State of Connecticut v. Antolin Henriquez (2011)

Caption Date:

MEMORANDUM OF DECISION RE MOTION TO DISMISS (No. 17)

I. INTRODUCTION.

The motion to dismiss now before the court has been filed in two different criminal cases, involving the same defendant, consolidated for purposes of this hearing.

In No. CR09-96308, the defendant, Antolin Henriquez (misspelled “Henroquez” in the Information), is charged with three counts of sexual assault in the fourth degree, in violation of Conn. Gen.Stat. § 53a-73a, and three counts of risk of injury to, or impairing morals of, children, in violation of Conn. Gen.Stat. § 53-21.   The crimes allegedly occurred in New Haven in December 1994.   An arrest warrant was signed by a Judge of the Superior Court on November 24, 1995.   Henriquez was arrested on the warrant on August 26, 2009.

In No. CR09-96309, Henriquez is charged with one count of manslaughter in the second degree, in violation of Conn. Gen.Stat. § 53a-56.   The crime allegedly occurred in New Haven on July 22, 1995.   An arrest warrant was signed by a Judge of the Superior Court on September 13, 1995.   Henriquez was arrested on the warrant on August 26, 2009.

The motion to dismiss now before the court was filed on December 23, 2010.   The motion invokes both the statute of limitations;  Conn. Gen.Stat. § 54-193;  and the right to speedy trial provided by the Sixth Amendment to the United States Constitution and Art. First, § 8 of the Connecticut Constitution.

An evidentiary hearing was held on January 4 and 19, 2011.   As part of the evidence, the parties filed a Stipulation, dated December 20, 2010.   The motion was argued on February 3, 2011.

II. FINDINGS OF FACT.

The arrest warrant application in the manslaughter file discloses that the victim, Mariano Serrano, was discovered by the New Haven police in an injured condition on July 22, 1995.   Serrano died in the hospital three days later, on July 25, 1995.   The Chief Medical Examiner classified the cause of death as “craniocerebral blunt force trauma” and “acute ethanol intoxication.”   A witness reported to the police that he had seen Serrano in a fistfight in a parking lot with a man named “Blackie.”  “Blackie” hit Serrano with his fist, and Serrano fell backwards, hitting his head on the pavement.   The witness described the sound of the fall as that of a “coconut breaking.”

Subsequent police work identified Henriquez as “Blackie.”   The witness selected a photograph of Henriquez from a photo array.   Following his arrest, Henriquez admitted to the police that he was the man involved in the altercation with Serrano.

Henriquez learned of Serrano's death the day after it occurred.   On the next day, he left the State to live in Camden, New Jersey.   He lived in Camden for the next fourteen years under an assumed name, with false identification.   He never returned to New Haven.

The New Haven police acted with due diligence.   They started looking for “Blackie” immediately, and identified the defendant as the suspect in less than two months.   A wanted poster was distributed to local police stations immediately after the arrest warrant was signed.   The warrant was filed with the National Crime Information Center (NCIC) and made available on a nationwide basis.

The arrest warrant application contained in the sexual assault file discloses that on October 4, 1995, three young females (two age seven and one age eight) complained to the New Haven Police that they had been inappropriately touched in their genital area by an adult male living in their home.   The parents of the girls identified the man as “Blackie,” and told the police that he had been alone with the children in December 1994.   On October 12, 1995, the mother of the children selected a photograph of Henriquez from a photo array.   As mentioned, the arrest warrant application in the sexual assault case was signed on November 24, 1995.

Henriquez was arrested on August 26, 2009 in Puerto Rico, en route to the Dominican Republic.   He told a police officer that he had left Connecticut in fear of retaliation by Serrano's family.

III DISCUSSION.

A. The Statute of Limitations.

Conn. Gen.Stat. § 54-193(b) (1995) provides, in relevant part, that:

No person may be prosecuted for any offense ․ 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 within one year after the offense has been committed.

Manslaughter in the second degree and risk of injury to children are felonies punishable by imprisonment in excess of one year.   Sexual assault in the fourth degree is a misdemeanor.   Each of the arrest warrants in this case was signed by a Judge of the Superior Court within one year after the offense in question was committed.

It is well established that, as an initial matter, the word “prosecuted” in § 54-193(b) refers to the issuance of an arrest warrant and the prompt delivery of that warrant to a proper officer for service.  State v. Crawford, 202 Conn. 443, 450, 521 A.2d 1034 (1987).  “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 ․ An accused should not be rewarded, absent evidence of due diligence on the part of the officer charged with executing the warrant, for managing to avoid prosecution to a point in time beyond the period of limitation.”  Id. The arrest warrants in these cases were issued within the time limitation of § 54-193(b), and the statute of limitations was-at least as an initial matter-tolled.

