Opinion
No. HHD-CR03-78859
March 18, 2008
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
The defendant herein moves the court to dismiss the charges in the above-captioned matters on the grounds that he has been deprived of his statutory and constitutional right to a speedy trial. For the reasons hereinafter set forth, the court denies the motion.
I. FACTS AND PROCEDURAL HISTORY
Because the defendant's Motion raises a number of questions concerning alleged delays in the prosecution of these matters, and because a resolution of these issues necessitates consideration of the reasons for any such delays, the court must recount the relevant facts and procedural history at some length and in a fair amount of detail.
On March 26, 1999, the defendant was convicted in the Judicial District of Windham in docket numbers CR95-0092498 and CR95-0091888 of the charges of attempted murder and kidnapping, and was sentenced to 15 years in prison. While incarcerated under that sentence, the defendant was charged in the Judicial District of Tolland in docket number CR03-78859 with one count of attempted murder, and in docket number CR03-78860 with two counts of attempted murder. The defendant was first presented in court on these two new matters on April 15, 2003, at which time the court appointed the public defender to represent the defendant in each case. After the matters were transferred to the Part A court in Tolland, the public defender determined that a special public defender should represent the defendant, and, on the basis of the public defender's request, Attorney Paul Melocowsky was appointed by the court on June 13, 2003 as special public defender to represent the defendant in both of the files.
The victims in these cases were the defendant's wife, Maria Morales-Malito, and the couple's two children.
In each of these cases, it was alleged that the defendant, while serving his 15-year sentence, had attempted to arrange for the murder of his wife. In the second case, it was further alleged that the defendant also attempted to arrange for the murder of Detective Richard Bedard, the detective who had led the investigation in the matter for which the defendant was serving his 15-year sentence.
Thereafter, the defendant was charged by warrant in docket number CR03-80403 with multiple counts of attempted murder and inciting injury to persons. He was first presented in court on this third file on October 24, 2003. On that date, the matter was transferred to the Part A court, and Attorney Melocowsky, who was still representing the defendant on the first two pending matters, was appointed to represent the defendant as a special public defender in the third file as well.
These charges, like those in the other two files, were based upon allegations that the defendant had sought to have various individuals killed, including, again, the defendant's then former wife and Detective Bedard, and also two of the defendant's fellow inmates who the defendant believed had informed against him.
Attorney Melocowsky continued to represent the defendant as a special public defender during pretrial proceedings and after the three matters were placed on the jury list. On June 29, 2004, Attorney Melocowsky filed a written motion to withdraw as counsel. On July 23, 2004, the motion to withdraw was considered by the court, Kaplan, J. At that hearing, Attorney Melocowsky represented to the court that he had spoken to the defendant about the motion, and that the defendant had no objection to it being granted. Tr. 7/23/04, pp. 1-2. Melocowsky also advised the court that although he had discussed with the defendant the possibility of asking the court to appoint a different special public defender to represent the defendant's interests, the defendant had instead requested "a continuance as long as Your Honor will give him" so that the defendant could retain private counsel. Tr. 7/23/04, pp. 1-2.
During the hearing, the defendant addressed the court personally and responded to a number of inquiries from the court. The defendant expressly stated that he did not object to the granting of the motion to withdraw, that he did not want a new special public defender to be appointed, and that he was in the process of hiring private counsel and wished to have the matters continued so that private counsel could appear. Tr. 7/23/04, pp. 3-4. The state's attorney expressed his concern that if Attorney Melocowsky was allowed to withdraw, the defendant might not be able to secure counsel, or, having done so, that there could be "a succession of attorneys asking to withdraw," thereby leaving the defendant without counsel for trial. Tr. 7/23/04, p. 5. The court stated that it appreciated the state's concern, but chose to grant the motion to withdraw and to continue the case until August 13, 2004 to see whether the defendant had secured counsel by that date. Tr. 7/23/04, pp. 5-6.
The defendant next returned to court on August 13, 2004. At that time, the defendant represented to the court, Sullivan, T., J., that he had met with private counsel, Attorney Gilbert Shasha, and was awaiting word as to whether Attorney Shasha would be representing him. Tr. 8/13/04, p. 1. Asked by the court whether there was an alternative plan if Attorney Shasha chose not to file an appearance, the defendant stated that he and his family were "desperately trying to get private counsel." Tr. 8/13/04, pp. 2-3. The court indicated that it was prepared to continue the cases until September 10, 2004 to "see where we stand at that time," and the defendant expressed his agreement to that further continuance. Tr. 8/13/04, p. 3.
The defendant noted also that he was aware that the prosecutor had "waited also for quite awhile" and "has been patient" — presumably referring to the state's desire to see that counsel was retained so that a trial of these matters soon could commence. Tr. 8/13/04, p. 2.
At the defendant's next appearance on September 10, 2004, the state's attorney represented to the court, Sullivan, T., J. that he had received from the defendant a so-called "application for waiver of fees, costs, and expenses, and appointment of counsel" [hereinafter the "Application"]. Tr. 9/10/04, p. 1. The prosecutor added that because he did not know whether the Application was a request for a public defender or not, he had alerted the public defender to the defendant's filing. Tr. 9/10/04, p. 1. The state's attorney also advised the court that the public defender had met with the defendant and consulted with him. Tr. 9/10/04, p. 1. According to the state's attorney, the public defender had reported to him that the defendant "want[ed] some more time to hire private counsel." Tr. 9/10/04, p. 1.
The clerk's file indicates that the original of this Application was filed by the defendant with the court, and that a copy had been forwarded by the defendant to the state's attorney's office. The substance and import of this Application is discussed in detail in Part II of this decision.
