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State v. Crosby

Court of Appeals of Connecticut

June 5, 2018

STATE OF CONNECTICUT
v.
DARREN MATTHEW CROSBY

          Argued November 27, 2017

         Procedural History

         Substitute information charging the defendant with the crimes of robbery in the first degree and larceny in the third degree, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Mullarkey, J.; thereafter, the court denied the defendant's motion to suppress certain evidence; verdict of guilty; subsequently, the court denied the defendant's motions to dismiss; judgment of guilty, from which the defendant appealed to this court; thereafter, the court, Hon. Edward J. Mullarkey, judge trial referee, issued an articulation of its decision. Affirmed.

          Alec Gulash, certified legal intern, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

          Harry Weller, senior assistant state's attorney, with whom were Elizabeth S. Tanaka, assistant state's attorney, and, on the brief, Gail P. Hardy, state's attorney, for the appellee (state).

          DiPentima, C. J., and Elgo and Bear, Js.

          OPINION

          BEAR, J.

         The defendant, Darren Matthew Crosby, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4)[1] and larceny in the third degree in violation of General Statutes (Rev. to 2007) § 53a-124 (a) (2).[2] On appeal, the defendant claims that the trial court erred in denying his motions to dismiss and his motion to suppress, and improperly concluded that (1) the state and the Massachusetts Department of Correction did not violate his rights under article IV, § 2, clause 2, of the United States constitution and the Interstate Agreement on Detainers (IAD), General Statutes § 54-186 et seq.; (2) the state's delay in executing an arrest warrant against him did not violate his due process rights; (3) the witnesses' identification of him from a photographic array was not the product of an unreliable identifiable procedure; and (4) the jury charge on eyewitness identification was sufficient. We affirm the judgment of the trial court.

         The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On December 18, 2008, at approximately 1:44 p.m., a robbery took place at the Webster Bank in Enfield. The perpetrator of the robbery was described as a tall black male, clean cut, with an athletic build, and wearing a black hooded type jacket, eyeglasses, a white Red Sox ball cap with a black brim, and black gloves with a Cincinnati style ‘‘C'' on the backs. Suzanne McVey, a bank teller, acknowledged the man's presence while she assisted another customer and told him that she would be with him shortly. When called forward to the teller window, the man approached McVey, mumbled something inaudible, and handed her a note, which stated, ‘‘this [is] a robbery, give [me] all [the] fifties and hundreds, and . . . [I have] a gun.'' McVey complied with the demand and gave the man cash from her drawer, which later was determined to total $1730. After the man left the bank, McVey informed the bank manager, Kathleen Lee, that she had just been robbed. Lee had been standing behind the teller line, about a foot and one-half from McVey, during the robbery. In accordance with bank procedure, the doors of the bank were locked to prevent the perpetrator from returning, and Lee called 911.

         Detective Michael Bailey of the Enfield Police Department arrived at the bank at about 2 p.m., approximately fifteen minutes after the robbery. Lee assisted Bailey in reviewing the bank's surveillance footage. Multiple images of the perpetrator were captured by the bank's security camera. Detective David Thomas of the Enfield Police Department also assisted with the investigation of the robbery. After arriving at the bank, Thomas took a sworn statement from McVey, in which she described the perpetrator as a ‘‘[b]lack male, six feet to six feet, five inches, about thirty years old, thin to a medium build, well groomed, no facial hair . . . . Wearing a white baseball type cap possibly with a Nike logo . . . dark-rimmed regular eyeglasses, black fleece pullover and black pants.'' No written statement was taken from any other witness.

         Detective William Cooper of the Enfield Police Department, who also responded to the bank on the day of the robbery, was assigned as the case officer for the investigation. On February 3, 2009, Cooper went to the bank to present a photographic array to the witnesses to the robbery. McVey and Lee viewed the photographic array separately, and each identified the defendant as the perpetrator of the robbery. An arrest warrant for the defendant, charging him with larceny in the third degree in violation of § 53a-124 (a) (2), and robbery in the first degree in violation of § 53a-134 (a) (4), was issued on February 18, 2009. The defendant was taken into custody by the Enfield police on November 6, 2013.

