199 Conn. 631 | Conn. | 1986
The principal issue on this appeal is whether the trial court could properly have
Certain additional background circumstances are properly set out at this point. The defendant was arrested on November 9,1982, in connection with the April 8,1977 death of Clark Burtt and was thereafter indicted by the grand jury. On April 27,1983, the trial court, Kelly, J., denied his motion to dismiss which alleged prejudicial pretrial delay. Diming jury selection and as a result of negotiations between the state and defense counsel, the state filed a substitute information on May 10,1983, charging the defendant with the crime of manslaughter in the second degree with a firearm in violation of General Statutes § 53a-56a.
Later in the same colloquy, after arguing the waivability of the statute of limitations, the defendant’s counsel tried to ascertain what had happened procedurally with the information “which the state has filed.” The court indicated that it was “[j]ust in the file, because the Court is not going to accept the plea . . . not on the charge where the statute of hmitations is run.” The defendant excepted to the ruling and jury selection continued.
On May 12, 1983, the defendant’s counsel informed the court that he had filed an interlocutory appeal from the court’s decision not to permit a plea to the substitute information and he moved for a stay under Practice Book § 3068 pending a decision by this court on that interlocutory appeal. The court asked the basis for this interlocutory appeal, opining correctly, inter alia, that it was not taken from a final judgment. Counsel, agreeing that the court had the prerogative to refuse to accept a plea and not to agree with the state’s recommendation on the substitute information, maintained that the court had the “requirement” and a “responsibility” to arraign the defendant on the substitute information and not cut the process off prior to even permitting a plea. Although he also argued that to do so forced the defendant to trial, thus removing his ability to perfect an arrangement that both he and the state felt was to their mutual advantage, the court denied his request. After the court stated that it would not permit the defendant to plead to the substitute information,
On appeal from his conviction, the defendant claims that the trial court erred in refusing to entertain the defendant’s plea of guilty to the substitute information charging manslaughter in the second degree with a firearm in violation of General Statutes § 53a-56a because of its conclusion that the defendant could not waive the defense of the statute of limitations to that crime. The defendant additionally claims that the trial court erred in admitting certain testimony of the defendant’s former wife and in denying his motion to dismiss which was based on prejudicial prearrest delays.
The defendant’s claims on the issue of the statute of limitations, although multifaceted, are essentially that the language, structure and purpose of the statute of limitations, i.e., General Statutes § 54-193,
The state concedes, in its brief, that the trial court erred insofar as it refused to accept the defendant’s waiver of the statute of limitations but argues that that concession does not mandate the reversal of his murder conviction with direction to accept the proffered plea to the substitute information. At most, it argues, a remand for further articulation and further proceedings is necessary. It asserts generally that the state of the record requires such a remand pointing out, inter alia, that neither the recommendation nor the bargain that the state is claimed to have made is on the record. In addition, it notes that the court’s statements do not “suggest,” contrary to the defendant’s claim, that the court’s refusal to take a plea was solely because of the statute of limitations. Maintaining that the “most likely interpretation” of the record is that the trial court “rejected the plea ‘regardless of the statute of limitations’ ” and given the uncontested right of the court to reject a plea bargain, the state concludes that the refusal to permit a waiver of the statute of limitations had “no material effect on the outcome of the case.” Therefore, the state claims that because the defendant did not seek to clarify the record, a “proper reading of the record” demonstrates no prejudice to the defendant and, accordingly, the judgment of conviction should stand.