When the court inquired of the defendant if he did wish additional time to retain private counsel, the defendant replied in the affirmative and requested a continuance of another month. Tr. 9/10/04, p. 1. The defendant stated that if a private attorney could not be retained by the next court date, then he would "have to accept . . . what the public defender's office had mentioned to me earlier, an outside party who has experience as a special public defender." Tr. 9/10/04, p. 2. The court then continued the cases until October 22, 2004.
The defendant told the court that Attorney Shasha had declined to represent him, and that the defendant's father was in the process of speaking with other attorneys who might agree to represent the defendant in these matters. Tr. 9/10/04, p. 1.
As scheduled, the defendant returned to court on October 22, 2004. At the hearing, the state's attorney advised the court, Klaczak, J., of the defendant's still unsuccessful efforts to retain private counsel. Tr. 10/22/04, p. 1. The court asked the defendant if he was going to represent himself, but the defendant stated that he was not prepared to do so. Tr. 10/22/04, p. 1. The defendant recounted in detail his and his father's futile efforts to secure counsel, and then stated that "I don't know what to do." Tr. 10/22/04, pp. 1-2. The court inquired as to the defendant's eligibility for the appointment of a public defender, and the state's attorney explained the sequence of events that had previously occurred regarding Attorney Melocowsky. Tr. 10/22/04, p. 2. The court noted that the defendant likely was eligible for a public defender and that the court would appoint a lawyer to replace Attorney Melocowsky if the defendant requested the court to do so. Tr. 10/22/04, p. 2.
Finally, noting that the defendant had neither a private nor a court-appointed lawyer, the court asked the defendant "So what do we do now?" Tr. 10/22/04, p. 2. The defendant replied that he and his father were still trying to retain private counsel. Tr. 10/22/04, p. 2. The defendant then expressed concern with how long the court could wait for private counsel to appear, particularly given that a new attorney would have to be brought up to speed before trial could commence. Tr. 10/22/04, pp. 2-3. After the court indicated its inclination to give the defendant additional time until November 12, 2004, the defendant asked whether "that's the latest you can give me, your Honor?" Tr. 10/22/04, p. 3. The court indicated that it was, and the matter was continued to that date. Tr. 10/22/04, p. 4.
On November 12, 2004, the defendant once again returned to court. At the outset of that hearing, the state's attorney summarized the cases' recent procedural history, noting that the defendant had been in court in August, September and October — on each occasion "because Mr. Malito indicated to the court that he wanted to hire private counsel." Tr. 11/12/04, p. 1. The court, Sullivan, T., J., then pointed out to the defendant that "You keep telling me each month that your family is going to hire a lawyer. Nobody ever shows up." Tr. 11/12/04, p. 1. The defendant replied that he had renewed his efforts to retain Attorney Shasha, and was also in the process of hiring a forensic psychiatrist to assist in his defense. Tr. 11/12/04, pp. 1-2. Finally, when the court questioned whether private counsel would ever be retained, the defendant reiterated his desire to hire Attorney Shasha, but conceded that "if worse comes to worse, then we have to, naturally, apply for the Public Defender Services because of — you know, this has been going on for some time." Tr. 11/12/04, pp. 3-4.
The defendant also indicated that he was awaiting receipt of certain "missing paperwork that [he] would like to have" which he had requested from the attorneys who had represented him previously in these and in other related proceedings. Tr. 11/12/04, p. 2.
The court then told the defendant how it intended to proceed. The court stated: "Well, I'll tell you what we'll do, Mr. Malito. I'll just leave your case on the firm jury list, and you contact the Court when you, one, have a lawyer and the lawyer files an appearance — that will give us automatic — we'll know that you have a lawyer; or if you can't get a lawyer and you want to apply for a public defender, you can contact the Court, and we'll bring you in and [you can] make an application for a public defender. Okay?" Tr. 11/12/04, p. 4. When the defendant indicated his approval of such a plan, the court reiterated that the case would not be scheduled for any specific future date, but that the defendant next would return to court when "either an attorney files an appearance, or you ask to come in to make an application for a public defender." Tr. 11/12/04, p. 4. The defendant again expressed his agreement and stated that he would "be contacting [the court] within reason." Tr. 11/12/04, p. 4. The matter was then reassigned to the firm jury list.
Because no attorney ever filed an appearance on behalf of the defendant, and because the defendant never contacted the court in order to express his desire to apply for the public defender, these matters remained on the firm jury list without further action until August 23, 2006. On that date, the defendant appeared before the court, Sullivan, T., J, in connection with the state's request that the defendant's cases be transferred to the Hartford Judicial District for prosecution. During the transfer hearing, the defendant again brought up, on his own, the issue of counsel. Commenting that "the Court was very lenient with me as of November 12, 2004 to consult for a private attorney," the defendant advised the court that he was still in the process of trying to hire an attorney. Tr. 8/23/06, pp. 1-3. The defendant also indicated that he was trying to get a handwriting expert to assist in the preparation of his defense. Tr. 8/23/06, pp. 2-3. The court wished the defendant well in his efforts, and thereupon transferred the matters to the Hartford Judicial District for September 8, 2006, the date on which the defendant was next scheduled to appear on his Hartford cases. Tr. 8/23/06, p. 4.
