State v. Smith

Decision Date25 November 2008
Docket NumberNo. 17731.,17731.
Citation960 A.2d 993,289 Conn. 598
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Lawrence SMITH.

Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James G. Clark, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.

KATZ, J.

The defendant, Lawrence Smith, appeals1 from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a (a)2 and 53a-8 (a),3 felony murder in violation of General Statutes §§ 53a-54c4 and 53a-8 (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a)5 and 53a-54a, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a)(2)6 and 53a-48 (a), and hindering prosecution in the first degree in violation of General Statutes § 53a-165 (5).7 On appeal, the defendant contends that the trial court: (1) violated his right to a speedy trial when it improperly denied his motion to dismiss the charges against him following the entry of a nolle prosequi of the state's initial charges; and (2) violated both his constitutional rights under the confrontation clauses of the federal and state constitutions and the rules of evidence when it admitted into evidence a recorded conversation between a coconspirator and a jailhouse informant that implicated the defendant in the crimes charged. We reject the defendant's claims and, accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 21, 2000, Robert Marrow and Jonathan Rivers, acting on the orders of Miguel Estrella, a drug dealer in Meriden, met the victim, Juan Disla, who was a rival drug dealer, at a Dairy Queen in Meriden to rob him. During the course of the robbery, Marrow shot the victim in the leg. Marrow contacted Estrella for instructions and was told to drive to the defendant's house. Marrow and Rivers took the victim, whom they had bound with duct tape, to the defendant's house, where Estrella and the defendant removed money and cocaine from the victim's vehicle. Thereafter, the defendant, Estrella, Rivers and Marrow drove the victim to a remote location in a wooded area in the Higganum section of Haddam, where the victim was suffocated to death. The four men left the victim's body in the woods and returned to Meriden. That evening, Estrella, Marrow, Rivers and some friends drove the victim's car to New York state and abandoned it on the highway, where it eventually was vandalized.

The state also offered evidence, which the defendant unsuccessfully challenges in this appeal, to establish the following additional facts. Two days after the murder, Estrella and the defendant returned to the location of the victim's body with a chainsaw, plastic buckets and several containers of acid. The defendant used the chainsaw to dismember the body while Estrella watched. The defendant and Estrella then placed the body parts in the buckets and covered them with acid to destroy them. The defendant subsequently disposed of any remains. The victim's body was never recovered, and no bloodstains, DNA or bones ever were found.

The record reflects the following procedural history. In 2001, the defendant was arrested in connection with the murder of the victim. He was charged with conspiracy to commit murder in violation of §§ 53a-48 (a) and 53a-54a, and kidnapping in the first degree in violation of General Statutes § 53a-92.8 On December 5, 2001, after the defendant had moved for a speedy trial, the state entered a nolle prosequi of the charges pursuant to the missing witness provision of General Statutes § 54-56b9 and Practice Book § 39-30.10 The state represented that Estrella, an essential witness in the case, was asserting his fifth amendment privilege against selfincrimination and therefore would be unavailable to testify. The defendant filed a motion to dismiss the charges on the ground, inter alia, that he had been denied a speedy trial. The court, Fasano, J., denied the motion, and thereafter, the defendant was released from custody.

Pursuant to a warrant dated March 9, 2005, the defendant subsequently was rearrested in connection with the murder of the victim. He was charged in a long form information with murder, felony murder, conspiracy to commit murder, conspiracy to commit robbery in the first degree and hindering prosecution in the first degree. The defendant pleaded not guilty and, after a jury trial, was found guilty of all the charges. In accordance with the verdict, the trial court, Alexander, J., imposed a total effective sentence of seventy-five years imprisonment. This direct appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant's first claim is that the trial court improperly denied his motion to dismiss in violation of his right to a speedy trial under the sixth amendment to the federal constitution.11 The defendant raises the following theories to support this claim: (1) in accepting the state's entry of a nolle prosequi, the trial court improperly relied on the state's representation that its essential witness would be rendered unavailable because the witness intended to invoke his fifth amendment privilege against self-incrimination; (2) the trial court failed to recognize that this court's holding in Cislo v. Shelton, 240 Conn. 590, 692 A.2d 1255 (1997), required that the court construe the entry of the nolle prosequi as functionally equivalent to a dismissal of all charges, thereby precluding the refiling of charges arising from the same factual scenario several years later; and (3) the trial court improperly failed to apply the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which would have established that the defendant's right to a speedy trial was violated. In response, the state contends that: (1) the trial court properly entered the nolle prosequi under the missing witness provision because it was entitled to rely on the state's representation that its essential witness had become unavailable based on the witness' intent to invoke his fifth amendment privilege against self-incrimination;12 (2) the holding in Cislo does not compel a trial court to construe a nolle prosequi as the functional equivalent of a dismissal "with prejudice," and in any event the state was not precluded from bringing charges against the defendant on previously uncharged crimes; and (3) the defendant's right to a speedy trial was not violated under Barker. We disagree with the defendant's first two claims and decline to reach the third claim because the record is inadequate for review.

The following additional undisputed facts and procedural history are relevant to our resolution of the speedy trial claim. As we previously have indicated, following the state's nolle of the charges against the defendant on the basis of a representation from Estrella's defense counsel that Estrella was unavailable because he intended to invoke his fifth amendment privilege against self-incrimination if called to testify, the court denied the defendant's motion to dismiss the charges and ordered that he be released.13 When the defendant subsequently was arrested in 2005 in connection with Disla's murder, the state charged him again with conspiracy to commit murder and also charged him with murder, felony murder, conspiracy to commit robbery in the first degree and hindering prosecution in the first degree. On May 5, 2005, the defendant moved to dismiss the charges, claiming that his right to a speedy trial had been violated because the state first had charged him with crimes in connection with Disla's murder four years previously and, through the entry of the nolle prosequi, indefinitely had postponed resolution of those charges. The defendant contended that, at the December 5, 2001 proceeding, the trial court improperly had accepted the state's representation that its essential witness was unavailable due to his anticipated assertion of his fifth amendment right to remain silent. The defendant asserted that the trial court was obligated to inquire further into the unavailability of the witness before it found him unavailable, noting that the state could have granted the witness immunity and thus rendered him available to testify by removing the threat of self-incrimination. Because the trial court had not done so, the defendant contended that it improperly had made a finding of unavailability, thereby rendering the entry of the nolle prosequi pursuant to § 54-56b improper. Further, the defendant contended that, in accordance with this court's holding in Cislo, the nolle effectively was transformed into a dismissal because more than thirteen months had elapsed since the entry of the nolle; see General Statutes § 54-142a (c);14 and such dismissal barred his reprosecution.

The trial court, Damiani, J., denied the defendant's motion to dismiss. The court gave the following reasons for its ruling. First, the state had made the necessary representations to allow the nolle prosequi to enter when it informed the court that the witness was unavailable on the basis of his assertion of his fifth amendment privilege against self-incrimination. The court stated that it was not necessary to compel a witness to appear formally and assert his right against self-incrimination to support the entry of the nolle, and that it was beyond the court's authority to compel the state to offer immunity to a witness, as the defendant had suggested. The nolle therefore properly had been entered in accordance with § 54-56b. Second, the court noted that, with respect to the holding in Cislo, the nolle would indeed, after...

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    • Connecticut Bar Association Connecticut Bar Journal No. 83, December 2009
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