State v. Wall

• Decision Date: 19 March 1996
• Docket Number: No. 12765,12765
• Citation: 673 A.2d 530,40 Conn.App. 643
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Mark T. WALL.

Page 530

673 A.2d 530

40 Conn.App. 643

STATE of Connecticut v. Mark T. WALL.

No. 12765.

Appellate Court of Connecticut.

Argued Oct. 26, 1995.

Decided March 19, 1996.

Richard E. Hayber, Special Public Defender, for appellant (defendant).

Leon F. Dalbec, Jr., Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Ronald M. Dearstyne, Assistant State's Attorney, for appellee (State).

Before DUPONT, C.J., and LAVERY and SPEAR, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal impersonation in violation of General Statutes § 53a-130(a)(3), disorderly conduct in violation of General Statutes § 53a-182(a)(2), reckless driving in violation of General Statutes § 14-222(a), reckless endangerment in the first degree in violation of General Statutes § 53a-63(a) and reckless endangerment in the second degree in violation of General Statutes § 53a-64. On appeal, the defendant claims that (1) the trial court improperly denied him both a statutory and constitutional right to a speedy trial and a constitutional right to a speedy sentencing after conviction, (2) the state failed to prove an element of criminal impersonation, (3) the trial court improperly instructed the jury, (4) the trial court improperly prohibited the testimony of witnesses, and (5) the sentence constituted cruel and unusual punishment. We affirm the judgment of conviction.

The jury heard evidence from which the following facts reasonably could have been found. On September 28, 1989, at about 4:30 p.m., two cars resembling police cruisers were in pursuit of a person on a dirt bike in the town of Plymouth. The defendant and a second individual were driving at a high rate of speed in cars equipped with flashing lights, radio antennas, sirens and alternating or "wig-wag" headlights. The defendant and the other driver, traveling at speeds of over 50 mph, came within several feet of hitting a small boy and traveled in residential areas where children were playing on or near the road. The defendant and the other driver left the area after they failed to apprehend the driver of the dirt bike. The defendant was never a member of the Plymouth police department, the Connecticut state police, or the Litchfield county sheriff's department.

The jury found the defendant guilty of all charges on August 13, 1991, and the trial court sentenced him on June 30, 1993. ¹

I

STATUTORY AND CONSTITUTIONAL CLAIMS

A Speedy Trial

The defendant argues that the trial court improperly denied his motion to dismiss and motion for judgment of acquittal which he based on his alleged failure to receive a speedy trial within the requisite statutory period. ² On April 13, 1990, the defendant was placed under arrest ³ and released soon after. The defendant filed a number of motions after his arrest, and on April 19, 1991, a little over one year from the arrest, he filed a motion for a speedy trial. On May 14, 1991, the trial court advised the parties that jury selection would commence the following day. Defense counsel informed the court, however, that he would be unavailable until the following week. ⁴ On May 29, 1991, the defendant filed a motion to dismiss The trial court based its denial of the defendant's motion to dismiss for lack of a speedy trial on a finding that the defendant had waived his statutory right to a speedy trial when he sought a postponement of the trial's commencement in order for counsel to attend a personal function. The defendant argues that the trial court improperly found that he waived his statutory right to a speedy trial because, although he agreed to a tolling of the period, he did not consent to a continuance to a time convenient for the court's docket. Because we find that the filing of the motion for a speedy trial was improper because it was untimely, we need not determine whether the defendant's actions constituted a waiver of his statutory right to a speedy trial.

claiming a violation of his statutory [40 Conn.App. 648] right to a speedy trial. The trial court denied the motion. Voir dire commenced on June 12, 1991.

Pursuant to Practice Book § 956D, "[i]f the defendant is not brought to trial within the applicable time limit set forth in Secs. 956B and 956C, and a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice, on motion of the defendant filed after the expiration of such thirty day period...." Practice Book § 956B(b) ⁵ requires that a defendant who is not incarcerated be brought to trial within twelve months after his arrest or the filing date of the information, whichever is later, excluding any time as allowed under Practice Book § 956C. As a prerequisite to filing a motion for a speedy trial, the time limitations set forth in § 956B, excluding certain time periods in accordance with § 956C, must have expired.

The defendant failed to discount any excludable time in calculating the date that he could have filed a motion for a speedy trial. The defendant was arrested on April 13, 1990, and was released shortly thereafter. The trial court entertained several pretrial motions made by the defendant. Section 956C provides that excludable periods of time are "(a) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to ... (4) the time between the commencement of the hearing on any pretrial motion and the issuance of a ruling on such motion; (5) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the judicial authority...." ⁶

It is evident from the transcripts provided and the trial court file that several motions were filed after the defendant's arrest. The defendant filed motions to dismiss, for a bill of particulars, for disclosure and production, for access to the file of a codefendant, to suppress certain statements of others, and for return of the car allegedly driven by the defendant in the course of committing the crime. Hearings were held on May 11, 1990, July 13, 1990, August 13, 1990 and March 19, 1991. The transcript of the hearing on March 19, 1991, indicates that it was to be continued to another date, but no other transcript is on file with this court. On March 19, 1991, the trial court ordered the defendant to fax relevant cases to the court on March 20, 1991, and continued the hearing to another date. Whether those cases were in fact given to the court is unknown. The trial court, without written decision, denied all the motions on June 14, 1991. Five days are excluded in accordance with § 956C(a)(4) because of the hearings that were held and the court's request for cases from the defendant. In addition, the time for the trial court's issuance of its rulings on the motions, must also be excluded, up to thirty days. Practice Book § 956C(a)(5). The pretrial motions resulted, therefore, in at least a total of thirty-five days of excludable time.

The twelve month time period, as calculated by the requirements of the rules of practice had not expired when the defendant filed his motion for a speedy trial. The earliest date the defendant could have filed his motion for a speedy trial was May 19, 1991. He filed it on April 19, 1991, and therefore, it was not timely. We affirm the denial of the motion because, as a matter of law, the denial was mandated by the applicable statutes and rules. See State v. Brown, 40 Conn.App. 483, 485-87, 671 A.2d 1316 (1996); State v. Green, 38 Conn.App. 868, 875, 663 A.2d 1085 (1995).

Where the trial court reaches the correct result on a basis different from that determined on review to support that result, we will sustain the trial court's action. See State v. Geyer, 194 Conn. 1, 17, 480 A.2d 489 (1984) (Shea, J., concurring); State v. Green, supra, 38 Conn.App. at 875, 663 A.2d 1085. We do not decide, therefore, whether the trial court was correct in determining that the defendant had waived his statutory right to a speedy trial because the trial court's decision to deny the defendant's motion was correct for other reasons as a matter of law.

The defendant also asserts that his constitutional right to a speedy trial was violated. "The Supreme Court of the United States and this court have identified four factors which form the matrix of the defendant's constitutional right to speedy adjudication: '[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.' Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182 [2192], 33 L.Ed.2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980). A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant's right was violated. State v. Nims, supra, [at] 591-92 ". State v. Johnson, 190 Conn. 541, 544-45, 461 A.2d 981 (1983).

The defendant has failed to provide an analysis of any of the Barker factors; see State v. Mozell, 37 Conn.App. 574, 580-81, 657 A.2d 686, cert. denied, 234 Conn. 910, 660 A.2d 355 (1995); and merely states that the fourteen month delay between the date of his arrest and the beginning of his trial prejudiced his defense. "The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192; see also Pelletier v. Warden, 32 Conn.App. 38, 47, 627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694 (1993). Our courts have not held that any particular length of delay is...