Alternatively, the state argues for a remand for further articulation of the “precise basis of the trial court’s rejection of the defendant’s plea” without immediately vacating the judgment of conviction. If, the state
We start our analysis by recognizing that the state agrees that the defendant’s written waiver of the stat
Many courts have addressed the question of the waivability of the statute of limitations as dependent upon whether the statute is to be regarded as jurisdictional or as an affirmative defense. See United States v. Wild, 551 F.2d 418, 424 (D.C. Cir.), cert. denied, 431 U.S. 916, 97 S. Ct. 2178, 53 L. Ed. 2d 226 (1977); Padie v. State, 594 P.2d 50 (Alaska 1979); Tucker v. State, 417 So. 2d 1006 (Fla. App. 1982). There are courts which have treated the statute as jurisdictional and thus nonwaivable. See, e.g., Waters v. United States, 328 F.2d 739 (10th Cir. 1964); Benes v. United States, 276 F.2d 99 (6th Cir. 1960); State v. Fogel, 16 Ariz. App. 246, 492 P.2d 742 (1972); Duncan v. State, 282 Md. 385, 384 A.2d 456 (1978); State v. Stillwell, 175 N. J. Super. 244, 418 A.2d 267 (1980); Cleveland v. Hirsch, 26 Ohio App. 2d 6, 268 N.E.2d 600 (1971); Cunningham v. District Court of Tulsa County, 432 P.2d 992 (Okla. Crim. App. 1967); John v. State, 89 Wis. 2d 214, 278 N.W.2d 235 (1979), aff’d, 96 Wis. 2d 183, 291 N.W.2d 502 (1980). Some courts treat the statute as an affirmative defense, which must be asserted at or before trial, and is thus waivable. See, e.g., United States v. Walsh, 700 F.2d 846 (2d Cir.), cert. denied, 464 U.S. 825, 104 S. Ct. 96, 78 L. Ed. 2d 102 (1983); United States v. Williams, 684 F.2d 296 (4th Cir. 1982), cert. denied, 459 U.S. 1110, 103 S. Ct. 739, 74 L. Ed. 2d 961 (1983); United States v. Levine, 658 F.2d 113 (3d Cir. 1981); United States v. Akmakjian, 647 F.2d 12 (9th Cir.), cert. denied, 454
We think that the more acceptable and better reasoned approach is not to treat the statute of limitations as jurisdictional and hence nonwaivable but as an affirmative defense and hence waivable. In doing so, we incline to the position that, although the protection is given to a criminal defendant by a statute, it is in the nature of a “substantive right,” extending, where timely asserted, immunity from prosecution. See United States v. Gulf Oil Corporation, 408 F. Sup. 450, 455 (W.D. Pa. 1975); United States v. Haramic, 125 F. Sup. 128 (W.D. Pa. 1954); 22 C.J.S., Criminal Law § 223, p. 574.
A leap of logic is not required to maintain that if an accused can waive constitutional rights, he certainly can waive one conferred by the statute of limitations;
Analogy to civil statutes of limitation, which go to the remedy only, is fragile because, by contrast, criminal statutes of limitations create a bar to the prosecution of the defendant. The purposes of the latter are more comprehensive because not only are the interests of the defendant involved, but also those of society and the criminal justice system, to which legislative and judicial concerns are geared. See comment, “The Statute of Limitations In a Criminal Case: Can It Be Waived?” supra, 837. Criminal statutes of limitation fairly “represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice . . . . ” United States v. Marion, 404 U.S. 307, 322, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). Any waiver of the statute must, of course, be voluntary and intelligent and a waiver presents a question of fact in each case. United States v. Wild, supra; United States v. Levine, supra, 120 n.8; see Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).
We now turn to the refusal of the trial court to put the defendant to plea upon the substitute information. This opportunity should have been given the defendant because he did have the right to waive the statute of limitations. The defendant did not claim at trial, as he admits, that he had the right to have the trial court accept his plea to the substitute information or the right to have that court, if it accepted his plea, accept the negotiated plea bargain.
It remains, on this issue, to articulate the remand which we have determined is required. In remanding, we regard the defendant’s waiver of the statute of limitations to the crime charged in the substitute information, i.e., General Statutes § 53a-56a (“manslaughter in the second degree with a firearm”) as ongoing and the plea bargain negotiated in 1983, during jury selection, to the substitute information as extant. The plea bargain should have been placed explicitly on the record back in 1983 but the circumstances set out earlier disclose why the process never progressed to that point.
