left leg. The officers were then able to handcuff the defendant and place him in the backseat of a patrol car.

Once in the patrol car, the defendant continued to scream that he was going to sue Dogali, that Dogali's job was as good as gone, and that he had no business arresting him. Subsequently, when Dogali attempted to process the defendant at the police station, the defendant would not comply physically. He refused to give his address, and, when asked to remove his shirt, he threw it at another officer's face. The defendant was then handcuffed again before requesting medical attention for his leg.

On his arrest, the defendant was charged with interfering with a police officer, breach of the peace in the second degree, and assault in the third degree. The initial information, dated October 23, 2006, charged the defendant with interfering with an officer and two counts of breach of the peace in the second degree. The state later amended the original information on April 5, 2011, by eliminating one count of breach of the peace in the second degree, on April 19, 2011, by changing the language in one of the charges, and again on May 18, 2011, by adding more details concerning the location of the arrest to the information. The operative information dated May 23, 2011, charged the defendant with one count of interfering with an officer in violation of § 53a–167a, and two counts of breach of the peace in the second degree in violation of § 53a–181(a)(1). The court instructed the jury, among other things, regarding interfering with an officer and breach of the peace. After deliberations, the jury found the defendant guilty of one count of interfering with an officer and one count of breach of the peace in the second degree. After accepting the jury's verdict, the court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective sentence of one year incarceration, execution suspended, and one year of probation with conditions imposed, $3000 in fines, and court costs. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant's first two claims assert that the court improperly denied his two motions to dismiss, filed separately on April 13 and May 3, 2011, on different grounds. Both arguments lack merit.

The following additional procedural history is relevant to our resolution of these claims. After being released on a $2500 bond, the defendant appeared in court for arraignment on October 23, 2006, at which time the state filed an unsigned information setting forth the charges against the defendant. The defendant then appeared in court on November 30, 2006, where he elected to proceed to trial as a self-represented litigant and refused to enter a plea. The court recorded the plea as not guilty and noted a jury trial election. On January 25, 2007, the parties appeared in court for a scheduled pretrial, but the state requested a continuance so it could contact a witness. In response, the court continued the matter to March 15, 2007. On March 15, 2007, the state offered to enter a nolle prosequi if the defendant agreed to attend counseling with his wife, but the defendant opted instead to proceed to trial. In response, the court placed the case on the one hour notice trial list. ³ Thereafter, there was no activity in the case from March 15, 2007, until March 31, 2011, when the court canvassed the defendant regarding his decision to proceed without counsel. The record reveals no reason for the four year gap in proceedings. Shortly thereafter, the defendant filed two motions to dismiss on different grounds. In the first motion, dated April 13, 2011, the defendant claimed that a nolle prosequi had entered by operation of law pursuant to General Statutes (Rev. to 2007) § 54–142a (c). The court concluded that § 54–142a (c) was only triggered by the continuation of a case at the request of the prosecution and as the record did not show that the delay was attributable to the prosecution, the court denied the defendant's first motion to dismiss. In the second motion, filed May 3, 2011, the defendant argued that the prosecutor's failure to sign the original information rendered the information defective such that the prosecution of his case did not begin within the one year statute of limitations. The court also denied the defendant's second motion noting that the state had filed a short form information, albeit unsigned, the day after the defendant was arrested. In an articulation filed by the court on May 10, 2012, the court stated that it “did not dismiss the case because it determined that the prosecuting authorities' failure to sign the information did not deprive the trial court of subject matter jurisdiction.” (Internal quotation marks omitted.)

“[This court's] review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.... Factual findings underlying the court's decision, however, will not be disturbed unless they are clearly erroneous.... The applicable legal standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Citation omitted; internal quotation marks omitted.) State v. Golodner, 305 Conn. 330, 338–39, 46 A.3d 71 (2012).

A

The defendant asserts that the court improperly denied his May 3, 2011 motion to dismiss, in which he claimed, among other things, that the prosecutor's failure to sign the original information, dated October 23, 2006, rendered the information defective such that the prosecution of his case did not begin within the one year statute of limitations ⁴ as required by General Statutes (Rev. to 2007) § 54–193(b).⁵

At the outset, we note that a warrantless arrest constitutes the commencementof a criminal prosecution against an arrestee for statute of limitation purposes. See State v. Thrall, 39 Conn.Supp. 347, 350, 464 A.2d 854 (1983). Accordingly, the defendant's warrantless arrest on the same day as the offenses are alleged to have been committed by him was a “timely prosecution of the defendant” within the one year statute of limitations. See id. Secondly, whether the original information was signed by the prosecutor is irrelevant for purposes of determining whether a...