The transfer request filed by the Tolland State's Attorney stemmed from the fact that the defendant had been arrested in 2006 on two new files in the Hartford Judicial District. In each of these files, it was alleged that the defendant had attempted to hire an individual to cause harm to members of the Division of Criminal Justice, including, specifically, the Tolland State's Attorney, Matthew Gedansky. Because he was one of the alleged intended victims in the defendant's 2006 cases, State's Attorney Gedansky concluded that neither he nor any member of his office should continue to participate in the prosecution of the defendant.
The defendant did not object to the transfer of his cases because, as he explained to the court, he believed it was better "to have this all under one roof." Tr. 8/23/06, pp. 2-3.
Noting that he was trying to get access to assets which could be used to hire an attorney, the defendant told the court that he did "have an attorney that's interested in a lot of my assets, but [the attorney] did want a retainer upfront in the form of money . . ." Tr. 8/23/06, p. 3.
On September 8, 2006, the defendant appeared in the Hartford court on all of his pending cases. The matters were continued on that date until October 16, 2006, at which time the court appointed a special public defender to represent the defendant. That special public defender, Attorney Margaret Levy, filed her appearance on November 13, 2006 and has represented the defendant continuously since that date. Shortly after her appointment, Attorney Levy moved to disqualify all members of the Division of Criminal Justice (including those within the Hartford State's Attorney's Office) from prosecuting the defendant. The pendency of that motion to disqualify, coupled with certain discovery issues that arose therefrom, delayed any further action on the defendant's cases until August 23, 2007, when the court, Miano, J., denied the defendant's motion to disqualify as to the members of the Hartford State's Attorney's Office.
Thereafter, on September 19, 2007, the defendant, through present counsel, filed the instant motion to dismiss, in which he claims to have been deprived of his statutory and constitutional rights to a speedy trial in his three above-captioned cases. In this motion, the defendant contends that his right to a speedy trial has been violated specifically as a result of the approximate two-year delay that commenced on August 18, 2004 (with the filing of his Application), and which concluded on August 23, 2006 (with the transfer of his cases to the Hartford Judicial District). The state filed its written Objection to the Motion to Dismiss on December 11, 2007. This court heard oral argument from both parties on December 17, 2007, and took the matters presented under advisement pending the issuance of this written memorandum of decision.
The record reflects that the defendant had filed a similar motion on May 17, 2007. It appears, however, that this May motion was neither actively pursued by the defendant nor ever acted upon by the court — likely because the parties agreed that the defendant's motion to disqualify the state's attorney's office presented issues which, by necessity, needed to be resolved first. When that motion to disqualify eventually was decided against him on August 23, 2007, the defendant then filed the instant motion, in which he reasserted and expanded upon the claims he had raised in his earlier motion to dismiss.
II. DISCUSSION A. General Statutes § 54-82c
The defendant's first contention is that he is entitled to a dismissal of the charges in all three files because the state has failed to bring him to trial within the time constraints imposed by General Statutes §§ 54-82c and 54-82d. General Statutes § 54-82c affords an individual who is serving a sentence of incarceration the right to a timely trial on any other cases then pending against the individual. Specifically, the purpose of the statute is to provide that "[e]ligible inmates are entitled to a trial [on any pending charges] within 120 days . . . if they follow the procedure outlined in the statutes." State v. Toste, 198 Conn. 573, 586 (1986). Although the statute empowers the court to "grant any necessary or reasonable continuance" to this 120-day period "for good cause shown," the state's failure to comply with this speedy trial requirement carries harsh consequences. Indeed, § 54-82d expressly provides that, if a trial is not commenced within the required time period, "no court . . . shall any longer have jurisdiction [over the case], . . . and the court shall enter an order dismissing the same."
General Statutes § 54-82c(a) provides in pertinent part as follows: "Whenever a person has entered upon a term of imprisonment . . . and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state's attorney . . . and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown . . . the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden . . . or other official having custody of the prisoner, stating the term of commitment under which the prisoner is being held . . ."
Subsection (b) of the statute goes on to provide that "The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden . . . or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court . . ."
i. Did the defendant file proper notice?
The defendant here contends that he formally exercised his speedy trial rights under § 54-82c when he submitted to the court on August 18, 2004 his pro se "Application for Waiver of Fees, Cost[s] and Expense[s] and Appointment of Counsel." In this Application, which was received by the court on August 23, 2004, the defendant asked the court to waive certain unidentified fees, costs and expenses, and to appoint counsel to represent him. In support of his request, the defendant represented in the body of the Application that he was then serving a fifteen-year sentence, that he was indigent and unable to afford an attorney, and that the charges against him were false. In the final paragraph of the motion, the defendant set forth the precise relief he requested — that is, for "the court to order (1) the waiver of the fees, cost[s] and expenses, (2) appoint counsel to represent the defendant on this case as he knows very little of the law, or how to have this case dismissed as it is an unnecessary hardship as a prisoner and he has complained with grievances for future suing arguments."
It is the defendant's claim that by virtue of his filing of this Application on August 18, 2004, he became statutorily entitled to a trial of the instant matters within 120 days — that is, by approximately December 18, 2004 — as provided for in § 54-82c. Alternatively, and apparently in recognition of the fact that he had requested various continuances of these cases after August 18, 2004 for the purpose of retaining private counsel, the defendant argues that (at the very least) he was entitled to a trial within the 120-day period commencing on November 12, 2004 — the date on which he last appeared before the court and his matters were restored to the firm jury docket. Regardless of whether the 120-day "clock" began to run in August 2004 or in November 2004, the defendant contends that his trial did not commence within the statutorily required time period, and that, accordingly, he is entitled to a dismissal of all charges. For the reasons set forth below, the court does not agree.