This case is remanded to the trial court, Byrne, J., with direction to permit the defendant to plead guilty to the substitute information upon finding that the plea is knowingly and voluntarily made and has a factual basis under such cases as Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983). In the event that the guilty plea is accepted and
At the trial in 1983, the defendant, who was then twenty-three years old, testified in his own defense saying that he did not “recall anything at all” about Good Friday, April 8, 1977, the day of the Burtt homicide despite his efforts to do so. He argues that he has met his burden of showing prejudice because of the delay as he was unable to recall the events of that day “so as to perhaps be able to come forward with alibi witnesses.” The state maintains that he did not demonstrate the prejudice required to prevail and that the claim is based on speculation.
“The role of due process protections with respect to pre-accusation delay has been characterized as a ‘limited’ one. United States v. Lovasco, 431 U.S. 783,
Only recently have we reiterated in Morrill that “[i]n order to establish a due process violation because of pre-accusation delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant. State v. Carrione, [supra]; see also Stoner v. Graddick, 751 F.2d 1535, 1542 (11th Cir. 1985); United States v. Puett, 735 F.2d 1331, 1334 (11th Cir. 1984); United States v. DiMuro, 540 F.2d 503, 516 (1st Cir.), cert. denied, 429 U.S. 1038, 97 S. Ct. 733, 50 L. Ed. 2d 749 (1976). Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due pro
On August 1, 1977, the Stafford Springs police department closed this case and ruled the death a “suicide.” In August, 1980, the Connecticut state police reopened their investigation as a result of which a grand jury indictment was presented. It would appear that the reopened investigation produced, inter alia, at least two written statements from James C. Waugh, Jr., a friend of the defendant, which later became full exhibits at the trial. One was dated January 2,1980, and in it Waugh stated that “about a month after Clark Burtt was found dead” the defendant said he had shot him.
We now take up the defendant’s claim that the trial court erred in permitting the defendant’s former wife to testify, over his objection, to his confidential communications to her. The defendant stated that he did
After a voir dire of Hargrove, during which she said that the defendant told her about the Burtt killing, “maybe 25 or 30 [times], something like that. I’m not sure,” including once in front of his sister and once when Waugh was present, the trial court ruled that her testimony was admissible. At that time, she also said that she would get upset when he told her that he did it, and then only after she would ask him to tell her “on his word of honor” or “[his] love for [her]” would he say that he did not do it. When she testified in the presence of the jury, she said the matter came up “roughly around maybe 30 times, around” and that the
We have never explicitly held that confidential communications between husband and wife are privileged under the common law of this jurisdiction. Our early case of State v. Hoyt, 47 Conn. 518 (1880), strongly suggests that the Hoyt court felt that there was such a privilege. See State v. Hoyt, supra, 540.
This matter is remanded to the trial court, Byrne, J., for proceedings not inconsistent with this opinion.
In this opinion the other judges concurred.
The defendant appeals from the judgment of conviction, Docket No. 12304, and has assigned as error the trial court’s actions in refusing to permit him to waive the statute of limitations in order to plead to the substitute information of May 10,1983. The defendant also filed an interlocutory appeal before trial based upon this refusal by the trial court to permit him to plead to the substitute information. Because we dispose of this statute of limitations claim in Docket No. 12304, we dismiss Docket No. 12159 as moot and also as prematurely taken prior to the rendition of a final judgment.
General Statutes § 53a-56a provides in part: “(a) A person is guilty of manslaughter in the second degree with a firearm when he commits manslaughter in the second degree as provided in section 53a-56, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, rifle, machine gun or other firearm. . .
General Statutes § 53a-56 provides in part: “(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person; or (2) he intentionally causes or aids another person, other than by force, duress or deception, to commit suicide. . . .”