         On April 21, 2014, the defendant filed a motion to dismiss and an accompanying memorandum of law, asserting, inter alia, that the state's unreasonable and unjustifiable delay in executing the arrest warrant violated his rights under the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution.[3] Also on April 21, 2014, the defendant filed a motion to suppress the witnesses' identifications of him. Evidentiary hearings on the motion to dismiss and motion to suppress took place on April 24 and 25, 2014. On April 28, 2014, the court denied the defendant's motion to suppress the witnesses' identifications. The court did not render a decision on the defendant's motion to dismiss prior to trial.

         Following a jury trial, on May 5, 2014, the defendant was found guilty of robbery in the first degree in violation of§ 53a-134 (a) (4) and larceny in the third degree in violation of § 53a-124 (a) (2). On June 18, 2014, another hearing was held on the defendant's motion to dismiss. On July 1, 2014, the defendant filed a supplemental memorandum of law in support of his motion to dismiss, and he also filed a second motion to dismiss and supporting memorandum of law asserting a violation of his rights under the IAD. On July 9, 2014, the state filed an opposition to the defendant's second motion to dismiss. On August 13, 2014, the court denied the defendant's motions to dismiss. On August 15, 2014, the court sentenced the defendant to a total effective term of five years imprisonment, with five years of special parole, to run consecutively with sentences pursuant to which he was incarcerated in Massachusetts. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         I

         The defendant first claims that the court erred in denying his motions to dismiss and improperly concluded that (1) the state and the Massachusetts Department of Correction did not violate his rights under article IV, § 2, clause 2, of the United States constitution and the IAD, § 54-186; and (2) the state's delay in executing an arrest warrant against him did not violate his due process rights. We are not persuaded.

         The following additional facts, as set forth in the court's memorandum of decision and otherwise contained in the record, and procedural history are relevant to these claims. On February 18, 2009, a warrant was issued for the defendant's arrest in connection with the December 18, 2008 robbery. At that time, the defendant remained incarcerated in Massachusetts for multiple bank robberies committed in that state.[4] On July 9, 2010, Enfield Police Detective Willie Pedemonti and James Howard, an inspector with the Hartford state's attorney's office, discussed, through facsimile transmissions, authorization to extradite the defendant from Massachusetts to Connecticut, and such extradition was authorized. Extradition, however, was not pursued at that time.

         On September 1, 2010, the Enfield Police Department received a telephone request from ‘‘Rafael'' of the MCI-Cedar Junction correctional facility at South Walpole in Massachusetts, for the defendant's warrant. The telephone call was followed by a facsimile transmission from the MCI-Cedar Junction records department, requesting a copy of the warrant for the defendant's arrest ‘‘[i]n order to be able to initiate the IAD process.'' In response to the request, Stephanie ‘‘Dee'' Beninato, the records clerk for the Enfield Police Department, faxed a copy of the warrant that same day. It is undisputed that Massachusetts did not treat the faxed warrant as a detainer, and therefore, it did not provide the defendant with IAD forms at that time.

         On or about October 13, 2011, in response to an inquiry by the defendant, the Massachusetts Department of Correction advised the defendant that an IAD detainer had not been lodged, and that he should submit a written request to the state to lodge a detainer. On or about December 19, 2011, the defendant sent a ‘‘Notice of Whereabouts & Demand for Speedy Trial'' to the geographical area number thirteen court in Enfield. Maria Reed-Cook, deputy clerk for that court, advised the defendant in a letter dated December 19, 2011, instead to contact the state's attorney's office in Hartford. On or about April 30, 2012, the defendant sent a ‘‘Notice of Whereabouts and Demand for a Speedy Trial'' and accompanying letter to Howard at the Hartford state's attorney's office, advising him of his location of incarceration and his efforts to have the arrest warrant served, and asserting his right to a speedy trial.[5]On May 2, 2012, Howard responded to the defendant and notified him that, as an incarcerated prisoner in another state, his speedy trial request did not apply because he was incarcerated in another state, but that he should contact his prison counselor to assist him in making the necessary arrangements to be brought to Connecticut under the provisions of the IAD.

