State v. Rosado

• Decision Date: 06 May 2008
• Docket Number: No. 26322.,26322.
• Citation: 945 A.2d 1028,107 Conn.App. 517
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ehson ROSADO.

945 A.2d 1028

107 Conn.App. 517

STATE of Connecticut v. Ehson ROSADO.

No. 26322.

Appellate Court of Connecticut.

Argued February 14, 2008.

Decided May 6, 2008.

Raymond L. Durelli, special public defender, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Anthony Bochicchio, senior assistant state's attorney, for the appellee (state).

FLYNN, C.J., and BEACH and HENNESSY, Js.

BEACH, J.

The defendant, Ehson Rosado, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59(a)(5), and criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1). On appeal, the defendant claims that the trial court (1) improperly denied his motion to dismiss for lack of a speedy trial, (2) abused its discretion in denying his motion to sever, improperly admitted into evidence five shell casings and (4) violated his right to due process by its improper jury instructions. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 26, 2003, at approximately 1 a.m., Derrick Dickens, an acquaintance of the defendant, approached a four way stop on Irving Place in Danbury. As he was doing so, a white Chevrolet Malibu stopped at an angle in the middle of the intersection, thereby blocking Dickens' path. The defendant got out of the passenger side of the Malibu and approached Dickens' car. Dickens saw a chrome object in the defendant's hand and, believing the object to be a handgun, tried to drive away. In order to do so, he hit the front driver's side of the Malibu with the passenger side of his car. As Dickens hit the Malibu, the defendant, who was standing approximately one foot away at the time, fired a gunshot that hit the side of Dickens' car. As Dickens drove away, he heard approximately five additional gunshots fired. As a result of this incident, Dickens' car sustained bullet holes.

Four days later, on May 30, 2003, Dickens drove to the house of his girlfriend in a different car and stood outside the house talking to her. As Dickens was about to leave, he saw the defendant being dropped off in front of the house. As Dickens watched the defendant walk up the driveway, a gun fell from the defendant's waistband. When Dickens saw the gun, he yelled to his girlfriend to clear everyone away, got into his car and drove away through the backyard. He thereafter reported both incidents to the police.

The defendant subsequently was charged in an amended long form information with attempt to commit assault in the first degree, criminal possession of a firearm and breach of the peace in the second degree in violation of General Statutes § 53a-181(a)(1). After a trial to the jury, the defendant was convicted on all counts. The defendant thereafter filed a motion for a judgment of acquittal, which the court granted as to the third count of the amended information, breach of the peace in the second degree. The defendant was sentenced to a total effective term of eighteen years incarceration consecutive to a sentence he was then serving. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to dismiss for lack of a speedy trial. We disagree.

The following additional facts are relevant to our resolution of the defendant's claim. While incarcerated on other charges, the defendant received notice, dated February 4, 2004, that the present charges were pending against him and that he had the right to request a final disposition of the charges. The defendant, acting pro se, signed the acknowledgement of receipt of notification and requested a trial on those charges but did not date his signature. The defendant filed a pro se motion to dismiss on speedy trial grounds dated July 22, 2004, which alleged that on February 10, 2004, he had filed notice of a request for a speedy trial and had not been tried within the mandated 120 days.

On August 31, 2004, the defendant, through counsel, filed a motion to dismiss on speedy trial grounds, alleging that he had filed a motion for a speedy trial as an incarcerated prisoner on February 5, 2004. Jury selection commenced on September 2, 2004.¹ The parties argued the defendant's motion to dismiss on September 8, 2004. During argument, the state averred that it had not received notice of the defendant's speedy trial request. The court reserved ruling on the motion. The parties argued the motion again at sentencing on January 13, 2005, at which time the court denied the motion. The court, in a subsequent articulation of its memorandum of decision on the defendant's motion to dismiss for lack of a speedy trial,² found that the filing of the notice of the defendant's request for a speedy trial was defective in that the defendant failed to cause to be delivered to the state's attorney or assistant state's attorney of the Danbury judicial district a written notice of the place of his imprisonment and his request for a final disposition of the information in the case, as required by General Statutes § 54-82c(a).³

The defendant argues that the reason for the failure of notice to the state's attorney was either malfeasance or negligence of either the warden or the state's attorney and, accordingly, the 120 day period within which § 54-82c requires that he be brought to trial commenced on February 23, 2004, the day on which the certified mail receipt indicates that the defendant's request was received by the Danbury clerk's office.⁴ The state responds that because a copy of the defendant's speedy trial request was not delivered to the state's attorney, as required by § 54-82c, the 120 day period did not commence. We must decide whether the 120 day period ever commenced under § 54-82c if the state's attorney failed to receive notice, regardless of whether notice was not received because of negligence or malfeasance on the part of the warden or the office of the state's attorney.

Our resolution of the defendant's claim involves questions of statutory interpretation. Accordingly, our review is plenary. See State v. McCahill, 265 Conn. 437, 446, 828 A.2d 1235 (2003).

We begin our analysis with a brief overview of the speedy trial statutory scheme. "General Statutes §§ 54-82c and 54-82d⁵ provide a statutory method by which an inmate of a Connecticut penal institution who has a detainer placed against him can request and receive an expedited disposition of pending charges. The inmate must be serving a sentence at that time in order to have the procedure available to him. General Statutes § 54-82c(a). . . . Eligible inmates are entitled to a trial within 120 days or to a dismissal of the pending charges, if they follow the procedure outlined in the statutes. First, the inmate must request an expedited hearing under the statutes by giving written notice to the `warden, community correctional center administrator or other official having custody of him. . . .' General Statutes § 54-82c(b). The prison official must then forward the request by certified mail to the `appropriate prosecuting official and court,' together with a certificate `stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner.' General Statutes § 54-82c(a). If the procedure is complied with and the case is not assigned for trial within 120 days, then the charges must be dismissed. General Statutes § 54-82d. The trial court may, however, toll the 120-day period by granting, for good cause shown, `any necessary or reasonable continuance.' General Statutes § 54-82c(a)." (Citations omitted.) State v. Toste, 198 Conn. 573, 585-87, 504 A.2d 1036 (1986).

The clear statutory language of § 54-82c(a) guides our resolution of the defendant's claim and provides, in relevant part, that a prisoner who has any untried indictment or information against him "shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state's attorney . . . and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. . . ." (Emphasis added.) General Statutes § 54-82c(a).

When applying § 54-82c, our Supreme Court has "required strict compliance with the statutory notice procedures." State v. Toste, supra, 198 Conn. at 588, 504 A.2d 1036; see also State v. McCarthy, 197 Conn. 166, 496 A.2d 190 (1985) (running of 120 day period not commenced until both court and state's attorney notified); State v. Best, 171 Conn. 487, 370 A.2d 1035 (1976) (same); State v. Springer, 149 Conn. 244, 178 A.2d 525 (1962) (same). "[General Statutes § 54-82c] clearly contemplates delivery to the state's attorney and the court before the 120-day period will begin to run." (Emphasis added.) State v. Best, supra, at 491, 370 A.2d 1035 (interpreting former General Statutes § 54-139, now § 54-82c). "[U]nder [§ 54-82c], the act required to be done in order to start the running of the period of 120 days is the delivery of the prisoner's request, accompanied by his custodian's certificate, to the prosecuting official of the county and the appropriate court. Obviously, a prisoner confined in a penal or correctional institution could not be required to make personal delivery. The General Assembly has therefore provided that the prisoner initiate the request for a trial, has required further that his custodian supply information concerning the prisoner's confinement to the prosecuting official and the court, and has then prescribed the procedure...