State v. Dulos

State of Connecticut v. Fotis Dulos

No. FSTCR190148554T

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

January 14, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Blawie, John F., J.

MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO DISMISS FIRST ARREST WARRANT, CHARGING TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE AND HINDERING PROSECUTION INTRODUCTION

Blawie, J.

On January 7, 2020, the defendant, Fotis Dulos, was arrested pursuant to a warrant charging him with the murder ^[1] felony murder, ^[2] and kidnapping^[3] of his estranged wife and mother of his five children, Jennifer Farber Dulos on or about May 24, 2019. Those pending charges represent the most recent (and most serious) set of allegations against the defendant in connection with the state’s months-long investigation into the disappearance of Jennifer Farber Dulos. The defendant was initially arrested on June 3, 2019 pursuant to a two-count arrest warrant (the Warrant)^[4] charging him with tampering with or fabricating physical evidence, in violation of General Statutes § 53a-155, ^[5] and hindering prosecution in the first degree, in violation of General Statutes § 53a-165aa.^[6] On September 4, 2019, the defendant was arrested by way of a second warrant, ^[7] which charges an additional count of tampering with physical evidence.

On July 24, 2019, the defendant filed a motion to dismiss the charges in the original arrest Warrant, pursuant to Practice Book § 41-8. The state filed its memorandum in opposition on September 3, 2019. The court heard argument on October 4, 2019.^[8] The court having now considered all the claims and contentions of the parties, denies the motion to dismiss for the reasons stated herein.

DISCUSSION

"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) State v. Bonner, 290 Conn. 468, 477-78, 964 A.2d 73 (2009). "Pretrial dismissal of criminal charges in any type of case is such a drastic remedy that it should not be resorted to lightly." State v. Bergin, 214 Conn. 657, 662, 574 A.2d 164 (1990). "Where a motion to dismiss an information against an accused is made prior to trial, only probable cause sufficient to justify the continued prosecution need be established." State v. Howell, 98 Conn.App. 369, 378, 908 A.2d 1145 (2006).

The starting point for considering all pretrial motions to dismiss criminal charges is Practice Book § 41-8. The court will first set forth this particular Practice Book provision in its entirety, before focusing in on the relevant subsections relied upon by the defendant. This is a necessary exercise, in order to properly distinguish not only what this motion to dismiss is specifically about, but also (and equally important) what this motion is not and cannot be about. Practice Book § 41-8, entitled "Motion to Dismiss," provides: "The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information:

(1) Defects in the institution of the prosecution including any grand jury proceedings;

(2) Defects in the information including failure to charge an offense;

(3) Statute of limitations;

(4) Absence of jurisdiction of the court over the defendant or the subject matter;

(5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial;

(6) Previous prosecution barring the present prosecution;

(7) Claim that the defendant has been denied a speedy trial;

(8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid; or

(9) Any other grounds.

As is further discussed herein, because the defendant was arrested in this case by the Warrant signed and served upon him, his options under the Practice Book are more limited in terms of a pretrial motion to dismiss. That is, at this pretrial stage, the defendant can only avail himself of two possible Practice Book provisions in mounting his challenge. The defendant’s motion relies upon two different subsections of Practice Book § 41-8. Specifically, Practice Book § 41-8(2), claiming alleged defects in the information, including the failure to charge an offense; and Practice Book § 41-8(8), claiming that the laws defining the offenses charged are unconstitutional or are otherwise invalid.

The defendant argues that the affidavit accompanying the Warrant and the discovery tendered by the state provide insufficient evidence to justify further proceedings. Specifically, as to the charge of hindering prosecution in the first degree, the defendant argues that the state has presented no evidence that the defendant "render[ed] criminal assistance to another person who has committed a class A or B felony or an unclassified felony for which the maximum penalty is imprisonment for more than ten years ..." See General Statutes § 53a-165aa(a). As a result, the defendant argues that the state is unable to establish a prima facie case against him for the commission of this crime as a matter of law, and that the charge must therefore be dismissed. As to the charge of tampering with physical evidence, the defendant argues that the state has failed to present sufficient evidence from which it could be found that he tampered with physical evidence, because the statute requires an additional underlying offense as to which such physical evidence was allegedly tampered with. As another ground for dismissal, the defendant argues that the state has produced insufficient evidence that the defendant knew that an official proceeding was pending, or was about to be instituted.

In its objection, the state characterizes the defendant’s motion as a "Trojan horse" that obscures the defendant’s true motives. The state argues that although the defendant purports to move for dismissal on the grounds of a defective information, pursuant to Practice Book § 41-8(2), or alternatively, that the charges in the Warrant are unconstitutional, pursuant to Practice Book § 41-8(8), that both of these challenges are merely pretextual. The state maintains that the defendant is actually seeking to attack the sufficiency of the state’s evidence, a challenge which falls under a different subsection of the Practice Book, namely § 41-8(5). The state correctly points out, however, that because the defendant was arrested pursuant to the Warrant, this avenue is specifically foreclosed to him. This is because Practice Book § 41-9, by its terms, expressly bars any defendant who has been arrested by warrant from moving to dismiss criminal charges under Practice Book § 41-8(5). Practice Book § 41-9 plainly states that: "No defendant ... who has been arrested pursuant to a warrant may make a motion under subdivisions (5) or (9) of Section 41-8." In regards to the two grounds for dismissal advanced by the defendant under Practice Book § 41-8(2) and (8), the state argues that the information as filed is not defective, and that the defendant has moreover failed to brief any claim that the laws defining the two charges are unconstitutional.

I

Practice Book § 41-8(5)

The very first sentence of the defendant’s motion for dismissal asks this court to dismiss the charges "on the grounds that there is insufficient evidence to warrant further proceedings." See D’s Mot. Dismiss, p. 1. The remainder of the defendant’s motion proceeds along this similar theme of challenging the state’s evidence in the present case.^[9] However, the proper grounds for making such a motion are not to be found under either Practice Book provision that the defendant relies upon, namely Practice Book § 41-8(2) and (8). Instead, it is found under Practice Book § 41-8(5), which provides in relevant part: "The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information ... (5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial ..." As previously stated, Practice Book § 41-9, ^[10] bars a defendant arrested by warrant from moving to dismiss criminal charges for lack of evidence. The reason for this rule is derived from the spirit and purpose of motions to dismiss, which is to "prevent unchecked power by a prosecuting attorney." (Internal quotation marks omitted.) State v. Bellamy, 4 Conn.App. 520, 527, 495 A.2d 724 (1985). When the state has subjected its case to review by applying for an arrest warrant before a judge, its power is not unchecked because by finding probable cause^[11] "the judicial authority’s considered judgment has been interposed between the power of the prosecuting attorney and the rights of the defendant." Id.

In the present case, the state charged the defendant by way of an arrest warrant. In doing so, the state subjected its broad authority to "the prior check of the judicial authority’s independent determination that probable cause exists as to each element of every crime charged." State v. Bellamy, supra, 4 Conn.App. 527. As such, the defendant’s motion to dismiss must fail. Although the court is cognizant of the state’s argument that further review of the defendant’s grounds for dismissal under Practice Book § 41-8(2) and (8) is unnecessary, given the lack of support proffered in the defendant’s motion, the court will nevertheless review these alternative grounds for dismissal.

II

Practice Book § 41-8(2)

The defendant’s arguments for dismissal under ...