         On or about January 28, 2013, the Massachusetts Department of Correction Souza-Baranowski Correctional Center records manager, Jamie Lewis, notified the defendant in a written letter that ‘‘[o]ur records . . . indicate that you have been previously advised that in order to begin the IAD process a detainer must be lodged by the requesting state. A detainer has not been lodged. You have previously been advised that you must write to [Connecticut] and request that a detainer be lodged. Once a detainer is received the IAD process may be initiated.'' On February 1, 2013, in response to another inquiry from the defendant, Lewis wrote to the defendant to explain that ‘‘speedy trial requests are for same state open legal issues. For out of state open detainers IADs are filed. As previously indicated to you, there is no detainer filed therefore IADs do not currently apply . . . .'' The defendant then made a written inquiry, dated February 3, 2013, to the geographical area number thirteen court in Enfield. On February 6, 2013, Reed-Cook responded to the defendant, informing him again that ‘‘[i]f the warrant to which you refer has not been served on you by an arresting agency, the clerk's office is not the appropriate office to contact. [The clerk's office] only handles matters after an arrest has been made. You must contact the [Hartford state's attorney office], which handles the lodging of detainers.''

         On May 22, 2013, Pedemonti sent a letter to Kathy Guenther at the Souza-Baranowski Correctional Center, which stated: ‘‘The Enfield Police Department currently holds an active arrest warrant for [the defendant] . . . for Robbery 1st and Larceny 3rd. Both are felonies in the [s]tate of Connecticut. Extradition has been authorized by our State's Attorney's Office and the Enfield Police Department will extradite.'' After receiving the letter, Massachusetts asked the Enfield Police Department to clarify whether Connecticut was lodging a detainer for IAD purposes. On July 23, 2013, the defendant was notified that a detainer had been lodged against him, and he was provided with the necessary IAD forms, which he signed. On August 6, 2013, the Hartford state's attorney's office received the IAD forms. On November 6, 2013, Enfield police arrested the defendant, and he was transported from Massachusetts to Connecticut.

         On April 21, 2014, the defendant filed a motion to dismiss the pending Connecticut charges. During the April 25, 2014 hearing on the motion to dismiss, Carl J. Sferrazza, the police chief for the Enfield Police Department, testified about the general procedure for executing a detainer-that when a warrant is secured for the arrest of a person located out of state, the process is ‘‘normally [to] send a copy of that warrant to the home state or the jail where he's being held so they know that he's wanted by us; that would be our normal procedure.'' Sferrazza testified that he did not believe there was any written procedure, but that ‘‘our practice has been, we e-mail or we fax the holding facility our warrant so they're on record that the person is wanted by us.'' Defense counsel then asked whether Sferrazza was aware that ‘‘the process can be accelerated either through extradition or what's called the interstate agreement on [detainers] act, '' to which Sferrazza explained that ‘‘we work hand in hand with the state's attorney's office to get these things done. I, personally, in my career have never been involved in that portion of it, but we work through the state's attorney's office to get these things done.''

         At the April 25, 2014 hearing, Beninato, the records clerk for the Enfield Police Department, testified that when she faxed the arrest warrant to the Massachusetts correctional facility, she was merely responding to the request from Rafael, that she was not responsible for lodging detainers, and that lodging a detainer is not something she would be asked to do as part of her duties as records clerk. She was asked whether she attached anything to the warrant to show that the state was ‘‘making a demand for the defendant's return to . . . Connecticut, '' to which she responded, ‘‘no.''

         ‘‘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 dismiss 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.'' (Citation omitted; internal quotation marks omitted.) State v. Samuel M., 323 Conn. 785, 794-95, 151 A.3d 815 (2016).

