State v. Freeman ( 2020 )

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STATE OF CONNECTICUT v. TERRY FREEMAN
(AC 43014)
Bright, C. J., and Cradle and Alexander, Js.
Syllabus
Convicted, on a conditional plea of nolo contendere, of the crime of robbery
in the first degree, the defendant appealed to this court, claiming that
the trial court erred in denying his motion to dismiss because his prosecu-
tion was time barred by the applicable five year statute of limitations
(§ 54-193 (b)). The warrant for the defendant’s arrest had been obtained
by the police two weeks before the expiration of the limitation period,
however, it was not executed until seven days after the statute of limita-
tions had expired. Held that the trial court properly denied the defen-
dant’s motion to dismiss: contrary to the defendant’s claim, the trial
court applied the correct legal test, as set forth in State v. Swebilius
(325 Conn. 793), in determining whether the statute of limitations had
been tolled; moreover, the trial court correctly determined that the state
made reasonable efforts to serve the arrest warrant before the statute
of limitations had expired and that the delay in the service of the warrant
was reasonable, as the stipulated facts showed that, following the defen-
dant’s confession to the robbery, the state expeditiously prepared and
obtained an arrest warrant and a writ of habeas corpus to transport the
defendant, who was incarcerated at the time, to the Superior Court to
serve him with the warrant before the expiration of the limitation period,
and the fact that the defendant was not transported to the Superior
Court and served with the warrant until seven days after the statute of
limitations had expired did not undermine the reasonable efforts of the
state; furthermore, the court properly based its decision, in part, on the
state’s assertion that the nine day delay from the signing of the writ of
habeas to the transport of the defendant was not unusual given the
logistical, practical and safety precautions associated with transporting
a person from a correctional facility to a courthouse, as it was within
the purview of the court to use its knowledge of the inner workings
of the courts and the processes by which incarcerated persons are
transported to the court in its determination of the state’s efforts.
Argued September 14—officially released December 1, 2020
Procedural History
Information charging the defendant with the crimes
of robbery in the first degree, conspiracy to commit
robbery in the first degree, larceny in the fifth degree
and criminal possession of a firearm, brought to the
Superior Court in the judicial district of Ansonia-Mil-
ford, where the court, Brown, J., denied the defendant’s
motion to dismiss; thereafter, the defendant was pre-
sented to the court, Brown, J., on a conditional plea of
nolo contendere to robbery in the first degree; judgment
of guilty in accordance with the plea; subsequently,
the state entered a nolle prosequi as to the charges of
conspiracy to commit robbery in the first degree and
criminal possession of a firearm; thereafter, the court
dismissed the charge of larceny in the fifth degree, and
the defendant appealed to this court. Affirmed.
James E. Mortimer, assigned counsel, for the appel-
lant (defendant).
Samantha L. Oden, deputy assistant state’s attorney,
with whom, on the brief, were Margaret E. Kelley,
state’s attorney, and Matthew Kalthoff, assistant state’s
attorney, for the appellee (state).
Opinion
ALEXANDER, J. The defendant, Terry Freeman,
appeals from the judgment of conviction, rendered after
his conditional plea of nolo contendere, of robbery in
the first degree in violation of General Statutes § 53a-
134 (a) (3). On appeal, the defendant claims that the
trial court erred in denying his motion to dismiss,
arguing that the prosecution was time barred by the
five year statute of limitations set forth in General Stat-
utes § 54-193 (b). We are not persuaded and, accord-
ingly, affirm the judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to this appeal. On November 5, 2018,
Jeffrey Gabianelli, a detective with the West Haven
Police Department, received a letter from the defendant
containing information about an armed robbery that
had occurred at the Wine Press Liquor Store in West
Haven on November 29, 2013. The next day, Gabianelli
visited the defendant at the Carl Robinson Correctional
Institution in Enfield where the defendant was incarcer-
ated on unrelated charges.1 The defendant confessed
to Gabianelli as to his involvement in the November
29, 2013 robbery. On November 9, 2018, Gabianelli pre-
pared an arrest warrant. On November 15, 2018, a Supe-
rior Court judge signed the warrant. On November 19,
2018, John Laychak, a West Haven police officer,
obtained the signed warrant and submitted a request
that the Office of the State’s Attorney prepare an appli-
cation for a writ of habeas corpus to transport the
defendant to the Superior Court in the judicial district
of Ansonia-Milford for service of the arrest warrant. On
November 21, 2018, the Office of the State’s Attorney
prepared the application for a writ of habeas corpus
requesting that the defendant be transported to the
court on December 6, 2018. On November 27, 2018, a
prosecutor and a clerk of the court signed the writ of
habeas corpus. On December 6, 2018, the defendant
was transported to the Superior Court where he was
served with the arrest warrant.