In declining to arraign the defendant on the substitute information, the court said: “Mr. Seligson, I’m not going to go through the useless act of
General Statutes § 54-193 provides in relevant part: “(b) No person may be prosecuted for any offense, except a capital felony or a class A felony, 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. No person may be prosecuted for any other offense, except a capital felony or a class A felony, except within one year next after the offense has been committed.”
On appeal, the defendant argues that the remand, if error is found on the issue of the statute of limitations, should be that “the case [be remanded]
We can assume, without deciding, that such a superseding substitute information in this case would not have prevented or precluded a subsequent presentment of the defendant on the charge of murder in which there is no statute of limitations if either the proffered guilty plea or the negotiated plea bargain were not accepted by the trial court.
We have not overlooked the fact that the substitute information charges a crime which is not a lesser included offense of that charged in the grand jury indictment.
The defendant’s motion to dismiss was as follows:
“The Defendant in the above entitled action, based upon the Fifth and Fourteenth Amendments of the United States Constitution and the Constitution of the State of Connecticut hereby respectfully requests that the charges pending against him be dismissed. In support of this the Defendant presents the following:
“1. The crime of which he is accused occurred on April 8, 1977.
“2. The Defendant was arrested on November 9,1982 pursuant to a warrant issued on November 9, 1982.
“3. As a result of the excessive delay between the time of the offense charged and the arrest, the Defendant has been [compromised] in his ability to present a defense thereby depriving him of due process of law.
“WHEREFORE, the Defendant respectfully requests that the charges against him be dismissed.”
Waugh testified at the trial and his testimony from the transcript fairly read presented some inconsistencies upon which he was closely cross-examined.
Upon the completion of Pipkin's direct examination, the transcript discloses that the state handed to defense counsel two statements, presumably of Pipkin, one dated August 24,1979, and another dated September 9, 1982. Neither of these statements became full exhibits. Pipkin and Waugh each had a prior felony record.
General Statutes § 54-84a, entitled “Privilege of spouse,” provides: “If any person on trial for crime has a husband or wife, he or she shall be a competent witness but may elect or refuse to testify for or against the accused, except that either spouse who has received personal violence from the other or is the spouse of one who is charged with violation of any of sections 53-20, 53-21, 53-23, 53-25, 53-304, 53a-70, 53a-70a, 53a-71 and 53a-83 to 53a-88, inclusive, may, upon his or her trial for offenses arising out of such personal violence or from violation of the provisions of any of said sections, be compelled to testify in the same manner as any other witness.”
The defendant and Lorna Omer were married on August 5,1977, separated in December, 1980, and divorced in November, 1981. At the time of the trial, she was remarried and was known as Lorna Hargrove. There was no evidence that any of the alleged confidential communications were made before or after the marriage.
In State v. Hoyt, 47 Conn. 518 (1880), the defendant husband was charged with the murder of his father. At the trial, the state had “possession of several letters written by the defendant to his wife, (how obtained or whether they were ever in the wife’s possession did not appear),” which were offered into evidence by the state as containing admissions inconsistent with the defendant’s testimony in court with his insanity claim. Id., 540. The court admitted them over the defendant’s objection that they were confidential communications between husband and wife.
On appeal, this court found that doing so “violated no rule of evidence” and went on to say: “The question was not whether the husband or wife could have been compelled to produce the evidence, but whether, when the letters fell into the hands of a third person, the sacred shield of the privilege went with them. We think not. 1 Greenl. Ev., § 284a. ...” (Emphasis added.) Id.
The citation to Professor Greenleaf s treatise by the Hoyt court is provocative in view of the fact that Greenleaf had earlier, in 1842, announced the existence of a “distinct privilege [apart from marital status] for marital communications . . . . ” McCormick, Evidence (8d Ed. 1984) § 78, pp. 188-89.
Professor Wigmore’s position that the policy which should lie at the basis of every rule of privileged communications “appears to be satisfied in the privilege for communications between husband and wife” is appealing. That policy is that (1) the communications originate in confidence,