         A

         We first address the defendant's claim that, because the state allegedly lodged a detainer against him on September 1, 2010, but he was not extradited from Massachusetts until 2013, he was entitled to dismissal of the charges against him. Specifically, the defendant contends that his rights were violated when the Massachusetts Department of Correction failed to provide him with the necessary IAD forms after Connecticut lodged a detainer and misinformed him of his rights, and that Connecticut is vicariously liable for Massachusetts' actions. We are not persuaded.

         We begin our analysis by setting forth our standard of review and the relevant legal principles governing the defendant's claim. ‘‘The IAD is a congressionally sanctioned interstate compact the interpretation of which presents a question of federal law. . . . Our standard of review of the [defendant's] claim is plenary. We must decide whether the court's conclusion is legally and logically correct and find[s] support in the facts that appear in the record.'' (Citations omitted; internal quotation marks omitted.) State v. Taylor, 63 Conn.App. 386, 411-12, 776 A.2d 1154, cert. denied, 257 Conn. 907, 777 A.2d 687, cert. denied, 534 U.S. 978, 122 S.Ct. 406, 151 L.Ed.2d 308 (2001).

         ‘‘The purpose of the IAD is to establish a cooperative procedure for disposition of charges against a prisoner in one state who is wanted to respond to untried criminal charges in another state. . . . The IAD is activated when the state seeking the prisoner (the receiving state) files written notice that he is wanted to answer charges in that state. . . . This notice, referred to as a detainer, is simply a notification filed with the institution in which the prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.'' (Citations omitted; internal quotation marks omitted.) Id., 412.

         ‘‘After lodging the detainer an appropriate officer of the demanding state may make a written request for temporary custody of the prisoner for the purpose of trying these indictments, informations, or complaints that form the basis of the detainer. . . . Unless the governor of the asylum state disapproves the request for temporary custody within thirty days of its filing, the demanding state shall be entitled to have a prisoner against whom [it] has lodged a detainer. . . . Once a detainer has been filed against a prisoner, custodial officials must promptly notify the prisoner of the source and contents of the detainer and of the prisoner's right to request a final disposition of the foreign charge; General Statutes § 54-186, art. III (c); the prisoner, upon notifying prosecuting officials in the demanding state of his or her request for a final disposition of the charge, must be brought to trial within 180 days of the request; General Statutes § 54-186, art. III (a).'' (Citations omitted; internal quotation marks omitted.) Remick v. Lopes, 203 Conn. 494, 502-503, 525 A.2d 502 (1987).

         ‘‘The provisions of the [IAD] are activated only when the receiving or charging state lodges with the sending or asylum state a detainer based on a pending indictment, information or complaint.'' (Internal quotation marks omitted.) Id., 501. Accordingly, the state was not required to comply with the provisions of the IAD until it lodged a detainer against the defendant. See United States v. Mauro, 436 U.S. 340, 361, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978) (‘‘[b]ecause . . . the [g]overnment never filed a detainer against [the defendants], the [IAD] never became applicable and the United States was never bound by its provisions''). Therefore, we first must determine when the state lodged a detainer against the defendant before we address his claim that his rights under the IAD were violated.

         The defendant argues that the court erred in determining that a detainer was lodged against him in May, 2013. He contends that a detainer instead was lodged against him when the Enfield Police Department faxed a copy of his arrest warrant to Massachusetts on September 1, 2010. We disagree.

         A detainer is ‘‘a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.'' (Internal quotation marks omitted.) State v. Milton, 26 Conn.App. 698, 708, 603 A.2d 750, appeal dismissed, 224 Conn. 163, 617 A.2d 460 (1992). ‘‘A detainer . . . need not take any particular form; its purpose is to provide written notice to prison authorities . . . that charges are pending against the prisoner. . . . Thus, a letter from a police department to prison officials . . . a letter from the clerk of court to prison officials . . . and a letter from a prosecuting attorney to prison officials . . . have all been held to fall within the IAD definition of a detainer.'' (Citations omitted; internal quotation marks omitted.) Id., 708-709.

