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State v. Swebilius

Supreme Court of Connecticut

May 30, 2017

STATE OF CONNECTICUT
v.
JON SWEBILIUS

          Argued September 23, 2016

          Daniel M. Erwin, for the appellant (defendant).

          Harry Weller, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Leon F. Dalbec, Jr., and James Dinnan, senior assistant state's attorneys, for the appellee (state).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. [*]

          OPINION

          PALMER, J.

         In State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987), this court held that a criminal statute of limitations will be tolled by the issuance of an arrest warrant within the statutory limitation period, as long as the warrant is executed ‘‘without unreasonable delay.'' Id., 451. The defendant, Jon Swebilius, was charged with possession of child pornography in the first degree in violation of General Statutes (Rev. to 2007) § 53a-196d (a) and was arrested thirty-two days after the issuance of a warrant for his arrest and thirteen days after the expiration of the applicable five year statute of limitations for that offense.[1] The defendant moved to dismiss the charge on the ground that the prosecution was barred by the statute of limitations because, he claimed, the delay in the execution of the warrant was unreasonable. The trial court denied the motion, and the defendant appealed to the Appellate Court, which affirmed the judgment of the trial court, concluding that the delay was reasonable as a matter of law under Crawford and its progeny. State v. Swebilius, 158 Conn.App. 418, 423-28, 119 A.3d 601 (2015). We granted the defendant's petition for certification to appeal, limited to the following question: ‘‘Did the Appellate Court properly affirm the trial court's decision denying the defendant's motion to dismiss pursuant to . . . Crawford . . . ?'' (Citation omitted.) State v. Swebilius, 318 Conn. 907, 122 A.3d 635 (2015). We conclude that the Appellate Court incorrectly determined that a thirty-two day delay in the execution of an arrest warrant, where the warrant was executed after the expiration of the limitation period, is reasonable as a matter of law such that the state was under no obligation to present evidence demonstrating that the delay was not objectively unreasonable and, therefore, excusable. Accordingly, we reverse the judgment of the Appellate Court with direction to remand the case to the trial court for a hearing on whether the delay in the execution of the warrant was reasonable under the circumstances.

         The following undisputed facts and procedural history are relevant to our resolution of this appeal. On May 28, 2008, the Connecticut State Police executed a search warrant on room number 59 at the Meriden Inn, the defendant's place of residence at the time. During the search, 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.[2] The arrest warrant was issued on May 9, 2013, nineteen days before the expiration of the five year limitation period of General Statutes (Rev. to 2007) § 54-193 (b). A short time after the limitation period 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.[3]

         Following his arrest, the defendant moved to dismiss the charge, claiming that, even though the arrest warrant had been issued within the statutory limitation period, the delay in its execution was unreasonable, and, therefore, the prosecution was barred by the statute of limitations. Prior to the hearing on his motion to dismiss, the defendant entered a conditional plea of nolo contendere subject to the trial court's ruling on the motion to dismiss. Thereafter, a hearing on that motion was held before the court, S. Moore, J. At the hearing, the defendant presented uncontested evidence that he had lived openly in Connecticut and was available for arrest throughout the five year limitation period. The state adduced no evidence. Following the hearing, the trial court found that the defendant ‘‘was not elusive, was available in the area and did not evade at the time service was made.'' The court also found that the state police ‘‘did not attempt execution of the [arrest] warrant before June 10, 2013, and only executed the warrant on that date upon the [defendant's] surrendering himself at the police barracks.'' Although the state presented no evidence as to the reasons for the delay in the execution of the arrest warrant, it argued that the delay was not unreasonable because of its short duration, because the defendant suffered no prejudice as a result thereof, and because there had been ‘‘no showing'' by the defendant ‘‘of any lack of due diligence'' on the part of the police in executing the warrant.

         The trial court agreed with the state that the issuance of the arrest warrant, in this case, tolled the statute of limitations. Although it recognized that, under Crawford, ‘‘there is no per se approach as to what constitutes a reasonable time to execute a warrant, '' the court was unable to find ‘‘that a period of time as [short] as [thirty-two] days would be considered unreasonable, '' noting that delays found by other courts to be unreasonable typically involved significantly longer periods of time.[4]Thus, the court concluded that, ‘‘[a]lthough the police efforts might be characterized as [minimal] or nonexistent . . . given the very short period of time that elapsed from the signing of the warrant to the execution of service, the police actions resulted in a timely commencement of prosecution.''[5]

