State v. Rosario

Opinion

The defendant, Allen Rosario, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes (Rev. to 2005) § 53a-101 (a) (l), 1 burglary in the second degree in violation of General Statutes (Rev. to 2005) § 53a-102 (a) (l), 2 burglary in the third degree in violation of General Statutes § 53a-103 3 and robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). 4 On appeal, the defendant claims that the court improperly denied his motion to dismiss because his statutory and constitutional right to a speedy trial was violated. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The events in question occurred during the early *392 morning hours of December 24 and 25, 2005. On the evening that began on December 23, 2005, Michael Dalenta, Adam Friedman and Jonathan Bard, three roommates living in a second floor apartment located at 34 Depot Street in East Windsor, entertained friends for a Christmas party at their apartment. Shortly after midnight, a guest who had stepped out onto the balcony to make a cellular telephone call observed the defendant inside Bard’s car, which was located ten feet below the balcony. The guest yelled to the defendant to “get out of the car,” at which point the defendant exited the vehicle and began walking away. The guest immediately shouted to the three roommates that someone was breaking into Bard’s car. The three roommates and several guests ran down the street in chase and caught up with the defendant, whom they detained until police arrived. Bard’s car door was open and his CD case was found in a nearby snowbank. Jeffrey Capen, an East Windsor police officer, arrived and upon investigation, placed the defendant under arrest. The defendant was found to be in possession of a small folding knife, which was confiscated. Friedman testified that shortly after the defendant was placed in the police cruiser, the defendant yelled to the roommates “angry, threatening things” such as, “I’ll be back, this doesn’t stop me, don’t think you’re safe.” The defendant was booked at the police station and eventually released after being told not to have any contact with the three roommates.

The next evening, December 24, 2005, Dalenta was alone at the roommates’ Depot Street apartment. Friedman and Bard were home for the Christmas holiday. At approximately 4 a.m., then Christmas morning, Dalenta was awakened by a banging sound coming from Bard’s room. Dalenta entered the bedroom and observed the defendant going through his roommate’s dresser. When Dalenta confronted the defendant, the defendant pulled a knife from his jacket and said, “you don’t know who *393 you’re effing with,” and immediately fled the apartment. Shortly thereafter, the police arrived with a canine unit that led police to the defendant’s home. Although the defendant denied having been the perpetrator of the burglary, he was identified by Dalenta and found to be in possession of items missing from the apartment, including $40 in loose change and a silver Paul Jardin watch. The defendant subsequently was arrested and remained in custody thereafter in lieu of bail.

The defendant was arraigned on December 27, 2005, and the case was presented in the part A courtroom on January 19, 2006. The case was the subject of multiple judicial pretrials until June 29, 2006, when the case was placed on the firm jury list. For the next several months, the defendant’s attorney was unavailable because he was trying a capital murder case. On May 7, 2007, the defendant filed a motion for a speedy trial and a motion to dismiss. A hearing on the motion to dismiss was held on May 23, 2007. On June 11, 2007, the court denied the defendant’s motion to dismiss and trial began. Additional facts and procedural history will be provided as necessary.

I

The defendant first claims that his statutoiy right to a speedy trial, pursuant to General Statutes § 54-82m, 5 *394 was violated. The defendant claims that the speedy trial procedures outlined in our rules of practice are contrary to § 54-82m. The defendant further argues that even if our rules of practice comply with this statute, the practices at the Hartford Superior Court are inconsistent with our rules and with the statute. We disagree.

Section 54-82m authorizes the judges of the Superior Court to make rules of procedure to ensure that defendants receive a speedy trial. The statute states that any corresponding rules must require that trial takes place within twelve months after a defendant is charged with a crime, except that if a defendant is incarcerated while awaiting trial, the trial must occur within eight months. The statute further provides that the charges against a defendant must be dismissed if that defendant is not brought to trial within thirty days of a motion for a speedy trial filed after the expiration of the eight or twelve month time period, minus excludable time. Practice Book §§ 43-39, 43-40 and 43-41 6 provide a strict *395 liability form of protection for a defendant’s right to a speedy trial.

“The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” (Internal quotation marks omitted.) State v. Cote, 101 Conn. App. 527, 532, 922 A.2d 322, cert. denied, 284 Conn. 901, 931 A.2d 266 (2007).

In this case, the speedy trial clock began to run when the defendant was arraigned, on December 27, 2005. 7 In ruling on the defendant’s motion to dismiss, the court found that the clock was stopped from January 27 until June 29, 2006, due to continuances that were either at *396 the request of the defendant or by agreement between the state and the defendant. The speedy trial clock resumed on June 29, 2006, and ran for another seven months pursuant to Practice Book § 43-39, until late January, 2007. 8 The defendant filed a motion for a speedy trial as well as a motion to dismiss on May 7, 2007, giving the state thirty days to try him. 9 For pin-poses of ruling on that motion, the court ruled that there was excludable time from May 23 until June 11, 2007, while the court considered the defendant’s motion. Trial officially began on June 11, 2007, within the thirty day requirement.

Considering the evidence available to this court, we cannot conclude that the defendant’s statutory right to a speedy trial was violated. The court’s memorandum of decision offered a thoughtful, well reasoned explanation of its denial of the defendant’s motion to dismiss. Moreover, the record provides no factual basis for the defendant’s claim that either the applicable provisions of our rules of practice conflict with § 54-82m, or that the Hartford Superior Court routinely treats all time before a plea offer as excludable time. Most importantly, neither claim has merit in this case. As such, we choose not to venture down the road of issuing advisory instructions beyond those enumerated in our rules of practice and General Statutes. 10

*397 II

The defendant also claims that his constitutional right to a speedy trial was violated. See U.S. Const., amend. VI; Conn. Const., art. I, § 8. This claim likewise fails.

