
    State of Connecticut v. Wady Cordova
    Appellate Session of the Superior Court
    File No. 1151
    Argued January 26
    decided July 16, 1982
    
      William F. Gallagher, with whom, on the brief, was Randy L. Cohen, student intern, for the appellant (defendant).
    
      Carl Schuman, assistant state’s attorney, with whom, on the brief, were Edward J. Mullarkey, assistant state’s attorney, and Cathryn Krinitsky, student intern, for the appellee (state).
   F. Hennessy, J.

The defendant was found guilty of failure to grant the right of way to an emergency vehicle in violation of § 14-283 of the General Statutes. The action arose from a collision between a motorcycle operated by the defendant and a police car operated by a peace officer of the city of New Haven on July 1, 1979. An arrest warrant was signed by a judge of the Superior Court on September 27, 1979, and the defendant was arrested eighteen months later on March 9, 1981. Before trial, the defendant moved to have the charges, which are misdemeanors, dismissed on the ground that he was being prosecuted beyond the one-year limitation period prescribed by General Statutes (Rev. to 1979) § 54-193. This motion was denied and the defendant was subsequently convicted, from which he now appeals.

The first issue presented involves the meaning of the word “prosecuted” as it is used in § 54-193; specifically, whether an arrest warrant that is issued within the one-year limitation period governing misdemeanors, but which is executed over one year from the date of the alleged offense, violates this statute of limitations. The state argues that the mere issuance of a warrant commences prosecution and tolls the limitation period. The defendant contends, however, that the execution of the arrest warrant commences prosecution for the purpose of satisfying the statute of limitations.

Statutes of limitations “may be classified in three groups: (1) statutes which provide that an indictment must be found and returned within a specified time after the commission of the offense charged; (2) statutes which do not refer to the time of the finding of an indictment or the filing of an information, but merely provide that prosecutions must be commenced within a specified time; and (3) statutes which provide that if an indictment is quashed, set aside, dismissed, or otherwise fails, and a new indictment is found or a new information is filed, the time elapsing between the return or filing of the two indictments or informations, respectively, shall not be counted as part of the period of limitation; or that a new indictment may be found and returned or a new information filed within a specified time after the first indictment or information is quashed, or otherwise disposed of.” 1 Wharton, Criminal Law and Procedure (Anderson) § 184, p. 426. Our statute, § 54-193, does not refer to the time of finding of the indictment or the filing of an information, but merely provides that prosecution must be commenced within a specified time. Since § 54-193 does not define when prosecution commences, it must be analyzed in the context of the policies underlying limitations statutes.

Our legal system has developed certain safeguards to protect an accused from being prosecuted for stale criminal charges. The primary protection is provided by the statute of limitations. United States v. Marion, 404 U.S. 307, 322, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971); United States v. Ewell, 383 U.S. 116, 122, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966); State v. Echols, 170 Conn. 11, 16-17, 364 A.2d 225 (1975); State v. Baker, 164 Conn. 295, 296, 320 A.2d 801 (1973). In deciding when the statute of limitations begins to run, the United States Supreme Court has been guided by a number of considerations: “The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.” Toussie v. United States, 397 U.S. 112, 114-15, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970); see United States v. Marion, supra, 323.

Before a defendant can successfully raise the statute of limitations as a defense, however, the limitation period must have expired prior to the filing of formal criminal charges, since this safeguard only protects against “pre-indictment” delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977); United States v. Marion, supra, 324. A different safeguard exists to protect an accused from delay occurring after charges have been filed against him. Such “post-indictment” delay is protected by the constitutional right to a speedy trial. U.S. Const., amend. VI; Conn. Const., art. I § 8. Unites States v. MacDonald, 456 U.S. 1, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982); United States v. Lovasco, supra, 788; United States v. Marion, supra, 320; State v. L’Heureux, 166 Conn. 312, 317-18, 348 A.2d 578 (1974); State v. Hodge, 153 Conn. 564, 567-68, 219 A.2d 367 (1966). The issue before us, therefore, is to determine which safeguard is applicable when the arrest is by warrant.

