State v. Wallace Brabham.

• Decision Date: 12 July 2011
• Docket Number: No. 18704.,18704.
• Citation: 21 A.3d 800,301 Conn. 376
• Parties: STATE of Connecticutv.Wallace BRABHAM.
• Court: Connecticut Supreme Court

301 Conn. 376

21 A.3d 800

STATE of Connecticut

v.Wallace BRABHAM.

No. 18704.

Supreme Court of Connecticut.

Argued Feb. 16, 2011.Decided July 12, 2011.

Annacarina Jacob, senior assistant public defender, for the appellant (defendant).Sarah Hanna, assistant state's attorney, with whom, on the brief, were John Smriga, state's attorney, and Margaret E. Kelley, senior assistant state's attorney, for the appellee (state).ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.ROGERS, C.J.

The defendant, Wallace Brabham, appeals ¹ from the judgment of conviction, rendered after a jury trial, of one count of burglary in the third degree in violation of General Statutes § 53a–103, and one count of attempt to commit larceny in the first degree in violation of General Statutes § 53a–49 and General Statutes (Rev. to 1999) § 53a–122. The dispositive issue in the present appeal is whether the defendant's appeal is barred under the common-law rule of fugitive disentitlement when the defendant fled Connecticut after his conviction but subsequently was found and rearrested. We conclude that all of the defendant's claims are barred by that rule, and, accordingly, we dismiss the defendant's appeal.

The record reveals the following facts and procedural history. On April 27, 1999, an architect went to his place of business, where he encountered the defendant in the drafting room. Upon being discovered, the defendant fled from the office. A police officer who responded to the scene found that two computers had been unplugged, and that their keyboards had been wrapped in their own wires and placed in a garbage can. The defendant was subsequently charged with the crimes of which he was ultimately convicted. Thereafter, the defendant failed to appear for an August 10, 2000 court date and was rearrested. On August 22, 2000, following a trial, the jury returned a verdict of guilty and the trial court subsequently rendered the judgment of conviction from which the defendant now appeals. After the jury returned its verdict, but before sentencing, the defendant posted bond and fled to London, England. As a result, the defendant failed to appear for sentencing on September 22, 2000. He later was rearrested and returned to Connecticut. The defendant's sentencing was set for March 26, 2004, but before that date, he once again posted bond and fled to London, England, and again, did not appear for sentencing. The defendant again was rearrested, and on November 18, 2008, he was sentenced to a total effective sentence of fifteen years imprisonment. This appeal followed.

On appeal, the defendant claims that: (1) the evidence introduced at trial was insufficient to establish that the computers he attempted to steal had a value of more than $10,000; (2) the trial court improperly failed to provide a cautionary instruction about identifications to the jury; (3) the trial court improperly denied the defendant's motion for a mistrial because irrelevant evidence related to witness identification was admitted at trial; (4) the trial court improperly allowed the state to cross-examine the defendant's alibi witnesses without laying a proper foundation; and (5) the defendant is entitled to a new trial because the photographic arrays used during the investigation, which are relevant to his second and third claims, have been lost, thereby prejudicing his right to meaningful appeal. The state contends that the entire appeal should be dismissed under the common-law fugitive felon disentitlement doctrine,² which allows an appellate court to dismiss the appeal of a party who flees subsequent to the felony conviction from which he appeals. See J. Joseph, “The Fugitive Dismissal Rule Applied to Pre–Appeal Fugitivity,” 84 J.Crim. L. & Criminology 1086, 1087 (1994). We agree with the state and, accordingly, we dismiss the defendant's appeal.

As a preliminary matter, the defendant argues that the state's request to have his appeal dismissed is not timely, and that we should deny it on that ground. We disagree. The defendant relies on Practice Book § 66–8, which provides in relevant part: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ ... within ten days after the filing of the appeal....” We conclude that this provision does not apply to a claim that an appeal should be dismissed under the fugitive felon disentitlement doctrine because the requested dismissal is not based on a jurisdictional defect, or due to the defendant's failure to file papers. A defect is a “want or absence of some legal requisite; deficiency; imperfection; insufficiency”; Black's Law Dictionary (4th Ed.1968) p. 506; and generally refers to a shortcoming in the form or content of a filing. See, e.g., DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 147–48, 998 A.2d 730 (2010) (describing as “defect” improperly named plaintiff in pleading). The state has not alleged any such procedural shortcoming in the present case but, instead, advances a substantive legal argument in support of its position that the claim is untimely. Accordingly, the state's claim that the appeal should be dismissed under the fugitive felon disentitlement doctrine is not within the ambit of Practice Book § 66–8 and is, therefore, timely.