In order to trigger one's rights under § 54-82c, a defendant must "follow the procedures outlined in the statute." State v. Toste, supra, 198 Conn. 586. Section 54-82c(b) expressly provides that the defendant must give written notice of his request for a speedy trial to the warden of the facility in which the defendant is then currently incarcerated. The defendant's notice to the warden specifically must indicate that it is a "request for final disposition" of the defendant's pending cases; General Statutes § 54-82c(b); and, according to our Supreme Court, must make particular reference to the statutory right upon which the defendant seeks relief. State v. Toste, supra, 588. Upon receipt of such notice from an inmate, the warden then is obligated to forward the inmate's request to the prosecutor and the court, together with the warden's certificate detailing the nature and terms of the inmate's then current sentence. Only if each of these requirements is met does a defendant invoke his speedy trial rights under the statute.
Specifically, the warden's certificate must set forth "the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner." General Statutes § 54-82c(a).
The defendant here, however, failed to comply with any of these requirements. He did not send the statutorily required notice to the warden; indeed, the record fails to disclose that the defendant sent the warden anything at all. Although the defendant contends that his August 18, 2004 Application satisfies the notice requirement of the statute, there is simply nothing in the statute permitting notice to be filed with the court instead of with the warden, and the defendant fails to cite to any reported decision supporting such an interpretation of § 54-82c.
Given this shortcoming, it is therefore not at all surprising that the warden did not forward anything to the prosecutor or the court, nor prepare the certificate setting forth the terms of the defendant's confinement.
In fact, the only decision the defendant has asked this court to consider, State v. DeClaybrook, 60 Conn.App. 480, cert. denied, 255 Conn. 920 (2000) does not even involve the particular speedy trial statute at issue here. Id., 483 n. 4 ("General Statutes § 54-82c is not germane to our discussion as the defendant was a pretrial detainee and not sentenced to a term of imprisonment . . . and, therefore . . . was not subject to § 54-82c."). The speedy trial statute at issue in DeClaybrook (§ 54-82m) requires no notice to the warden, but only the filing of a motion with the court. DeClaybrook suggests that a court in certain circumstances should consider a letter from a pro se defendant as constituting such a motion, even though the letter fails to comply with the Practice Book requirements applicable to motions. But that is a far cry from saying, as the defendant apparently does here, that DeClaybrook stands for the proposition that an inmate seeking relief under § 54-82c should be relieved of his or her statutory obligation to give notice to the warden, if the inmate instead gives such notice to the court.
When our Supreme Court has considered and applied § 54-82c, it has on every occasion "required strict compliance with the statutory notice procedures." State v. Toste, supra, 198 Conn. 588. In Toste, the defendant, unlike the defendant here, at least did send a letter to an appropriate correction official, asking her to file a "Speedy Trial Disposition." That letter, however, was deemed by the Court insufficient to trigger the defendant's 120-day speedy trial right because the defendant failed specifically to make reference to the statutory procedure contained in § 54-82c. Id. Strict statutory compliance was also required in State v. Springer, 149 Conn. 244 (1962), where the Court held that the 120-day period started not when the defendant sent his notice to the warden, but when the prosecutor and the court received the notice from the warden. In fact, in State v. McCarthy, 197 Conn. 166 (1985), the Court reaffirmed Springer in circumstances where 15 months passed between the defendant's notice to the warden, and the warden's forwarding of that notice to the court and the prosecutor.
The Toste Court also found that the defendant had not complied with the statutory requirements because, even though the correction official forwarded the defendant's letter to the prosecutor and the court, the official did not herself mention the statute upon which the defendant was relying, or attach the certificate setting forth the terms of the defendant's current sentence.
Given the unambiguous language of the statute and the equally unambiguous holding in each of these cases, this court is compelled to conclude that the defendant here failed to comply with the procedural requirements of the statute, and thereby failed to trigger his 120-day speedy trial right. In the court's view, in the context of a speedy trial claim governed by § 54-82c, a filing with the court — regardless of its form, title, text or content — as a matter of law does not satisfy, nor work as an acceptable substitute for, the requirement that the inmate provide notice to the warden of the correctional facility in which the inmate is housed. Accordingly, that portion of the defendant's motion claiming he is entitled to a dismissal of the charges pursuant to § 54-82d is hereby denied.
ii. Did the notice communicate a desire for a speedy trial?
Even if the court were to find that a pro se filing with the court could trigger, under certain circumstances, a defendant's speedy trial right under § 54-82c, the court would find that such circumstances are not present here. Virtually nothing in the defendant's August 18, 2004 Application can be read as suggesting that its purpose was to request a speedy trial. To the contrary, the filing, as noted, is entitled "Application for Waiver of Fees, Cost[s] and Expense[s] and Appointment of Counsel," and its text refers only to the defendant's indigence and his desire to have counsel appointed and certain unidentified fees waived.
The defendant makes much of the concluding paragraph of the application wherein the defendant states that he "knows very little of the law, or how to have this case dismissed as it is an unnecessary hardship as a prisoner and he has complained with grievances for future suing arguments." However, nothing in these words even remotely identifies the defendant's request as one seeking a speedy trial. There is no statutory reference to any speedy trial provision of the General Statutes, nor do the words "speedy trial" or any functional equivalent thereof, appear. While there may be a reference to a dismissal and a claim of hardship, these words provide no hint that the defendant was seeking a dismissal specifically on speedy trial grounds. Indeed, since the entire passage in question ends with a reference to grievances and (it would appear) lawsuits that were being contemplated, the most reasonable interpretation of all of this language is that the defendant was dissatisfied with his previously appointed counsel and wanted a new lawyer appointed to represent him.
