Opinion
No. K21N CR 09 109595 S
January 19, 2011
MEMORANDUM OF DECISION REGARDING MOTION TO DISMISS
The defendant, Duane Ziemba, filed a motion to dismiss on November 9, 2010 alleging that he was charged with felonies and was not arrested either by warrant or upon speedy information in violation of C.G.S. § 54-1f. A hearing was held on December 23, 2010 at which time the state also filed a memorandum in opposition. The defendant filed a memorandum in support of the motion on January 7, 2011. Having heard the testimony and considered the documentary evidence as well as the arguments presented and briefs submitted, the court finds the following facts:
1. During the late evening hours of September 1, 2009, Duane Ziemba, an inmate of the Corrigan-Radgowski Correctional Center, requested that he be moved to a different cell. He was escorted to a lieutenant's office for further discussion. When informed of his options pending further investigation of the request, Ziemba became agitated. Captain Robert Judd instructed Correctional Officer Jeffrey Wing to place hand restraints on Ziemba. Ziemba became combative and struck Wing in the right shoulder. Five other correctional officers who came to Wing's assistance sustained minor injuries. Ziemba also sustained minor injuries.
2. On the morning of September 2, 2009, at approximately 9:45 a.m., state police trooper Adam Chittick was dispatched to the Corrigan-Radgowski Correctional Center based on the report of an assault on a correctional officer. Chittick spoke with Judd and reviewed the report of correctional officer Wing who was not present. The defendant also was not present as he had been transported to a medical facility just prior to Chittick's arrival and not for treatment of the minor injuries he sustained the evening before.
3. Upon completion of his investigation, Chittick prepared a written report and charged the defendant with two misdemeanors, assault in the third degree in violation of 53a-61 and disorderly conduct in violation of 53a-182. He issued a Uniform Arrest Report and a $5,000 non-surety appearance bond requiring the defendant to appear for arraignment on September 17, 2009. When the defendant appeared in court on September 17, 2009, pursuant to a habeas corpus petition, his attorney stipulated to probable cause and a minimal bond was set.
4. On July 19, 2010, an Information was filed charging the defendant with one felony count of assault on a corrections officer in violation of C.G.S. § 53a-167c(a)(1). On September 2, 2010 an Amended Information was filed charging the defendant with two felony counts of assault on a corrections officer in violation of C.G.S. § 53a-167c(a)(1).
DISCUSSION
The defendant seeks dismissal of the charges claiming that he was arrested without a warrant and not upon "speedy information" as required by C.G.S. § 54-1f. He seeks dismissal pursuant to the fifth and fourteenth amendments to the United States Constitution and article first, §§ 7, 8, and 9 of the Constitution of Connecticut. The defendant argues that his warrantless arrest is not based upon speedy information, as required by C.G.S. § 54-1f. Specifically, the defendant claims that in view of the length of time which passed between the alleged incident and the filing of the charges the next day, he was not arrested based upon the speedy information of others, his warrantless arrest was illegal and the charges against him should be dismissed. The State, however, contends that the defendant's arrest was legal because there was an objective basis for a finding of probable cause that the defendant committed a felony, and thus the need to proceed on "speedy information" is moot. Essentially, the claim is that if there is probable cause to believe the person has committed a felony under § 54-1f(b), the speedy information requirement under § 54-1f(a) becomes inapplicable regardless of the charges and the officer did not need to act upon the speedy information of others pursuant to § 54-1f(a) to arrest the defendant without a warrant.
Section 54-1f(a) provides in relevant part: "Peace officers . . . shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others . . ."
As set forth in State v. Jenkins, 82 Conn.App. 111, 116-17, 842 A.2d 1148 (2004):
[Section] 54-1f(b) authorizes a police officer to conduct a warrantless arrest of any person who the officer has reasonable grounds to believe has committed or is committing a felony. The phrase reasonable grounds to believe is synonymous with probable cause . . . In order for a warrantless felony arrest to be valid, it must be supported by probable cause . . . The determination of whether probable cause exists under the fourth amendment to the federal constitution, and under article first, § 7, of our state constitution, is made pursuant to a totality of circumstances test . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed . . . The probable cause test then is an objective one . . . We consistently have held that [t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction . . . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence . . . [P]roof of probable cause requires less than proof by a preponderance of the evidence. (Citations and internal quotation marks omitted.)
The defendant claims that the requirement of "speedy information" under 54-1f(a) applies whether or not there is probable cause that a person has committed a felony under 54-1f(b). The plain language of the statute does not support the defendant's interpretation. Section 54-1f(b) expressly provides that officers are authorized to arrest an individual without a warrant if the officer has reasonable grounds to believe that the individual has committed a felony. In the present case, there was probable cause for the trooper to believe the defendant committed a felony under the totality of the circumstances. At the time of the incident the defendant was an inmate at the Corrigan-Radgowski Correctional Center. The trooper's state police report states that Captain Judd, an officer at the correctional facility, reported that the defendant refused to comply with a correctional officer's orders and then "violently swung back his right elbow, and struck [the correctional officer]." Additionally, while attempting to restrain the defendant, five other correctional officers sustained "minor injuries." Considering the totality of the circumstances, the facts known to the trooper at the time of the incident were sufficient for him to believe the defendant had committed an assault on an employee of the Department of Correction. As a result, the trooper had probable cause to believe the defendant committed a felony and § 54-1f(b) authorized him to lawfully arrest the defendant without a warrant.
"The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . A statute is ambiguous if, when read in context, it is susceptible to more than one reasonable interpretation . . . Additionally, statutory silence does not necessarily equate to ambiguity." (Citations omitted; internal quotation marks omitted.) In re Jan Carlos D., 297 Conn. 16, 21, 997 A.2d 471 (2010).
General Statutes § 53a-167c states in relevant part "(a) A person is guilty of assault of public safety, emergency medical or public transit personnel when, with intent to prevent a reasonably identifiable . . . employee of the Department of Correction . . . from performing his or her duties, and while such . . . employee . . . is acting in the performance of his or her duties, (1) such person causes physical injury to such . . . employee . . . (b) Assault of public safety, emergency medical or public transit personnel is a class C felony."
The fact that the trooper charged the defendant with two misdemeanors does not negate the existence of probable cause that a felony was committed. For the reasons set forth by the state in its memorandum in opposition to the defendant's motion to dismiss, the officer's subjective judgment as to which crime should be charged does not determine whether there is probable cause that a felony was committed. Devenpeck v. Alford, 543 U.S. 146, 153 (2004); See also State v. Duffus, 125 Conn.App. 17, 29 n. 9 (2010), citing Brigham City v. Stuart, 547 U.S. 398, 404 (2006).
Moreover, as argued by the state, even if the defendant's arrest were determined to be illegal, the motion should still be denied because his arrest has not affected the fairness of his prosecution. As our Supreme Court stated in State v. Fleming, 198 Conn. 255, 263 (1986):
Where the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges . . . Due process of law is satisfied when one present in court is convicted of a crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.
There is no evidence that the fairness of the defendant's prosecution has been in any way impaired by his arrest. Although the defendant argues that the absence of sworn statements of the witnesses amounts to unfairness in the defendant's prosecution, the statute at issue cannot be construed as requiring officers seeking a warrant to obtain sworn statements from particular witnesses. Therefore, even if the arrest were found to be unlawful and not based upon speedy information, the defendant is not entitled to a dismissal.
For all of the foregoing reasons, the motion to dismiss is DENIED.
It is So Ordered, this 19th day of January 2011.