State v. Perez

• Decision Date: 23 March 2004
• Docket Number: (AC 23457)
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. DANIEL PEREZ

82 Conn. App. 100

842 A.2d 1187

STATE OF CONNECTICUT v. DANIEL PEREZ¹

(AC 23457)

Court of Appeals of Connecticut.

Argued September 18, 2003.

Officially released March 23, 2004.

West, DiPentima and McLachlan, JS.² Francis T. Mandanici, assistant public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Michael Dearington, state's attorney, and, on the brief, Maxine V. Wilensky, assistant state's attorney, for the appellee (state).

Opinion

WEST, J.

The defendant, Daniel Perez, filed a motion requesting that this court reconsider en banc our decision in State v. Perez, 80 Conn. App. 354, 835 A.2d 84 (2003). Although the court denied the defendant's motion for reconsideration en banc, this panel decided to grant reconsideration, sua sponte, and to publish this opinion in place of State v. Perez, supra, 354, for the purpose of clarifying our previous decision. We once again affirm the judgment of the trial court.

The defendant appeals from the judgment of conviction rendered by the trial court subsequent to his plea of nolo contendere to the charge of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss due to selective prosecution and (2) denied his request for an evidentiary hearing on the same issue. The defendant asserts that the court's decisions were improper because he made a prima facie showing that both prongs of the test for selective prosecution were satisfied.³ We are not persuaded.

At the oral argument on the defendant's motion to dismiss and request for an evidentiary hearing, the defendant made an offer of proof. The offer of proof contained the following documents: police reports from the accident, state and local police pursuit policies, the state's brief from the case of State v. Scribner, 72 Conn. App. 736, 805 A.2d 812 (2002), and a notice of intent to sue and civil complaint with which the guardian of the defendant's victim brought suit against the city of Meriden and several Meriden police officers.⁴ The court accepted the defendant's offer of proof "as being, in fact, the circumstances that exist, the police report, the fact that the police officers in the city of Meriden have been sued by the family of the victim,⁵ [and] the high speed pursuit policies of both the State and Meriden." After "accepting ... every bit of [his] offer of proof," however, the court concluded that it was "quite clear in [its] mind" that the defendant had not made out a prima facie case of selective prosecution. Accordingly, the court denied his motion to dismiss and his request for an evidentiary hearing.

The following relevant facts were contained in the defendant's offer of proof.⁶ On May 28, 2000, the Berlin police department attempted to stop and approach the vehicle being driven by the defendant after discovering that it was displaying a stolen marker plate. A Berlin police officer stopped the vehicle, and, as he approached the vehicle, the defendant sped away in an apparent attempt to flee. The officer pursued the vehicle to no avail. As the chase neared the Meriden town line, the Berlin police department notified the Meriden police department of the chase and of the fact that the defendant was approaching the town line. The Berlin police department abandoned the chase when the defendant reached Meriden.

Once the defendant was in Meriden, a Meriden police officer discovered the defendant driving southbound in a northbound lane. The officer observed the defendant changing back and forth between the northbound and southbound lanes, almost striking vehicles head on and forcing northbound vehicles off the road. The officer estimated that the defendant had been driving in that manner for approximately four miles since the Berlin police department abandoned its pursuit. At that time, a second pursuit began between the Meriden police officer and the defendant, who failed to yield and continued to flee in a dangerous manner.

Throughout the pursuit, the defendant drove approximately sixty to seventy miles per hour through a densely populated thirty-five mile per hour zone. The defendant repeatedly drove on the wrong sides of the road and median, forcing traffic onto the sidewalk and into oncoming traffic. Several Meriden police officers assisted with the pursuit by attempting to warn oncoming traffic of the defendant and by trying unsuccessfully to guide him onto a highway and away from the densely populated area.

The pursuit ended when the defendant, while traveling southbound in a northbound lane, struck a vehicle whose driver was attempting to turn left. The driver of the vehicle suffered severe personal injuries, including massive head and brain injuries, neurological injuries, and massive pelvic and internal injuries. At the scene of the crash, the Meriden police officers found the defendant trying frantically to escape the vehicle in an apparent attempt to flee on foot. The officers also discovered two passengers in the defendant's vehicle, one of whom was yelling at the defendant for having ignored the passenger's requests to stop the chase.

The defendant was charged with two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (3), and two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and (3), as well as with numerous motor vehicle violations. The defendant filed a motion to dismiss the prosecution on the ground of selective prosecution and requested an evidentiary hearing on the issue. The court denied both the defendant's motion and his hearing request. The defendant thereafter pleaded nolo contendere to one count of assault in the first degree in violation of § 53a-59 (a) (3) and was sentenced to twenty years imprisonment, execution suspended after ten years. The defendant's plea was conditional on his right to appeal, pursuant to General Statutes § 54-94a and Practice Book § 61-6, from the denial of his motion to dismiss. The defendant appealed to this court.

I

The defendant first claims that the court improperly denied his motion to dismiss on the ground of selective prosecution because (1) the Meriden police officers were similarly situated relative to him but were not prosecuted, and, therefore, he was selectively prosecuted, and (2) he was the victim of invidious discrimination on the basis of his status as a nonpolice officer.

"We must first consider the standard of review where a claim is made that the court failed to grant a motion to dismiss. Our standard of review of a trial court's... conclusions of law in connection with a motion to dismiss is well settled.... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts .... Thus, our review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) State v. Vitale, 76 Conn. App. 1, 14, 818 A.2d 134, cert. denied, 264 Conn. 906, 826 A.2d 178 (2003).

The test for selective prosecution is well settled. "A defendant claiming discriminatory prosecution must show (1) that others similarly situated have generally not been prosecuted and that he has been singled out and (2) that he is the victim of invidious discrimination based on impermissible considerations such as race, religion, or the exercise of a constitutionally protected right." (Internal quotation marks omitted.) State v. Angel C., 245 Conn. 93, 127, 715 A.2d 652 (1998). In determining whether two groups are similarly situated for equal protection purposes, we must look for "persons situated similarly in all relevant aspects...." (Emphasis in original; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 402, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). "[W]e have traditionally accorded the state's attorney broad discretion in determining what crime or crimes to charge in any particular situation.... And unless constitutional or other compelling reasons require otherwise, we abstain from setting policy for the performance of the prosecutorial function." (Citation omitted; internal quotation marks omitted.) State v. Ellis, 197 Conn. 436, 478, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990).

A

We first address the issue of whether the Meriden police officers and the defendant were "similarly situated" in satisfaction of prong one of the test for selective prosecution. In support of his claim as to that prong, the defendant argues that the officers, as well as the defendant, were violating the law by speeding and driving on the wrong side of the road, that the officers are not immune from criminal liability because the chase violated state and local pursuit guidelines, and that the officers were the proximate cause of the accident because had they not pursued him, no accident would have resulted. To make that determination, we must consider and weigh the similarities and differences between the two groups to determine whether they are situated similarly in all relevant aspects. See Thomas v. West Haven, supra, 249 Conn. 402.

In this case, the relevant differences between the groups far outweigh the relevant similarities. The only similarity shared by the defendant and the Meriden police officers is the fact that both groups exceeded the speed limit and drove into oncoming traffic during a police pursuit. Looking now to their relevant differences, we have, on the one hand, a criminal suspect in possession of stolen property, fleeing from law enforcement officials, leading officers from two police departments on a high speed chase through a densely populated area and into oncoming traffic. We have, on...