Notwithstanding the fact that he requested the appointment of counsel in this Application, the defendant at his next court hearing on September 10, 2004 expressly declined the court's offer to appoint a public defender.
Finally, it bears note that the defendant was before the court on a number of occasions after he filed his August 18, 2004 Application with the court. On each of those occasions, as is set forth in part I of this decision, the defendant was given ample opportunity to address the court, and to bring to its attention any matter he wished. At no time, however, did the defendant, in the context of his August 2004 Application or in any other context, mention his desire to pursue a speedy trial.
It is also important to recall that the defendant, shortly after filing his Application, was given an opportunity to discuss it with the public defender. It is fair to assume that if the defendant had mentioned his desire for a speedy trial in the course of that discussion, the public defender would have advised the defendant to bring his request to the attention of the court, and that the defendant would have done so at his next court appearance.
For these reasons, even if the court were inclined (which it is not) to conclude that a pro se defendant could be forgiven for his failure to provide the required notice to the warden, and could instead meet that requirement by an appropriate written submission to the court, the court would conclude that the defendant's Application here was insufficient to serve this purpose. Regardless of how broadly the court were to interpret the defendant's August 18, 2004 Application, that filing is devoid of any language from which the court could have concluded or inferred that the defendant was seeking a speedy trial. Accordingly, on the basis of this separate and distinct reason, the defendant's claim for § 54-82c relief is hereby denied.
Because the court has concluded that the defendant failed to provide the type of notice necessary to trigger his § 54-82c rights, the court has not addressed in this part of its opinion the question of whether the defendant waived any such rights by repeatedly requesting that his cases be continued. However, for the reasons set forth in the remainder of this decision, even if the defendant had provided proper notice, the court would have found that his many continuance requests constituted a waiver of his right to a speedy trial under the statute. See Practice Book § 43-40 ("The following periods of tine shall be excluded in computing the time within which the trial of a defendant . . . must commence . . . (7) The period of delay resulting from a continuance granted by the judicial authority at the personal request of the defendant."). On this basis, the court would have denied the defendant's request for a § 54-82d dismissal.
B. General Statutes § 54-142a(c) and State v. Winer, 99 Conn.App. 579 (2007)
In his second claim, the defendant contends that he is entitled to a dismissal of all charges pursuant to General Statutes § 54-142a(c), as that statute has been interpreted by our appellate court in State v. Winer, 99 Conn.App. 579, cert. granted, 282 Conn. 905 (2007). In this claim, the defendant directs the court's attention specifically to the period of time commencing on November 12, 2004, and continuing until August 23, 2006. The parties here agree that during this approximate 21-month period, the defendant's cases remained docketed on the firm jury list, and that no formal action was taken upon them. The defendant argues that the appellate court's holding in Winer applies to these circumstances and compels this court to dismiss the charges in the instant matters. The state argues in opposition that the facts at issue in Winer are distinguishable from those at issue here and that, as a result, § 54-142a(c), as interpreted by Winer, does not compel the dismissal the defendant seeks. The court agrees with the state.
General Statutes § 54-142a(c) provides in relevant part that "[w]henever any charge in a criminal case has been continued at the request of the prosecuting attorney, and a period of thirteen months has elapsed since the granting of such continuance during which period there has been no prosecution . . . of the matter, the charge shall be construed to have been nolled as of the date of termination of such thirteen-month period . . ." The appellate court interpreted this statute in Winer and held that the charges there at issue should have been dismissed. In the case, the defendant had pleaded not guilty to the charges against him on August 2, 2000. State v. Winer, supra, 99 Conn.App. 581. At some time after that date, the defendant's case was placed on the firm trial docket. Id. Thereafter, on June 13, 2001, the defendant's case appeared on the docket. Id. On that date, "the state indicated to the court that this case was on the firm trial list and was `going to remain there on the firm trial list.'" Id., 581-82. The defendant's case then did not appear on any court docket for over three years. Id.
On October 29, 2004, the defendant, who was in court on another matter, learned that the firm trial list case was still pending. Id., 582. He wrote a letter to the court requesting relief pursuant to General Statutes § 54-142a(c). Id. The clerk alerted the state to the letter, and the defendant's case was docketed for December 14, 2004 — 3 1/2 years after it had last been brought into court. Id. The defendant then moved to dismiss the case. Id. After a hearing, the trial court concluded that § 54-142a(c) did not apply because the case had not been "continued at the request of the prosecuting authority," as is expressly required under the provisions of that statute. Id., 583. On that basis, the trial court denied the defendant's motion to dismiss. Id.
On appeal, the court held that, under the facts there before it, § 54-142a(c) did apply and therefore the defendant's charges should have been dismissed. Id., 590-91. Although recognizing that neither side had "explicitly requested a continuance" at the June 13, 2001 court appearance, the appellate court concluded that the subsequent delay in the proceedings was properly attributed to the state. Id., 589. The court explained that the state, by indicating on June 13, 2001 that the case was to remain on the trial list, "effectively informed the court that [the case] was not going to be tried on that day." Id. Such action, the court concluded, constituted a continuance requested by the state. Id., 589-90. Stating that "this [was] the very situation that § 54-142a(c) was intended to address," the court remanded the case to the trial court with direction to dismiss the charges. Id., 590-91.
The court noted that following the state's June 13, 2001 request, the defendant's case remained on the trial list, and that the state "completely abandoned the prosecution of the defendant's case until December 2004." State v. Winer, supra, 99 Conn.App. 590.