         In the present case, the court found that the state did not lodge a detainer on September 1, 2010, because ‘‘it cannot be ascertained whether [state] officials requested that Massachusetts hold the defendant or notify [the state] when the defendant's release was imminent'' through the mere sending of the faxed warrant. Importantly, a detainer is initiated by the receiving state (Connecticut), not by the sending state (Massachusetts). See State v. Taylor, supra, 63 Conn.App. 412. Thus, the fact that the Enfield records clerk faxed a copy of the arrest warrant in response to a request for the warrant from Massachusetts does not establish the state's intent to lodge a detainer. As the defendant concedes in his principal brief, ‘‘the fax sent by the Enfield Police Department did not include language expressly stating that the warrant was being sent for the purpose of lodging a detainer . . . .'' In contrast, the May 22, 2013 letter, signed by Pedemonti of the Enfield Police Department, did indicate the state's intent to lodge a detainer. It provided, in relevant part: ‘‘The Enfield Police Department currently holds an active arrest warrant for [the defendant] . . . for Robbery 1st and Larceny 3rd. Both are felonies in the [s]tate of Connecticut. Extradition has been authorized by our State's Attorney's Office and the Enfield Police Department will extradite.'' (Emphasis added.)

         The trial court also found it relevant that, although the warrant was faxed in response to a request from Massachusetts to do so, Massachusetts did not consider the faxed warrant to be a detainer. The parties stipulated to the trial court that ‘‘the Massachusetts [Department of Correction] will consider a written document as a detainer triggering the IAD process if the document references a pending criminal charge and requests either (a) that the criminal justice agency be notified when the inmate's sentence is completed or (b) that the Massachusetts [Department of Correction] hold the subject after his sentence is completed so that he can be taken into custody by the receiving state.'' Although the May, 2013 letter satisfied these criteria, the September, 2010 fax did not.

         Furthermore, the defendant was informed multiple times prior to May, 2013, by Massachusetts correctional employees that a detainer had not been lodged against him. It was not until July 23, 2013, that he was notified that a detainer had been lodged against him by the state. On the basis of the foregoing, we conclude that the court did not err in determining that the detainer was lodged against the defendant in May, 2013.

         We next consider whether the defendant's rights under the IAD were violated. The defendant claims that ‘‘Massachusetts, in [its] capacity as [agent] for [the state], violated the IAD through inaction [and that the state], as principal, is liable for this violation.'' The defendant contends that Massachusetts' failure to recognize the state's detainer halted the filing procedure, and delayed the triggering of the defendant's rights and duties under the IAD. We are not persuaded. As set forth previously in this opinion, the state lodged a detainer against the defendant in May, 2013. Thus, only two months elapsed between the detainer being lodged and the defendant being informed in July, 2013, that the state had lodged a detainer against him. Even if a detainer effectively had been lodged in September, 2010, however, the defendant's claim still would fail because he has failed to demonstrate that any delay was unjustifiable or that he was prejudiced by any delay.

         ‘‘Article III of the IAD governs inmate requests for a prompt disposition of outstanding detainers. The centerpiece of Article III is subsection (a), which states that a prisoner shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint . . . . Failure to comply with Article III (a) mandates dismissal with prejudice of the underlying charges.'' (Citation omitted; internal quotation marks omitted.) State v. Herring, 210 Conn. 78, 85-86, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989). ‘‘The remaining provisions of Article III address the custodial state's duty ‘promptly' to inform a prisoner of outstanding detainers; General Statutes § 54-186, Article III (c); and ‘promptly' to forward a request for prompt disposition to the demanding state. General Statutes § 54-186, Article III (b) and (d).'' (Footnote omitted.) State v. Herring, supra, 86.