Thereafter, the defendant filed a motion to dismiss,
claiming that prosecution was barred due to the lapse
of the five year statute of limitations set forth in § 54-193
(b).2 The defendant argued that the statute of limitations
had lapsed on November 29, 2018, five years after the
robbery had occurred, and that the state had failed to
proffer sufficient evidence to show that the delay in
the execution of the arrest warrant until December 6,
2018, was reasonable.
The trial court denied the motion, finding that the
state had offered ‘‘some evidence explaining why the
delay was reasonable’’ and that the state acted ‘‘reason-
ably and diligently’’ in its preparation and execution of
the warrant. The defendant thereafter entered a condi-
tional plea of nolo contendere to the charge of robbery
in the first degree.3 The court subsequently sentenced
the defendant to a term of one year of imprisonment
to be served consecutively to his current sentence.
On appeal, the defendant claims that the court erred
in denying his motion to dismiss. He argues that the
court misinterpreted and misapplied State v. Crawford,
202 Conn. 443, 521 A.2d 1034 (1987), and State v. Swebi-
lius, 325 Conn. 793, 159 A.3d 1099 (2017). He further
argues that the state failed to proffer sufficient evidence
to demonstrate the reasonableness of the delay in ser-
vice of the arrest warrant beyond the statute of limita-
tions under these cases. We disagree.
We initially address the standard of review for a trial
court’s denial of a motion to dismiss. ‘‘Because a motion
to dismiss effectively challenges the jurisdiction of the
court, asserting that the state, as a matter of law and
fact, cannot state a proper cause of action against the
defendant, our review of the court’s legal conclusions
and resulting denial of the defendant’s motion to dis-
miss is de novo. . . . Factual findings underlying the
court’s decision, however, will not be disturbed unless
they are clearly erroneous. . . . The applicable legal
standard of review for the denial of a motion to dismiss,
therefore, generally turns on whether the appellant
seeks to challenge the legal conclusions of the trial
court or its factual determinations.’’ (Internal quotation
marks omitted.) State v. Crosby, 182 Conn. App. 373,
383, 190 A.3d 1, cert. denied, 330 Conn. 911, 193 A.3d
559 (2018).
In State v. Crawford, supra, 202 Conn. 444–45, the
defendant moved to dismiss the information charging
him with two misdemeanor offenses. Although the
arrest warrant for the offenses was issued before the
expiration of the one year statute of limitations, the
warrant was not served on the defendant until more
than two years after the offenses were committed. Id.,
445. In affirming the trial court’s denial of the defen-
dant’s motion to dismiss, our Supreme Court stated:
‘‘When an arrest warrant has been issued, and the prose-
cutorial official has promptly delivered it to a proper
officer for service, he has done all he can under our
existing law to initiate prosecution and to set in motion
the machinery that will provide notice to the accused
of the charges against him. When the prosecutorial
authority has done everything possible within the
period of limitation to evidence and effectuate an intent
to prosecute, the statute of limitations is tolled.’’ (Foot-
note omitted.) Id., 450. Nevertheless, the court held
that, ‘‘in order to toll the statute of limitations, an arrest
warrant, when issued within the time limitations . . .