The facts in the cases at bar, however, paint a far different picture. The continuance on November 12, 2004 was requested specifically by the defendant, and followed similar requests made by the defendant in July, August, September and October 2004, at each of the defendant's four prior court proceedings. In the course of the hearing on November 12, 2004, the defendant reported to the court that he needed an additional continuance because he (1) was still trying to retain Attorney Shasha or other private counsel, (2) was still awaiting receipt of certain materials that he had requested from his previous attorney, Mr. Melocowsky, (3) had yet to receive his habeas papers from Attorney Judy Wildfeuer, (4) was in the process of hiring a private forensic psychiatrist who he would be seeing in the next month, (5) was dissatisfied with the nature of the work conducted by the investigator retained by Mr. Melocowsky, (6) was missing paperwork that he wanted to have for his case, and (7) might decide to apply for the public defender "if worse comes to worse."
In response to the defendant's November 12, 20004 continuance request, the court told the defendant that he would be granted additional time to complete his stated tasks, and that his cases would be placed again on the firm jury list. In order to provide the defendant with as much time as possible, the court advised the defendant that he should contact the court when he had been successful in hiring an attorney, or when, having been unable to do so, he wished to apply for a public defender. The defendant not only indicated that he understood the court's intention, but told the court that he would be "contacting [the court] within reason." In order to be sure that the defendant clearly understood that the proverbial "ball was in his court," the court explained again that the defendant would not return to court until either counsel was retained or the defendant decided to apply for the public defender. The defendant reiterated his understanding of the court's intended action.
The "firm jury list" referred to here, and the "firm trial list" referred to in Winer, are slightly different names for the same type of docket. Unlike a matter appearing on any other type of docket in Connecticut criminal courts, a matter placed on a firm jury list or firm trial list is not thereafter continued to a date certain in the future. Rather, the matter remains pending, subject to such further rescheduling as the court (often in consultation with the parties) deems appropriate.
It is clear, therefore, that it was the defendant here, not the state, who sought the continuance on November 12, 2004, and that it was the defendant, not the state, who indicated that he was not ready to commence trial on that date. In the court's opinion, these factors clearly serve to distinguish Winer from the case at bar, and to remove this case from the purview of § 54-142a(c).
It is also useful to note that the defendant in Winer, upon learning that his case was still pending after a long hiatus, moved immediately for a dismissal of the charges — later telling the court that he had believed all along that his case had been nolled. State v. Winer, supra, 99 Conn.App. 582. However, when the defendant here was returned to court on August 23, 2006 after the 21-month hiatus in his case, he reacted quite differently. Rather than expressing shock or surprise that his cases were still pending in August 2006 and demanding their immediate dismissal, the defendant instead expressed his recognition that the court had been "very lenient with me as of November 12, 2004 to consult for a private attorney," and proceeded to ask the court for additional time for that purpose. Tr. 8/23/06, p. 1-3.
Winer is also distinguishable due to the fact that the delay at issue in that case was brought about by circumstances that differ completely from the circumstances which occasioned the delay in the cases here. In Winer, when the defendant appeared in court on June 13, 2001, "the state indicated to the court that [the defendant's] case was on the firm trial list and [that the case] was `going to remain on the firm trial list.'" State v. Winer, supra, 99 Conn.App. 581-82. The state's comment, at least in the view of this court, seems to have an almost "punitive" aspect to it — one which appears to have signaled the state's intention to "park" the defendant's case on the firm trial list, and to leave the case there until such time as the state was "good and ready" to try it. In fact, this is precisely what occurred, in that the case did remain on the firm trial list for over three years, during which period the defendant never once appeared in court and the state "completely abandoned the prosecution" of the case.
In stark contrast to Winer, however, the delay here did not result from any action of the state. On November 14, 2004, when these cases were continued at the defendant's request, it was the court, not the state, that chose to restore these cases to the firm jury list, rather than to continue them to a date certain in the future. By restoring the cases to the firm jury list, the court was able to grant the defendant's request for another continuance without compelling him to be brought back to court (as he had been in August, September and October) on a randomly chosen future date on which he still might not be prepared to proceed. Instead, the court properly and understandably chose an alternate course of action which afforded the defendant with all the time he needed to decide upon his choice of counsel, and deferred his next court appearance until he had done so and was ready to proceed with trial.
One should not lose sight of the fact that on November 12, 2004 the defendant was serving a 15-year sentence for the crimes of attempted murder and kidnapping, and was facing additional serious charges. Each trip to court temporarily placed the defendant in a less secure environment than the prison setting from which he came and to which he later would be returned. Recognizing the inherent security risks that each court appearance entailed, the court justifiably sought to curtail the defendant's monthly court appearances since no progress in the case could be achieved, nor effective discussions conducted, until such time as the defendant retained private counsel, or indicated his desire to apply for the public defender.
Thus, unlike the arguably "punitive" firm trial marking imposed by the state in Winer, the court's action here actually granted the defendant the relief that he had been requesting all along — that is, a continuance for as long as the court could possibly allow so that the defendant could retain private counsel. Indeed, the firm jury list assignment allowed the defendant, not the state, essentially to choose the date on which the defendant would next appear. Although it is true that the next appearance did not occur for approximately 21 months, this delay was occasioned by the defendant's unwillingness or inability to proceed, not by the state's abandonment of the prosecution. These particular facts were not present in Winer, and, as a result, Winer simply does not control the resolution of the issue presented in the cases here.
In sum, because the continuance at issue here was expressly requested by the defendant, and, further, because the extent of the delay in the proceedings was occasioned by and within the control of the defendant, this court concludes that these matters are not within the purview of § 54-142a(c). Accordingly, the defendant's motion to dismiss on this basis is hereby denied.
