In re A.B.

In re A.B.

No. AANCR180157961T

Superior Court of Connecticut, Judicial District of Ansonia-Milford, Milford

November 29, 2019

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Wilkerson Brillant, Donna M., J.

MEMORANDUM OF DECISION ON STATE’S MOTION FOR REARGUMENT

Wilkerson Brillant, J.

The state filed a motion to reargue the court’s decision, filed on July 2, 2019, granting the defendant’s motion to dismiss the state’s information because the prosecution was untimely. The court granted the state’s motion for reargument on July 31, 2019 in light of our Appellate Court’s decision in Roger B. v. Commissioner of Correction, 190 Conn.App. 817, 212 A.3d 693, cert. denied, 333 Conn. 929 (2019). The court finds that it has jurisdiction over a motion to reargue, but that the court should still grant the defendant’s motion to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

On December 22, 2009, officers from the Ansonia Police Department seized the defendant’s computers, storage media and a router pursuant to a search warrant of his residence. During the search and seizure, the defendant was aware that child pornography was the subject of the warrant. The defendant voluntarily signed a sworn statement in which he admitted to possessing child pornography and was fully cooperative with the police including providing them with passwords to his computers. On August 30, 2011, almost two years after the defendant’s admission, he moved to California, where he lived and worked openly under his own name, and possessed the same cell phone number he had while living in Connecticut. On April 15, 2013, the forensic lab returned a report confirming the presence of child pornography on his computer, and an arrest warrant was issued on May 22, 2013. The lead detective, Detective Tenney, found the defendant’s California address through the Lexis-Nexis law enforcement portal, and confirmed with the local California police department that the defendant still resided at that same address. Tenney requested extradition authorization, but it was denied. Tenney retired in September 2016. In 2018, the clerk of the Superior Court in Milford contacted the Ansonia Police Department to inquire about the status of the evidence and the arrest warrant. At that point Lieutenant Williams of the Ansonia Police Department received authorization for extradition. The defendant was arrested in California on March 15, 2018, and returned to Connecticut voluntarily.

The defendant filed a motion to dismiss arguing that prosecution was barred because the execution of the arrest warrant was unreasonably delayed pursuant to General Statutes § 54-193(h) which provides: "No person may be prosecuted for any offense, other than an offense set forth in subsection (a) of this section for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed." The defendant argued that pursuant to the unreasonable delay, continued prosecution violated his right to due process.

The defendant relied on our Supreme Court’s decision in State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987) (Crawford), and posited it as the proper framework to analyze the motion to dismiss. In Crawford, an arrest warrant, although issued within the statute of limitations period was not executed until after the limitation period had run. See id., 445. The state claimed that the prosecution was not time barred because it commenced when the arrest warrant was issued, not when it was executed. See id., 447. The defendant claimed, however, that the prosecution was time barred because it commenced when the arrest warrant was executed. See id. Our Supreme Court observed that the general rule is that the issuance of an arrest warrant commences a prosecution and satisfies the statute of limitations. See id., 448. The court, however, recognized that "in order to prevent the disadvantages to an accused attending stale prosecutions" there had to be some time limitation on the period during which the arrest warrant could be executed. Id., 450. Adopting the approach of the Model Penal Code, the court held: "[I]n order to [satisfy] the statute of limitations, an arrest warrant, when issued within the time limitations of § 54-193(b), must be executed without unreasonable delay ... We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to [satisfy] the statute of limitations." (Citation omitted; emphasis omitted; footnote omitted.) Id., 450-51. Moreover, the court concluded that the "timely issuance of the arrest warrant [satisfied] the statute of limitations in the absence of an evidentiary showing of unreasonable delay in its service upon the defendant." Id., 452. The court also addressed § 54-193(c), now § 54-193(d), and held that this subsection "which tolls the statute as to a person who has fled from and resides outside the state after the commission of the offense, simply extends the time within which an indictment, information or complaint may be brought." (Internal quotation marks omitted.) Id., 450 n.12.

In response, the state argued that the defendant did not meet his burden in proving that he was available for arrest as that term had been applied during the five-year statute of limitations period. In the alternative, the state argued that the statute of limitations period should have been tolled because the defendant fled from Connecticut when he moved to California. The state further argued that the applicable standard of review was set forth in § 54-193(d), which provides: "If the person against whom an indictment, information or complaint for any of said uses is brought has fled from and resided out of this state during the period so limited it may be brought against such a person at any time within such period, during which such resides in this state, after the commission of the offense."

The state relied on our Supreme Court’s decision in State v. Ward, 306 Conn. 698, 52 A.3d 591 (2012) (Ward). In Ward, the defendant committed a crime in Connecticut and immediately fled to his home state of Massachusetts. See id., 704. The police had no knowledge of the defendant’s identity. See id. As a result, the arrest warrant was not issued until the police became aware of the defendant’s identity which was long after the statute of limitations had expired. See id., 704-05. When the defendant challenged his prosecution as untimely, our Supreme Court analyzed whether the defendant fled in order to determine whether the statute of limitations tolled pursuant to § 54-193(c), now § 54-193(d). See id., 707. The court held that "§ 54-193(c) [now § 54-193(d)] may toll the statute of limitations when a defendant absents himself from the jurisdiction with reason to believe an investigation may ensue as the result of his actions. Certainly, the defendant herein, as a result of his conduct in the victim’s home, had reason to believe that an investigation would ensue." See id., 711. Therefore, the court held that the trial court had properly denied the defendant’s motion to dismiss because the state had shown probable cause that the statute had been tolled. Id., 714-15.

Applying Ward to the present case, the state argued that under § 54-193(d), the period of limitations could not expire as long as the defendant, who had fled the state, remained in California. As such, because the period of limitations cannot expire, the defendant could not prevail on a statute of limitations defense.

The court’s decision, on July 2, 2019, coincided with our Appellate Court’s decision, on June 25, 2019, in Roger B. v. Commissioner of Correction, 190 Conn.App. 817, 212 A.3d 693, cert. denied, 333 Conn. 929 (2019) (Roger B. II). Prior to the court’s decision, the defendant filed a supplementary authority on June 25, 2019, in which he argued that Roger B. II compelled the court to grant the defendant’s motion. The state had not responded before the court’s issuance of its memorandum of decision on July 2, 2019. The court did not cite to nor rely on our Appellate Court’s decision in Roger B. II. The court’s decision held that the statute of limitations period was not tolled and as such, the defendant’s motion to dismiss was granted. The court concluded that unlike in Ward, the warrant or information in the present case was issued within the statute of limitations. Therefore, the court analyzed the defendant’s motion to dismiss under the burden shifting framework found in Crawford. Applying the burden shifting framework, the court first determined that the defendant met his burden of putting forth evidence that he was not elusive, was available, and was readily approachable for the burden to then shift to the state to prove that the delay in executing the warrant was not unreasonable. The court then determined that the delay in executing the arrest was unreasonable in light of the totality of the circumstances, including that the state knew the California address of the defendant, the police requested an extraditable warrant in 2013, but did not actually obtain one until 2018, and that the state provided no evidence to explain why its failure to serve the arrest warrant was reasonable.

On July 12, 2019,...