must be executed without unreasonable delay.’’ Id.,
450–51. The court declined to adopt a per se approach
to determining the reasonableness of the execution of
an arrest warrant and explained that what constitutes
a ‘‘reasonable period of time is a question of fact that
will depend on the circumstances of each case.’’ Id.,
451. The court stated: ‘‘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 toll the statute
of limitations.’’ Id. Because there was an absence of
evidence showing an unreasonable delay in service on
the defendant, our Supreme Court affirmed the trial
court’s denial of the defendant’s motion to dismiss.
Id., 452.
In cases following Crawford, this court articulated a
burden shifting framework where, ‘‘once a defendant
puts forth evidence to suggest that [he or] she was not
elusive, was available and was readily approachable,
the burden shifts to the state to prove that the delay
in executing the warrant was not unreasonable.’’ State
v. Soldi, 92 Conn. App. 849, 857, 887 A.2d 436, cert.
denied, 277 Conn. 913, 895 A.2d 792 (2006); see also
State v. Woodtke, 130 Conn. App. 734, 740, 25 A.3d
699 (2011).
In State v. Swebilius, supra, 325 Conn. 804, our
Supreme Court expanded on Crawford and affirmed
this burden shifting framework. The court concluded
that, ‘‘if the defendant can demonstrate his availability
during the statutory period, the state must make some
effort to serve the arrest warrant before the relevant
statute of limitations expires, or to offer some evidence
explaining why its failure to do so was reasonable under
the circumstances.’’ Id., 814. Finding that the trial court
had applied the wrong legal standard in concluding that
the delay was reasonable based solely on the length
of the delay, the court remanded the case for further
proceedings for the state to have the opportunity ‘‘to
demonstrate that it made reasonable efforts to execute
the warrant before the expiration of the statute of limita-
tions or to explain why its failure to do so was reason-
able under the circumstances.’’ Id., 815.
In the present case, the state conceded that the defen-
dant satisfied his preliminary burden because the defen-
dant was not elusive and was available for arrest
throughout the relevant time period. We agree and con-
clude that the defendant has satisfied his burden. Thus,
under Swebilius, the state then had the burden to show
that, notwithstanding the defendant’s availability, any
delay in service of the warrant after the expiration of
the statute of limitations was reasonable. See id., 807.
The defendant first argues that, as a result of the trial
court’s misinterpretation and misapplication of Swebi-
lius, it erred in finding that the state had satisfied its
burden. Specifically, he argues that the trial court imple-
mented the wrong test when it relied on language in
Swebilius that ‘‘the state must make some effort to
serve the arrest warrant before the relevant statute of
limitations expires . . . .’’ Id., 814. He further argues
that the proper test is that ‘‘[t]he state must make rea-
sonable efforts to execute the warrant before the expi-
ration of the statute of limitations or to explain why
its failure to do so was reasonable under the circums-
tance.’’(Emphasis omitted; internal quotation marks
omitted.) We are not persuaded.
In Swebilius, a search warrant was executed in May,
2008, and the police seized ‘‘thirty-four computer
related items, which were submitted on the same day
to the state forensic laboratory for analysis. The police
did not receive the results of the forensic analysis until
April 2, 2013, and another month elapsed before they
secured a warrant for the defendant’s arrest. The arrest
warrant was issued on May 9, 2013, nineteen days before
the expiration of the five year limitation period of Gen-
eral Statutes (Rev. to 2007) § 54-193 (b). A short time
after the limitation period had expired, the defendant
contacted the state police seeking the return of the
property seized from his residence on May 28, 2008. As
a result of this inquiry, the defendant learned about
the warrant for his arrest, and, on June 10, 2013, he
voluntarily surrendered to the state police.’’ (Emphasis
added; footnote omitted.) State v. Swebilius, supra, 325
Conn. 797. Therefore, there was a thirty-two day delay
in the execution of the warrant. Id., 799 n.4. At the
hearing on the defendant’s motion to dismiss, the state
proffered no evidence and instead argued that ‘‘the
delay was not unreasonable because of its short dura-
tion . . . .’’ Id., 798. The trial court agreed. Id., 798–99.