There is, however, a second step in the Crawford analysis.  Crawford explains 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.”  202 Conn., at 450-51.   Because there was a fourteen-year delay in serving the warrants here, the “unreasonable delay” exception is the brass ring that each party here attempts to grasp.

Crawford explains the concept of “unreasonable delay” in the following terms:

We do not adopt a per se approach as to what period of time to execute a 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., at 451.

As described above, the evidence establishes that Henriquez left the State within days of the homicide in question and relocated to Camden, New Jersey, where he lived for fourteen years under an assumed name with false identification, never returning to New Haven.   The court finds, after a full consideration of all the evidence, that these circumstances-attributable only to Henriquez-made him “difficult to apprehend.”   Under these circumstances, the fourteen-year delay in serving the arrest warrants was not unreasonable.   The applicable statute of limitations, § 54-193(b), was consequently tolled from the issuance of the arrest warrants until the time of Henriquez's arrest.

The fugitive from justice provision of the statute of limitations, Conn. Gen.Stat. § 54-193(c) (1995), plays no role in this analysis.  Sec. 54-193(c) provides, in relevant part, that, “If the person against whom an ․ information ․ 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.  Sec. 54-193(c) serves to extend the period of time-initially established by § 54-193(b)-during which the “information” may be “brought” in certain cases.   As described above, however, both informations here were brought within one year after the offense in question was committed.   For reasons already explained, § 54-193(b) has been satisfied fully.   Under these circumstances, there is no need to extend the time within which the informations could be brought.   There is consequently no occasion to discuss whether Henriquez “fled” the jurisdiction within the meaning of § 54-193(c).  Subsection (c) is not implicated here.

For the reasons discussed above, the statute of limitations, Conn. Gen.Stat. § 54-193(b) (1995), has not run.

B. Speedy Trial.

The Sixth Amendment to the United States Constitution and Art. First, § 8 of the Connecticut Constitution guarantee the right to a “speedy trial.”   The “literal sweep” of these provisions;  Doggett v. United States, 505 U.S. 647, 651 (1992);  has long been qualified by the familiar four-factor test of Barker v. Wingo, 407 U.S. 514 (1972).  Barker identified the four factors to be judicially considered as “[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.”   407 U.S., at 530.   These factors will be considered in turn.

The first Barker factor is the length of delay.  Doggett explains that this “is actually a double enquiry.”  505 U.S., at 651.   The first enquiry concerns “the interval between accusation and trial.”   The accusations in this case were made in 1995.   The trial has not yet occurred.   Approximately fifteen years have now passed since the accusations, and the litigational clock continues to run.   The second enquiry is “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.”  Id., at 652.   A period of one year is ordinarily sufficient to trigger this portion of the Barker enquiry.  Id., at 652 n.1.

For reasons set forth above, the reasons for that portion of the delay occurring between accusation and arrest are entirely attributable to the actions of the defendant.   The defendant has not complained of any delay occurring between the time of his arrest and the argument of the motion now before the court.

The defendant first asserted his right to speedy trial as one of several grounds in an omnibus motion to dismiss filed on September 9, 2009.   As mentioned, his arrest occurred on August 26, 2009.   Tellingly, however, the defendant (who at all times since his initial arraignment has been represented by counsel) has never moved for a speedy trial.

The evidence submitted in the hearing fails to disclose any affirmative prejudice to the defendant resulting from the delay.   The State has located its witnesses.   While it appears that the defendant has failed to locate additional witnesses, possibly because of the delay, there is no indication in the record that there is any witness-located or unlocated-whose testimony would have been exculpatory.

“[T]hese factors have no talismanic qualities;  courts must still engage in a difficult and sensitive balancing process.”  Barker v. Wingo, supra, 407 U.S., at 533.   Considering all of the factors enumerated above, the court cannot conclude that Henriquez's right to speedy trial has been violated.   While the period since the accusation-fifteen years and counting-has been notably long, this delay is almost entirely due to Henriquez's own evasive actions.   Since his arrest, he has never affirmatively moved for a speedy trial.   The record fails to disclose any prejudice to him resulting from the delay in question.

Under these circumstances, Henriquez's right to speedy trial has not been violated

IV. CONCLUSION.

The motions to dismiss are denied.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.