The general rule is that when an arrest warrant is used to charge the commission of a criminal offense, the mere issuance of the warrant commences prosecution. 1 Wharton, loe. cit.; 21 Am. Jur. 2d, Criminal Law § 410; 22 C.J.S. 607-608, Criminal Law § 234.

Under our law, criminal charges are made against an accused upon complaint when an arrest warrant is issued upon probable cause. General Statutes § 54-2a; Practice Book §§ 593, 594. The offense is specified in the accompanying information signed by the prosecuting authority. Practice Book § 617. The issuance of the arrest warrant, like the filing of a federal indictment, starts the prosecutorial machinery that will provide notice to the accused of the charges against him. See, e.g., United States v. Grady, 544 F.2d 598, 601 (2d Cir. 1976); United States v. Feinberg, 383 F.2d 60, 64-65 (2d Cir. 1967) (dictum), cert. denied, 389 U.S. 1044, 88 S. Ct. 788, 19 L. Ed. 2d 836 (1968). After arrest upon execution of the warrant, the defendant must be brought before the court without undue delay. General Statutes § 54-2a; Practice Book § 594; accord, Fed. R. Crim. Proc. 9(c)(1), 4(c)(1), 4(d)(3). Thus, by issuing the arrest warrant, with the attached information, the state has filed charges against the defendant that commenced the prosecution and thereby tolled the statute of limitations. Since the asserted delay here occurred after the warrant was issued, this is a case of “post-indictment” or “post-charge” delay that must be measured under principles of speedy trial rather than statute of limitations.

In the case of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the United States Supreme Court established a four part balancing test. When faced with a speedy trial claim, the court must examine (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Id., 530-33. Despite the failure of both the defendant and the state to argue this as a speedy trial case, we are bound to examine this case in light of these four factors, since “the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment.” Moore v. Arizona, 414 U.S. 25, 27-28, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973), quoting Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). Upon doing so, we note that the defendant made no claim or showing of prejudice in the trial court, as was necessary to support his speedy trial claim. Accordingly, we hold that the defendant was not denied his right to a speedy trial.

The second claim raised by the defendant is that there was insufficient evidence to support a finding that there was a violation of § 14-283. The gravamen of this claim is that there was no evidence of wilful or negligent conduct on the part of the defendant as required by § 14-283 (e). The prosecution and the defense agree that the wilfulness of the defendant in acting in the manner in which he did is not an issue in this appeal.

The defendant claims that the trial court relied solely upon a violation of § 14-283 (e) to reach its judgment and failed to consider the law as interpreted in Fasanelli v. Terzo, 150 Conn. 349, 189 A.2d 500 (1963), which states that the obligation of a driver to pull over to the right in order to grant the right of way to an emergency vehicle is not absolute when it may be more practical to grant the right of way by making a left turn.

The defendant’s claim that there was insufficient evidence to sustain a finding of guilty is based upon the assumption that the court found facts which showed that the defendant was attempting to make a left hand turn, and after it found them or should have found them did not apply them to the law as set forth in the Fasanelli case.

The facts in this case are in dispute and the critical fact which the parties have presented to this court for review is whether the defendant was attempting to make a left hand turn. The trial court in its decision did not note the possibility that the defendant was making a left hand turn but relied solely upon the defendant’s failure to immediately drive to a position parallel to and as close as possible to the right hand edge or curb of the roadway as required by § 14-283 (e).

The failure of the trier to articulate his reasons for not considering the prospect that the defendant was attempting to make a left hand turn is not a fatal omission. The trial court heard the evidence and had an opportunity to view the witnesses. If the trial court rejected the defendant’s contention that he was attempting to make a left hand turn we as an appellate court cannot retry the facts or pass upon the credibility of the witnesses. State v. Penland, 174 Conn. 153, 158, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978); Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975). The facts reviewed as presented lead us to conclude that the court could reasonably find as it did. See State v. Nerkowski, 184 Conn. 520, 524, 440 A.2d 195 (1981).