Our Supreme Court noted that the trial court had
applied an incorrect legal standard by relying solely on
the length of the delay in its ruling; id., 799 n.5 (‘‘we
do not believe that simply citing a period of time and
stating that ‘common sense’ makes that period of time
reasonable can, without more, render the trial court’s
determination one of fact’’); and ordered that, ‘‘on
remand, the state must be afforded the opportunity to
demonstrate that it made reasonable efforts to execute
the warrant before the expiration of the statute of limita-
tions or to explain why its failure to do so was reason-
able under the circumstances.’’ Id., 815.
The court explained that the rationale behind its hold-
ing was to prevent the tolling of the statute of limitations
where no effort is made by the state, stating: ‘‘[W]e
agree with the drafters of § 1.06 (5) of the Model Penal
Code that [i]t is undesirable . . . to toll the statute of
limitations in instances [in which] the warrant is issued
but no effort is made to arrest a defendant whose
whereabouts are known.’’ (Emphasis added; footnote
omitted; internal quotation marks omitted.) Id., 814.
The court, acknowledging the boundaries of its holding,
stated: ‘‘To be sure, our decision in the present case is
not intended to impose an undue burden on the state.
We have concluded merely that, if the defendant can
demonstrate his availability during the statutory period,
the state must make some effort to serve the arrest
warrant before the relevant statute of limitations
expires, or to offer some evidence explaining why its
failure to do so was reasonable under the circum-
stances.’’ Id. Thus, proof of appropriate efforts by the
state may constitute the requisite reasonableness to toll
the statute of limitations.
Swebilius, however, does not qualify the efforts the
state must show to satisfy its burden nor explain the
degree of effort necessary. The court in Swebilius
stated that, ‘‘on remand, the state must be afforded the
opportunity to demonstrate that it made reasonable
efforts to execute the warrant before the expiration of
the statute of limitations or to explain why its failure
to do so was reasonable under the circumstances.’’
(Emphasis added.) Id., 815. This language is instructive
as to what effort the state must demonstrate to satisfy
its burden and is consistent with the dictates of State
v. Crawford, supra, 202 Conn. 450–51 (‘‘in order to toll
the statute of limitations, an arrest warrant, when issued
within the time limitations . . . must be executed with-
out unreasonable delay’’). Thus, the state must prove
that any delay in serving the warrant beyond the statute
of limitations was reasonable. What efforts the state
made to accomplish service and the reasons why ser-
vice was not accomplished before the statute of limita-
tions expired are necessary parts of the court’s reason-
ableness analysis.
Prior decisions of this court also have utilized a simi-
lar reasonableness analysis. In State v. Soldi, supra, 92
Conn. App. 860, this court reversed the judgment of the
trial court denying the defendant’s motion to dismiss
claiming that the prosecution was time barred because
of unreasonable delay or lack of due diligence in execut-
ing the arrest warrant. An arrest warrant for a violation
of probation had been issued in August, 1997, and was
not executed until January 28, 2003, when the defendant
appeared in court on unrelated charges. Id., 851. This
court determined that the defendant had proffered suffi-
cient evidence establishing that she was available for
arrest during the relevant time, and, therefore, the bur-
den shifted to the state to show why the delay in execu-
tion of the warrant was reasonable. Id., 860. Because
the state ‘‘offered no evidence that the five year delay
in the execution of the warrant was reasonable,’’ this
court concluded that the state had not met its burden
and reversed the trial court’s judgment denying the
defendant’s motion to dismiss. Id.