C. Constitutional right to a speedy trial and Barker v. Wingo, 407 U.S. 514 (1972)
The defendant's final claim is that he is entitled to a dismissal of the charges against him because he has been deprived of his constitutional right to a speedy trial. Specifically, the defendant alleges that the two-year period from August 18, 2004 until August 23, 2006 constituted an undue delay in the proceedings, that such delay prejudiced his defense, and that the delay thereby violated his constitutional right to a speedy trial. The court concludes that the defendant's claim is without merit and therefore denies that portion of the defendant's motion to dismiss.
At oral argument on the instant motion, the defendant specifically limited his speedy trial claim to the period from August 2004 until August 2006. Although the court will therefore confine its analysis of the defendant's constitutional claim to this two-year span, the court hastens to add that neither its analysis nor its ultimate conclusion concerning the merits of the defendant's motion would change even if the defendant had referenced a broader period of delay — either by relying upon an earlier starting date (i.e. April 2003, the defendant's original arrest date) and/or a later end date (i.e. May 2007, the date of the defendant's first motion to dismiss on speedy trial grounds). Regardless of the period at issue, the court still would resolve the defendant's constitutional claim in the same manner as it is resolved in the text of this opinion.
The United States Supreme Court and the Supreme Court of this state have articulated a four-factor balancing test for determining whether a defendant has been deprived of his constitutional right to a speedy trial. Barker v. Wingo, 407 U.S. 514 (1972); State v. Turner, 252 Conn. 714 (2000). "The four factors to be considered in such a determination are: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." (Internal quotation marks omitted.) Turner, supra, 252 Conn. 742, quoting Barker v. Wingo, supra, 407 U.S. 530. The courts have also recognized that "[n]one 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. Gaston, supra, 86 Conn.App. 226.
The first of these factors, the length of the delay, "is to some extent a triggering mechanism [because] [u]ntil 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. 530. Here, as noted, the defendant points to the two-year period from August 2004 until August 2006 as being of sufficient length to warrant further speedy trial analysis. This court agrees that this is a substantial delay, sufficient to create a potential speedy trial violation. See State v. Turner, supra, 252 Conn. 742 (fifteen months); State v. Toste, supra, 198 Conn. 573 (nineteen months); State v. Gaston, supra, 86 Conn.App. 227 (seven months); State v. Lacks, 58 Conn.App. 412, cert. denied. 254 Conn. 919 (2000) (over two years). As a result, this court must conduct an inquiry into the other factors in the balancing test to determine whether the defendant was deprived of his constitutional right to a speedy trial.
The second factor to be considered is the reason for the delay. "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 [the] delay." State v. Gaston, supra, 86 Conn.App. 227, quoting State v. Lacks, supra, 58 Conn.App. 418. Here, as in Gaston, "a significant reason for the delay of the trial was caused by the defendant's requests for continuances." State v. Gaston, supra, 227. As is discussed in detail earlier in this opinion, these matters were continued at the defendant's express request from August to September to October to November — all for the stated purpose of allowing the defendant to retain private counsel. In November 2004, these cases were again continued at the defendant's request — and again for the same purpose — with the defendant and the court agreeing that the defendant's next appearance would be deferred until the issue of counsel was resolved. Despite the court's willingness to redocket the cases and to have the defendant brought back to court as soon as he had decided upon an attorney, the issue of counsel still remained unresolved as of August 23, 2006, the date on which the defendant was next before the court. Indeed, on that date, the defendant, far from complaining about the delay in his case, expressed his recognition of and appreciation for the court's past and continued patience, and asked the court for yet additional time so that his ongoing efforts to retain private counsel could continue.
Thus, in the present case, it was clearly "the actions of the defendant, rather than those of the state;" State v. Gaston, supra, 86 Conn.App. 227-28; that resulted in the two-year delay which is at the heart of the defendant's constitutional claim. Just as in State v. Toste, supra, 198 Conn. 591-92, where "the record indicate[d] . . . that the defendant himself contributed substantially to the delay . . . [by] his changes in counsel," the record here unambiguously indicates that the defendant bears primary, if not sole, responsibility for the delay because it was occasioned by his unwavering desire to hire private counsel, regardless of how long it took for him to do so. Accordingly, this factor must weigh significantly against the defendant.
The third factor the court must consider is whether the defendant asserted his right to a speedy trial and, if so, at what point in the proceedings. Here, the defendant contends that his August 18, 2004 pro se Application should be deemed an assertion of his speedy trial rights. The court, however, rejects this contention. Just as the court concluded in Part IIA of this decision that the defendant's Application cannot be considered as a demand for a statutory speedy trial pursuant to § 54-82c, the court for the same reasons hereby concludes that the Application is equally unavailing as an assertion of the constitutional right to a speedy trial.
In the court's view, therefore, the first time the defendant asserted his constitutional right to a speedy trial was not until May 2007, when the defendant, through his current counsel, filed a motion to dismiss on that basis. As the Court emphasized in Barker v. Wingo, supra, 407 U.S. 532, the "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Accordingly, given that the defendant did not assert his right to a speedy trial until after the two-year period about which he complains, this factor also must weigh significantly against the defendant.
If the court were to consider the defendant's August 18, 2004 Application as an invocation of his constitutional right to a speedy trial, this factor would more likely weigh in the defendant's favor. But even assuming this factor did weigh in the defendant's favor, it would not upset the overall balance of all four factors that has led this court to conclude that the defendant's constitutional rights were not violated.