The sixth amendment guarantee of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 386 U.S. 213, 223-24, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). This right also is guaranteed by the constitution of Connecticut, article first, § 8. “Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society.” (Internal quotation marks omitted.) State v. Mooney, 218 Conn. 85, 117, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

The Supreme Court of the United States and the Connecticut Supreme Court have identified four factors that form the matrix of the defendant’s constitutional right to speedy adjudication: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 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.” (Internal quotation marks omitted.) State v. *398 Lacks, 58 Conn. App. 412, 417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).

A

The Connecticut rules of practice set out specific time limitations within which a criminal trial must commence. Practice Book §§ 43-39 and 43-40. “Our courts have not held that any particular length of delay is presumptively prejudicial, but have stated that an extensive delay warrants an inquiry into the other factors of Barker. See, e.g., State v. Rodriguez, 47 Conn. App. 91, 100, 702 A.2d 906 (1997) (fourteen months), cert. denied, 243 Conn. 960, 705 A.2d 552 (1998); State v. Flowers, 198 Conn. 542, 544, 503 A.2d 1172 (1986) (eighteen months); State v. Gasparro, 194 Conn. 96, 100, 480 A.2d 509 (1984) (three and one-half years), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985); State v. Cleary, 3 Conn. App. 349, 350-51, 488 A.2d 831 (1985) (thirty-eight months). There is no constitutional basis for holding that the speedy trial right can be quantified into a specific number of days or months. Barker v. Wingo, supra, 407 U.S. 523; State v. Ortiz, 252 Conn. 533, 569, 747 A.2d 487 (2000). Although no exact length of time has been established as sufficient to presume prejudice, a delay of approximately seventeen months is sufficient to warrant investigation into the other factors of Barker.

B

The second factor under the Barker matrix concerns the reasons for the delay of trial. Here, there was approximately a seventeen month time interval between the defendant’s arrest and his trial. “In examining the reason for the delay, we focus on whether the state was making a deliberate attempt to delay the trial in order to hamper the defense or whether there existed a valid reason . . . [that] should serve to justify appropriate delay.” (Internal quotation marks omitted.) State *399 v. Brown, 40 Conn. App. 483, 489, 671 A.2d 1316 (1996), aff'd, 242 Conn. 389, 699 A.2d 943 (1997).

There are two principal explanations for the seventeen month delay in this case. Foremost, between Januaiy 26 and June 29, 2006, continuances were requested either by the defendant or jointly by the defendant and the state. See State v. Gaston, 86 Conn. App. 218, 227-28, 860 A.2d 1253 (2004) (“[A] significant reason for the delay of the trial was caused by the defendant’s requests for continuances. . . . [I]t was the actions of the defendant, rather than those of the state, that resulted in the delay of the trial. Accordingly, this factor weighs against the defendant.” [Citation omitted; internal quotation marks omitted.]), cert. denied, 273 Conn. 901, 867 A.2d 840 (2005).

Second, between June 29, 2006, and February 1, 2007, the defendant’s attorney was unavailable because he was trying a capital murder case. This time weighs against the defendant as excludable time, pursuant to Practice Book § 43-40 (2). See State v. Brown, supra, 40 Conn. App. 489 (holding that trial court properly delayed defendant’s trial where defendant’s attorney had another trial because commencing trial without attorney would have deprived defendant of constitutional right to effective assistance of counsel).

The evidence weighs strongly that the reasons for delay were not a result of the state’s actions but, rather, the actions of the defendant.

C

The third Barker factor is the assertion by the defendant of his right to a speedy trial. On May 7, 2007, seventeen months after his arrest and nine days before trial would have commenced, 11 the defendant filed a *400 motion for a speedy trial, along with a motion to dismiss. This factor militates against the defendant’s claim. “The failure to assert the right, while not constituting a waiver, does make it difficult for the defendant to prove that he was denied a speedy trial.” State v. Lacks, supra, 58 Conn. App. 419. While it should be noted that the defendant, on June 26, 2006, complained to the court that his lawyer had not yet filed a motion for a speedy trial, such a motion at that time would not have been ripe. Likewise, because the defendant’s trial commenced within thirty days of filing his motion for a speedy trial, 12 his assertion of his right to a speedy trial is afforded little weight in the Barker balancing test.

D

The final Barker factor, prejudice to the defendant, is the linchpin of the speedy trial claim. Id. “[Ujnlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself. . . . The right to a speedy trial is designed (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. ... In Barker . . . the court noted that of the three interests served by the right to speedy trial, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” (Citations omitted; internal quotation marks omitted.) State v. Rodriguez, supra, 47 Conn. App. 102-103.

*401 Here, the defendant argues solely that the delay resulted in a breakdown of the attorney-client relationship. At the hearing on his motion to dismiss, the defendant stated that he did not feel comfortable with his attorney’s representation and, most notably, voiced his belief that public defenders are paid a commission to “plead out” their clients. At no point did the defendant offer any testimony that would indicate the delay itself was the cause of friction between himself and his attorney, other than the vague claim that he had requested his attorney to “do certain things for [him] and [he] wouldn’t do them.” On the basis of the evidence presented, we are not persuaded that the delay prejudiced the defendant’s relationship with his attorney.

On the basis of our consideration of the four Barker factors, we conclude that the defendant was not denied his constitutional right to a speedy trial. The court properly denied his motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.