In State v. Woodtke, supra, 130 Conn. App. 736, the
police had not executed an arrest warrant until two
years and ten months after the warrant had been
issued.4 This court, applying Crawford, determined that
the trial court’s reliance on the fact that the New Haven
Police Department is ‘‘a very busy urban police depart-
ment is not enough for [the state] to avoid its obligation
to serve the warrants in a timely manner.’’ (Internal
quotation marks omitted.) Id., 744. This court stated:
‘‘Although the police may have faced pressing matters
that demanded their immediate attention during the
period of delay, this alone will not fulfill the state’s
burden of showing reasonableness of delay and due
diligence. There must be sufficient effort on the part
of the police department to ensure that warrants are
timely served, even for simple misdemeanors.’’ Id.
Because there was no evidence proffered to show the
actual efforts made by the police department to execute
the warrant, this court determined that the state could
not demonstrate that the delay was reasonable and
reversed the judgment of the trial court and remanded
the case with direction to grant the defendant’s motion
to dismiss. Id., 745.
In the present case, the defendant argues that the
court applied the incorrect legal test because it focused
on whether the state made ‘‘some effort’’ to serve the
warrant and did not examine whether the state had
proved that those efforts were reasonable. We disagree.
In its decision, the trial court began its analysis by
stating that the ‘‘proper line of inquiry . . . once avail-
ability has been established, is whether the state made
some effort to serve the warrant or, having failed to do
so, whether the state offered some evidence explaining
why its failure was reasonable.’’ The court continued by
focusing on the reasonableness of the delay in service,
stating: ‘‘[T]he court is required to interrogate the facts
to determine the factual basis for the delay and deter-
mine if said delay was reasonable. The defendant
argued that the fact he was in custody during the limita-
tion period essentially negates any argument for finding
of reasonable delay. The court finds that it is required
to conduct a review of the facts to determine what
efforts, if any, [were] made by the state to serve the
warrant, or whether there is some evidence explaining
why its failure was reasonable.’’ The court then consid-
ered whether the state presented evidence that its delay
in service was reasonable, considering the facts of the
case, and it concluded that the delay in the execution
of the warrant was reasonable. Consequently, we con-
clude that the court applied the correct legal test as set
forth by our Supreme Court in Swebilius and by this
court in Soldi and Woodtke.
With this standard in mind, we address the defen-
dant’s next argument. The defendant argues that the
state failed to proffer sufficient evidence to satisfy its
burden under Swebilius. The state argues that the stipu-
lated facts admitted into evidence show the requisite
effort made by the state and the reasonableness in the
delay in the execution of the arrest warrant. We agree
with the state.
As indicated in the stipulated facts, there was a period
of thirty-one days between Gabianelli’s receipt of the
defendant’s letter on November 5, 2018, and the execu-
tion of the arrest warrant on December 6, 2018. Follow-
ing the defendant’s confession to Gabianelli, the state
made continuous efforts to obtain a warrant and to
facilitate the appropriate transportation of the defen-
dant to the Superior Court for the execution of that
warrant; efforts that were all made before the statute
of limitations expired.5 The arrest warrant was executed
seven days after the statute of limitations expired. The
trial court’s reliance on these facts in its finding of effort
by the state and in determining the reasonableness of
the delay was proper.
The defendant directs us to Swebilius and Woodtke
to support his claim that the evidence proffered in this
case was insufficient. We are not persuaded and find
the facts of those cases to be distinguishable.
In the present case, in contrast to those cases, evi-
dence showing the state’s efforts in expeditiously
obtaining the arrest warrant and processing the execu-
tion of the warrant was before the trial court. Accord-
ingly, the trial court properly could have relied on this
evidence in its determination that the delay was reason-
able. The stipulated facts show that the state prepared
and signed the warrant and prepared a writ of habeas
corpus, all before the statute of limitations expired.