The fourth and final factor that the court must consider is the extent to which the defendant has been prejudiced by the delay. This prejudice factor has been called "the linchpin of the speedy trial claim," and is to be assessed in light of the three interests which the speedy trial right was designed to protect: "(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." (Internal quotation marks omitted.) State v. Mooney, 218 Conn. 85, 121, cert. denied, 502 U.S. 919 (1991). "Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker v. Wingo, supra, 407 U.S. 532.
The defendant alleges that he has been prejudiced in a number of different ways. First, the defendant, who as a sentenced prisoner is unable seriously to contend that he has suffered from the fact of pretrial incarceration, argues instead that the existence of these pending cases has rendered him ineligible for certain prison programs which otherwise would have been available to him. Even assuming that the defendant's eligibility has been restricted solely because he has pending cases, this court is wholly unpersuaded that this is the type of prejudice that can tip the scales in favor of a defendant who claims to have been deprived of a speedy trial.
In this regard, it should be noted that the defendant has cited no case which holds that an inmate's ineligibility for a prison program constitutes "prejudice" in the speedy trial sense.
Second, the defendant claims that the delay in the trial of the instant cases has impaired his right to receive, and the value to him of, a concurrent sentence. The defendant's somewhat confusing contention seems to be that he was entitled to have these cases resolved quickly so that, in the event he is ultimately convicted and the resulting sentence is ordered to run concurrently with his present 15-year sentence, there would be a greater chance that the sentence on these cases would not cause the defendant to be required to serve any additional incarceration. If, in fact, this is the defendant's claim, then, in the court's view, it does not involve the type of prejudice that is properly considered in the Barker v. Wingo balancing test, The court is confident that, in the event the defendant is convicted on any of his pending charges, the judge responsible for sentencing the defendant will be able to fashion an appropriate sentence — one which, if necessary, can take into account the vagaries of our sentencing laws and the differing impact that consecutive and concurrent sentences may have upon the total effective sentence a defendant must serve.
Third, the defendant claims that the delay at issue here has caused him anxiety and concern. The defendant makes no specific allegation in this regard, nor does he explain how the claimed anxiety and concern has affected or will affect his defense. Our Supreme Court has concluded, however, that a "generalized claim of anxiety suffered during incarceration . . . does not rise to the level of a constitutional violation of [a defendant's] right to a speedy trial." State v. Turner, supra, 252 Conn. 743. Accordingly, this claim of prejudice must fail.
Such a generalized claim of anxiety is even less significant where, as here, the defendant was a sentenced prisoner throughout the period of delay in question.
In his final allegations of prejudice, the defendant points to his current inability to locate one witness and the loss of another witness' memory. In connection with his alleged inability to find a certain witness, the defendant argues that one of his fellow inmates had been prepared to provide testimony that would have been helpful to the defense in the instant cases. The defendant claims, however, that during the course of the two-year delay in these proceedings, this inmate reached the end of his sentence and was released from custody. The defendant states that he now is unable to determine the current whereabouts of this former inmate.
In advancing this claim, the defendant does not explain the efforts he has made to find this former inmate, or, for that matter, indicate how or why this inmate's testimony might be useful or important. In State v. Morrill, 197 Conn. 507, 528 (1985), our Supreme Court held that "[i]f a defendant merely alleges . . . [the] inability to locate known or unknown witnesses who might testify on his behalf, he has failed to illustrate prejudice with the required degree of specificity." See State v. Silva, 43 Conn.App. 488, 499 (1996), cert. denied, 239 Conn. 956 (1997) ("The defendant also claims that he was prejudiced by the unavailability of a . . . witness who could not be located to testify at trial . . . [But] the defendant has not demonstrated how [the witness'] presence at trial would have affected the outcome of the trial."). The defendant here, therefore, has failed again to prove prejudice.
In fact, after the state was told by the defense who this inmate was, the state claimed that the inmate's testimony would have been more helpful to the state, and it would be the state's case, not the defendant's, that would be prejudiced if the inmate could not be located.
The defendant fares no better when he argues that another witness, his own father, may have suffered memory lapses which may not have been as prominent absent the delay in the trial of these cases. Once again, the defendant "fails to present any specific instances of memory loss that [would be] crucial to his case." State v. Turner, supra, 252 Conn. 743. All he does is advance a general claim of memory loss. However, our Supreme Court has held that "a claim of general weakening of witness' memories, relying on the simple passage of time, cannot, without a more specific showing, be said to prejudice the defendant." State v. Mooney, supra, 218 Conn. 121. As a result, no claim of prejudice can be sustained simply from the fact that the defendant's father may not be able to recall events as well as he once could.
For all of the above reasons, the court concludes that the defendant has failed in his effort to demonstrate that he was prejudiced by the delay about which he complains. Consequently, this factor, like those dealing with the reason for the delay and the defendant's assertion of the right to a speedy trial, weighs against the defendant
In sum, the defendant here not only failed to object to any of the delay at issue, he was the one who affirmatively requested it. Under such circumstances, this court, like the Court in Barker v. Wingo, supra, 407 U.S. 536, is "reluctant indeed to rule that a defendant was denied this constitutional right [to a speedy trial] on a record that so strongly indicates, as does this one, that the defendant did not want a speedy trial." As a result, and after balancing the requisite four factors, this court concludes that there has been no violation of the defendant's constitutional right to a speedy trial.
III. CONCLUSION
For the reasons above stated, the court concludes that the defendant has not been deprived of his statutory or constitutional right to a speedy trial. Accordingly, the defendant's motion to dismiss is hereby ordered denied.