We begin with a brief examination of the fugitive felon disentitlement doctrine, which is a common-law rule that permits, but does not require, appellate courts to dismiss appeals by fugitive defendants in certain circumstances. See, e.g., Degen v. United States, 517 U.S. 820, 824, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) (recognizing courts' “authority to dismiss an appeal or writ of certiorari if the party seeking relief is a fugitive”); Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) (discussing propriety of prior decisions “declining to review convictions” of fugitive felons in decision dismissing appeal by former fugitive restored to custody by time of appeal); Valle v. Commissioner of Correction, 244 Conn. 634, 638, 711 A.2d 722 (1998) ( Berdon, J., dissenting) (“[fugitive felon] disentitlement doctrine is not a hard and fast rule, and should be applied only” in certain circumstances); State v. Leslie, 166 Conn. 393, 395, 349 A.2d 843 (1974) (while flight “does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the [c]ourt for determination of his claims” [internal quotation marks omitted] ), quoting Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970).

Our review has revealed that there is not a universal approach to the fugitive felon disentitlement doctrine. Some jurisdictions allow discretionary dismissal of an appeal only when the defendant remains at large when the appeal is heard. See, e.g., State v. Gaylor, 158 N.H. 230, 235, 969 A.2d 333 (2009); Ortiz v. State, 862 S.W.2d 170, 173 (Tex.App.1993).

Other jurisdictions apply the fugitive felon disentitlement doctrine more broadly, also allowing under certain circumstances dismissal of appeals by former fugitives who have been returned to custody. See, e.g., Ortega–Rodriguez v. United States, 507 U.S. 234, 249, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993) (“[W]hile dismissal of an appeal pending while the defendant is a fugitive may serve substantial interests, the same interests do not support a rule of dismissal for all appeals filed by former fugitives, returned to custody before invocation of the appellate system. Absent some connection between a defendant's fugitive status and his appeal, as provided when a defendant is at large during the ongoing appellate process ... the justifications advanced for dismissal of fugitives' pending appeals generally will not apply. We do not ignore the possibility that some actions by a defendant, though they occur while his case is before the [trial] court, might have an impact on the appellate process sufficient to warrant an appellate sanction. For that reason, we do not hold that [an appellate court] is entirely without authority to dismiss an appeal because of fugitive status predating the appeal.” [Citation omitted; internal quotation marks omitted.] ); State v. Verikokides, 925 P.2d 1255, 1257 (Utah 1996) (dismissing appeal under fugitive felon disentitlement doctrine, where defendant had been restored to custody at time of appeal, but trial transcript had been lost during seven year flight).³

This court has dismissed appeals under the fugitive felon disentitlement doctrine on only three prior occasions. See Valle v. Commissioner of Correction, supra, 244 Conn. at 636, 711 A.2d 722; State v. Patterson, 236 Conn. 561, 581, 674 A.2d 416 (1996); State v. Leslie, supra, 166 Conn. at 395, 349 A.2d 843. Both Valle and Leslie were brief per curiam opinions dismissing under the fugitive felon disentitlement doctrine the appeals of defendants who, at the time of oral argument, were “still ... fugitive[s] whose whereabouts are un known....” State v. Leslie, supra, at 394, 349 A.2d 843.

Patterson similarly concerned a defendant who remained at large when the appeal was argued before this court. State v. Patterson, supra, 236 Conn. at 566, 674 A.2d 416. In Patterson, the state appealed from the Appellate Court's reversal of the defendant's conviction of drug-related charges. That reversal was based, in its entirety, on the Appellate Court's conclusion that the defendant was entitled, under the United States constitution, to a pre-sentence investigation report. Id., at 563–64, 674 A.2d 416. The state appealed, and despite the fact that the defendant was a fugitive at the time of argument before this court, we nevertheless addressed the constitutional issue, recognizing “the substantial public interest at...