Specifically, on November 21, 2018, eight days before
the statute of limitations was set to expire, the Office
of the State’s Attorney prepared the application for a
writ of habeas corpus, requesting that the defendant
be transported to the Superior Court on December 6,
2018, and, on November 27, 2018, a prosecutor and a
clerk of the court signed the writ of habeas corpus.
The fact that the defendant was not transported to the
Superior Court and served with the warrant until after
the expiration of the statute of limitations does not
undermine the reasonable efforts of the state.
The trial court based its decision, in part, on the
argument by the state that the nine day delay from the
signing of the habeas writ to the transportation of the
defendant was not unusual, as a matter of course, given
the logistical, practical and safety precautions that must
be taken whenever an incarcerated individual is trans-
ported from a correctional facility to a courthouse. We
note that it is within the purview of the trial court to
use its knowledge of the inner workings of the courts
and the process by which incarcerated persons are
transported to a court in its determination of the reason-
ableness of the state’s efforts. See State v. Abushaqra,
164 Conn. App. 256, 264–65, 137 A.3d 861 (2016) (‘‘[t]he
appellate courts of this state consistently have recog-
nized that the trial court has broad inherent authority
to manage judicial proceedings in a variety of circum-
stances’’); see also State v. Swebilius, supra, 325 Conn.
814–15 (‘‘Indeed, in cases involving relatively brief
delays, evidence of a legitimate need to prioritize com-
peting public safety responsibilities may well be suffi-
cient to demonstrate compliance with the dictates of
Crawford. That fact sensitive determination, however,
is a matter properly within the reasoned judgment of
the fact finder.’’ (Footnote omitted.)).
Here, the trial court properly considered the evidence
before it and determined that the state made efforts to
serve the arrest warrant before the relevant statute of
limitations expired and that the delay in service was
reasonable. We conclude that the trial court did not err
in its determination.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The stipulated facts entered into evidence with the trial court indicate
that the defendant had been incarcerated in the state of Connecticut since
November 27, 2015.
2
General Statutes § 54-193 (b) 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.’’
3
The defendant’s plea of nolo contendere was entered pursuant to General
Statutes § 54-94a, which provides in relevant part: ‘‘When a defendant, prior
to the commencement of trial, enters a plea of nolo contendere conditional
on the right to take an appeal from the court’s denial of the defendant’s
. . . motion to dismiss, the defendant after the imposition of sentence may
file an appeal within the time prescribed by law provided a trial court has
determined that a ruling on such . . . motion to dismiss would be disposi-
tive of the case. The issue to be considered in such an appeal shall be
limited to whether it was proper for the court to have denied . . . the
motion to dismiss. A plea of nolo contendere by a defendant under this
section shall not constitute a waiver by the defendant of nonjurisdictional
defects in the criminal prosecution.’’
4
The applicable statute of limitations in that case was one year, pursuant
to General Statutes (Rev. to 2005) § 54-193 (b). The arrest warrant in Woodtke,
like the arrest warrant in the present case, was issued within the statute of
limitations. See State v. Woodtke, supra, 130 Conn. App. 738.
5
We further note and take judicial notice of the fact that, during the
period between the receipt of the defendant’s letter and the expiration of
the statute of limitations, there were two state holidays whereby the court
and the Office of the State’s Attorney were closed. See Moore v. Moore, 173
Conn. 120, 123 n.1, 376 A.2d 1085 (1977) (‘‘[t]here are two types of facts
considered suitable for the taking of judicial notice: those which are common
knowledge and those which are capable of accurate and ready demonstra-
tion’’ (internal quotation marks omitted)). Veterans Day was Monday,
November 12, 2018, and Thanksgiving Day was Thursday, November 22,
2018. See, e.g., General Statutes § 1-4. Those dates, in conjunction with the
six weekend days during this time, effectively gave the state a total of sixteen
days to apply for and to execute the arrest warrant before the statute of
limitations expired.