         The defendant appealed to the Appellate Court, claiming that the trial court improperly relied solely on the length of the delay in finding that the thirty-two day delay was reasonable. See State v. Swebilius, supra, 158 Conn.App. 419-20, 427. The Appellate Court disagreed. The court acknowledged that, under State v. Soldi, 92 Conn.App. 849, 857, 887 A.2d 436, cert. denied, 277 Conn. 913, 895 A.2d 792 (2006), once a defendant has demonstrated that he was in the state and available for arrest during the relevant timeframe, the burden generally shifts to the state to prove that any delay in the execution of an arrest warrant was not unreasonable. See State v. Swebilius, supra, 424. The court also acknowledged that, under State v. Crawford, supra, 202 Conn. 451, the ‘‘failure to execute an arrest warrant for even a short period of time might be unreasonable . . . .'' (Internal quotation marks omitted.) State v. Swebilius, supra, 428. The court determined, however, that State v. Kruelski, 41 Conn.App. 476, 487, 677 A.2d 951, cert. denied, 238 Conn. 903, 677 A.2d 1376 (1996), which held that a one day delay in executing a warrant beyond the statute of limitations was reasonable as a matter of law, was controlling in the present case. State v. Swebilius, supra, 428; see also id., 426-28 and n.8. The Appellate Court reasoned that Kruelski established that some delays may be so de minimis as to require no justification by the state, and that the thirty-two day delay in the present case fell into that category. See id., 428.

         On appeal to this court, the defendant argues that the Appellate Court's conclusion that the delay was sufficiently brief as to require no justification ignores this court's express rejection of a per se rule in State v. Crawford, supra, 202 Conn. 451, and this court's admonition therein that the failure to execute a warrant ‘‘for even a short period of time'' might be unreasonable in certain circumstances. Id. The defendant also argues that allowing the state to extend the statute of limitations without any showing of due diligence undermines the right of defendants to fair and timely notice of the charges against them, as well as the values of repose and finality embodied in such statutes. The defendant further contends that the Appellate Court's reliance on Kruelski was misplaced because, in that case, the police executed the arrest warrant on the day they received it, and, therefore, the court's conclusion that the delay was reasonable as a matter of law must be interpreted in light of those facts rather than as evidence that the court intended to create an exception to Crawford.

         The state responds that, even if delays in the execution of a warrant require justification in all cases, regardless of the brevity of the delay, Crawford places the burden on the defendant to prove that the delay was unreasonable. Thus, when the defendant fails to produce evidence demonstrating that the police failed to act with due diligence in serving a warrant, the delay must be presumed to be reasonable. Accordingly, the state maintains that cases such as State v. Soldi, supra, 92 Conn.App. 857, which shift the burden to the state to justify delays in the execution of a warrant once the defendant meets his burden of establishing his availability for arrest during the relevant time period, are antithetical to the holding in Crawford and should be overruled.

         We agree with the defendant that the Appellate Court incorrectly determined that some delays in the execution of an arrest warrant may be so brief as to be reasonable as a matter of law for the purpose of tolling the applicable statute of limitations.[6] We further conclude that the burden shifting framework that the Appellate Court applied in Soldi and other cases is fully consistent with Crawford and properly allocates burdens between the parties.

         General Statutes (Rev. to 2007) § 54-193 (b) provides in relevant part that ‘‘[n]o person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, 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. . . .'' In State v. Crawford, supra, 202 Conn. 447, in which the applicable time limitation for the misdemeanor offenses charged was one year, this court was asked to determine whether the mere issuance of an arrest warrant within the limitation period was sufficient to commence a prosecution for purposes of § 54-193, thereby tolling the limitation period. In that case, the trial court had rejected the motion of the defendant, Ronald L. Crawford, to dismiss the charges as being beyond the statute of limitations when the arrest warrant for Crawford had been issued approximately two months after the commission of the charged offenses-well within the one year limitation period-but not executed for more than two years after the offenses were committed and more than one year after the expiration of the statute of limitations. Id., 445. This court upheld the trial court's judgment. See id., 453.

         In doing so, we recognized that, as a general matter, ‘‘[w]hen an arrest warrant has been issued, and the prosecutorial 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.'' (Footnote omitted.) Id., 450. We also recognized, however, ‘‘that some limit as to when an arrest warrant must be executed after its issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions, a primary purpose of statutes of limitation[s].'' Id. Accordingly, we determined that, ‘‘in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations of § 54-193 (b), must be executed without unreasonable delay.'' (Emphasis added.) Id., 450-51. In reaching that determination, we expressly declined ‘‘[to] adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. 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., 451. Because the statute of limitations is an affirmative defense, however, and because Crawford presented no evidence suggesting that the warrant in that case was not executed with due diligence, we were unable to conclude that the delay was unreasonable, and, accordingly, we upheld the trial court's judgment. See id., 451-53.

         In light of the inadequacy of the record in Crawford, we had no occasion to consider what kind of evidence a defendant must present to support a statute of limitations defense. Subsequent Appellate Court cases, however, have considered that question and concluded that, once a defendant presents evidence of his availability for arrest during the limitation period, the burden shifts to the state to present evidence of its due diligence in executing the warrant. See, e.g., State v.Woodtke, 130 Conn.App. 734, 740, 25 A.3d 699 (2011) (‘‘once a defendant puts forth evidence to suggest that she was not elusive, was available and was readily approachable, the burden shifts ...


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