         ‘‘Although custodial state delays do not automatically require the dismissal of criminal charges in the demanding state, we would be remiss in our obligation to effectuate the IAD's purposes and principles if we were simply to ignore such a violation. Indeed . . . under the IAD, officials of the custodial state act as the agents of the demanding state. . . . When, in somewhat similar circumstances, we sought to enforce a criminal defendant's right to have his appeal defended by the state with due diligence . . . we found a useful analogy in the rules that have been developed to protect a defendant's constitutional right to a speedy trial. So too [a] defendant's right to prompt IAD notification can appropriately be protected by invoking the balancing principles of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which determine when a deprivation of speedy trial rights requires dismissal of criminal charges against a defendant. . . . The four factors that form the matrix of a Barker v. Wingo [supra, 530] analysis are: the length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'' (Citations omitted.) State v. Herring, supra, 210 Conn. 89-90. ‘‘We recognize that these factors have no talismanic qualities but rather must be considered together with such other circumstances as may be relevant. . . . The triggering mechanism for our consideration of the Barker factors is the length of the delay that the defendant has experienced. . . . As the tolerable length of delay may vary greatly between cases, our inquiry into the length of the delay is necessarily dependent upon the peculiar circumstances of the case.'' (Citations omitted; internal quotation marks omitted.) State v. Roman, 320 Conn. 400, 418-19, 133 A.3d 441 (2016).

         On appeal, the defendant fails to analyze his claim pursuant to the Barker factors, and instead argues that ‘‘prejudice is presumed for failure to comply with IAD regulations.'' As the state asserts, however, the defendant's argument conflicts with established case law, which explicitly states that ‘‘custodial state delays do not automatically require the dismissal of criminal charges in the demanding state . . . .'' State v. Herring, supra, 210 Conn. 89. We agree with the state and, thus, reject the defendant's argument that prejudice is presumed by ‘‘a delay of this magnitude.'' Rather, a claim of prejudice resulting from the delay is properly analyzed pursuant to the four Barker factors.

         Utilizing the Barker factors, the trial court in the present case determined that, as to the first factor, the length of the delay between the defendant's sentencing in Massachusetts on July 23, 2010, and his receipt of the IAD forms on August, 26, 2013, was ‘‘sufficient to trigger an application of the remaining three factors.''[6]As to the second factor, the court concluded that ‘‘much of the delay seems to be attributable to a misunderstanding, or miscommunication, on the part of officials in both states concerning whether an IAD detainer had been lodged and the proper way in which to initiate the lodging of a detainer'' but that ‘‘this factor cuts slightly in favor of the defendant.'' As to the third factor, the court noted that the defendant made at least one attempt to assert his right to a speedy trial by sending a letter to Howard, but there were also periods of inactivity in asserting that right. Finally, as to the fourth factor, the court concluded that the defendant failed to establish prejudice.[7] The defendant has failed to demonstrate on appeal that any delay was unjustifiable or that he was prejudiced by any delay. Accordingly, we conclude that the court properly denied the defendant's motion to dismiss.

         B

         We next address the defendant's claim that the court erroneously denied his motion to dismiss because his due process rights were violated by the state's ‘‘unreasonable and unjustifiable delay'' in executing the arrest warrant against him, extraditing him four years after the warrant was issued. The defendant contends that the unjustifiable delay had an impact on the memory of the eyewitnesses, which resulted in actual, substantial prejudice to him. We are not persuaded.

         ‘‘The role of due process protections with respect to pre-accusation delay has been characterized as a limited one. . . . [T]he Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment.'' (Internal quotation marks omitted.) Slater v. Commissioner of Correction, 158 Conn.App. 522, 536, 119 A.3d 1221, cert. denied, 319 Conn. 932, 125 A.3d 206 (2015). ‘‘This court need only determine whether the action complained of . . . violates those fundamental conceptions of justice which lie at the base of our civil and political institutions . . . and which define the community's sense of fair play and decency . . . . The due process clause has not replaced the applicable statute of limitations . . . [as] . . . the primary guarantee against bringing overly stale criminal charges.'' (Citations omitted; internal quotation marks omitted.) State v. John, 210 Conn. 652, 685, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989); see also Slater v. Commissioner of Correction, supra, 536. ‘‘In 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. . . . [P]roof of prejudice is generally a necessary but ...


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