There is no error.

In this opinion Daly and Covello, Js., concurred. 
      
       A nolle prosequi was entered on the charge of operating without a license when the defendant produced a valid learn, r’s permit.
     
      
       General Statutes (Rev. to 1979) § 54-193 provides: “No person shall 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; nor shall any person be prosecuted for any other offense, except a capital felony or a class A felony, but within one year next after the offense has been committed; but, if the person, against whom an indictment, information or complaint for any of said offenses is brought, has fled from and resided out of this state, during the period so limited, it may be brought against him at any time, within such period, during which he resides in this state, after the commission of the offense; and, when any suit, indictment, information or complaint for any crime may be brought within any other time than is limited by this section, it shall be brought within such time. There shall be no limitation of time within which a person may be prosecuted for a capital felony or a class A felony.”
     
      
       The due process clause of the fifth amendment also protects an accused against oppressive pre-indictment delay. Such a claim, which was not made in this case, requires a showing that the right to a fair trial has been actually and substantially prejudiced, or that the government intentionally delayed in order to gain an advantage. United States v. Lovasco, 431 U.S. 783, 789-91, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977); United States v. Villa, 470 F. Sup. 315, 319 (N.D.N.Y. 1979); State v. L’Heureux, 166 Conn. 312, 317-18, 348 A.2d 578 (1974); State v. Hodge, 153 Conn. 564, 567-68, 219 A.2d 367 (1966), citing Ross v. United States, 349 F.2d 210 (D.C. Cir. 1965).
     
      
       The American Bar Association Standards for the Administration of Criminal Justice state the rule more generally in its section on speedy trials: Prosecution commences on the date that charges are filed against an accused, whether by indictment, arrest warrant or otherwise. 2 ABA Standards for the Administration of Criminal Justice, c. 12, Speedy Trial §2.2.
     
      
       Initially the state asserts that the failure of the defendant to move for judgment of acquittal in accordance with Practice Book §§ 897 through 900 precludes him from raising the insufficiency of the evidence on appeal. We do not agree.
      A review of Practice Book § 897 (Motion for Acquittal) and the sections following which address mistrials and jury verdicts does not convince the court that these Practice Book sections are applicable to the matter before us since this case was tried to the court. In addition, a review of the actions of the trial court for the purpose of making a determination that the evidence was sufficient to sustain a conviction is always a proper subject for appellate review if such a claim is made upon appeal. State v. Bill, 146 Conn. 693, 694, 155 A.2d 752 (1959); State v. Schofield, 114 Conn. 456, 459, 159 A. 285 (1932).
     
      
       General Statutes § 14-283 (e) provides: “Upon the immediate approach of an emergency vehicle making use of such an audible warning signal device and such visible flashing or revolving lights or of any state or local police vehicle properly and lawfully making use of an audible warning signal device only, the operator of every other vehicle in the immediate vicinity shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a state or local police officer or fireman as provided in section 7-313a.”
      Even though § 14-283 (e) contains no requirement that the state prove that the defendant acted wilfully or negligently, such a requirement is provided by § 14-283 (g) which is the controlling paragraph of § 14-283. Section § 14-283 (g) provides: “Any person who wilfully or negligently obstructs or retards any ambulance while answering any emergency call or taking a patient to a hospital, or any vehicle used by a fire department or any officer or member of a fire department while on the way to a fire, or while responding to an emergency call, or any vehicle used by the state police or any local police department, or any officer of the division of state police within the department of public safety or any local police department while on the way to an emergency call or in the pursuit of fleeing law violators, shall be fined not more than fifty dollars or imprisoned not more than seven days or both.”
     