John Slater v. Warden (2013)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner was the defendant in a matter pending in the Waterbury Judicial District, where he was charged with sexual assault in the first degree, in violation of General Statutes § 53a–70(a)(1),¹ and kidnapping in the first degree, in violation of General Statutes § 53a–92(a)(2)(B).²  At all times relevant to the claims in this petition, he was represented by Attorney Frank Mandanici, a full-time attorney with the Division of Public Defender Services.   The facts that could reasonably have been found by the jury are as follows:

In Waterbury on the evening of May 6, 1997, the defendant forced the victim into his motor vehicle and, with a knife in hand, forced her to engage in sexual relations.   After ejaculating in her vagina, the defendant let the victim go.   Moments later, Barry Kilcran and Gary Jones, who were standing in front of Kilcran's home at 129 Warner Street, heard the screams of a woman.   As Jones testified, “a girl was coming down the street, she was crying, screaming, saying somebody tried to rape me.”   The victim described her attacker only as ‘a black male with a big knife.’   The men attempted to calm the victim, brought her inside Kilcran's home and called the police.   Jones testified that the victim ‘wasn't normal ․ she was crying.   She looked hysterical, disoriented.’

Shortly thereafter, officers from the Waterbury police department and an ambulance arrived at 129 Warner Street.   The victim was transported to St. Mary's Hospital and admitted to the emergency room.   Catherine Judd, a registered nurse, first encountered the victim, whom she described as crying and upset.   Judd noted that the victim “was trying to hide in a corner” of the emergency room.   The victim told Judd that she had been raped.   Mickey Wise, a physician, also treated the victim that evening and administered a rape kit, which is used to gather evidence from the victim of a sexual assault.   Among the evidence gathered that evening were vaginal swabs.   Wise testified that the victim informed him that an ‘unknown person forced her into his car and ․ forced her to perform oral sex on him, then vaginal intercourse.   Ejaculated in her vagina ․ He had a large knife with which he poked her on her right hand.’

The rape kit was forwarded to the Waterbury police department, which unsuccessfully investigated the rape complaint, and the case ultimately was closed.   The case was opened four years later, at which time the police obtained a blood sample from the defendant.   The state police forensic laboratory analyzed the sample and compared the DNA profile contained therein with that extracted from the victim's vaginal swab.   They matched.

The defendant was arrested and charged with sexual assault in the first degree and kidnapping in the first degree.   Prior to trial, the victim died from causes unrelated to the May 6, 1997 sexual assault.

State v. Slater, 98 Conn.App. 288, 290–92, 908 A.2d 1097, 1099–100 (2006) aff'd, 285 Conn. 162, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S.Ct. 2885, 171 L.Ed.2d 822 (2008).   On December 16, 2004, a jury found the petitioner guilty of both charges.   On February 10, 2005, the trial court, Holden, J., sentenced the petitioner to serve fifteen years followed by five years of special parole on the sexual assault charge, and fifteen years to serve concurrently on the kidnapping charge, for a total effective sentence of fifteen years to serve followed by five years of special parole.   The petitioner appealed his convictions, which were affirmed.  Id.

The petitioner commenced the present action by filing a petition for writ of habeas corpus on November 27, 2009.   Following the appointment of counsel, a nine-count amended petition was filed on February 15, 2012.   The respondent filed a return on March 19, 2012 generally denying the claims in the petition and also raising the special defense of procedural default to counts two through six, and nine.   The petitioner filed a reply to the return on January 9, 2013, simply denying the special defenses, but without more.³  The matter was tried before the court on February 21, 2013.   For reasons more fully set forth in a transcript dated the same date, the court issued a partial oral judgment in favor of the respondent following the close of evidence as to all claims, with the exception of count one and subsection “h” of count seven.

II. Law and Discussion

A. Count One—The Salamon Claim

The petitioner claims that his right to due process was violated, because he may have been convicted of kidnapping for conduct that did not violate the kidnapping statute as a result of an improper jury instruction.   The petitioner relies on the holding in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008).   Prior to the Salamon case, the established rule in Connecticut was that a defendant could be convicted of kidnapping committed in conjunction with another crime, even if the movement or restraint of the victim was only incidental to that other crime.   E.g., State v. Ccheteuti, 173 Conn. 165, 170, 377 A.2d. 263 (1977).   In Salamon, however, our Supreme Court narrowed and modified the definition of what the State must prove to convict a person of kidnapping when committed in conjunction with another crime, stating “to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.”  Id., 542.   Habeas courts reviewing Salamon claims on collateral attack may be “able to dispose summarily of many cases where it is sufficiently clear from the evidence presented at trial that the petitioner was guilty of kidnapping, as properly defined, that any error arising from a failure to instruct the jury in accordance with Salamon was harmless.”  Luurtsema v. Commissioner of Correction, 299 Conn. 740, 769–70, 12 A.3d 817 (2011) (citing State v. Hampton, 293 Conn. 435, 463–64, 978 A.2d 1089 (2009)).

“It is well settled that an instructional impropriety that is constitutional in nature is harmful beyond a reasonable doubt, and, thus a reversible impropriety, when it is shown that it is reasonably possible ․ that the jury [was] misled ․ In other words, the test for determining whether a constitutional [impropriety] is harmless ․ is whether it appears beyond a reasonable doubt that the [impropriety] complained of did not contribute to the verdict obtained.”  (Alterations in original, citations omitted, internal quotation marks omitted.)  State v. Hampton, 293 Conn. 435, 463–64, 978 A.2d 1089 (2009).   In other words, “[t]he test for determining whether a trial court's constitutionally defective jury charge was harmless ․ is not whether a jury likely would return a guilty verdict if properly instructed;  rather, the test is whether there is a reasonable possibility that a properly instructed jury would reach a different result.”  State v. Flores, 301 Conn. 77, 87, 17 A.3d 1025 (2011).

After reviewing the entirety of the evidence and transcripts from the criminal trial in the present case, it is the conclusion of this court that the petitioner is entitled to relief on his Salamon claim.  Id. First, the instruction provided to the jury on the kidnapping charge was improper, because it did not include any instruction that they must find that the victim was restrained or moved in a manner that had significance independent of the sexual assault.  State v. Salamon, supra, 287 Conn. 542.   The court further finds that record fails to establish that it is “sufficiently clear from the evidence presented at trial that the petitioner was guilty of kidnapping, as properly defined”;  Luurtsema v. Commissioner of Correction, supra, 299 Conn 769–70;  and there is a reasonable possibility that a properly instructed jury would have reached a different result.  State v. Flores, supra, 301 Conn. 87.

From the evidence submitted during the trial, the jury in the present case could have reasonably determined that the victim was forced into the petitioner's vehicle, and that inside the vehicle was where the sexual assault occurred.⁴  There is no evidence in the trial record, however, from which a reasonable juror could have determined the location where the initial encounter between the petitioner and victim occurred, the location where sexual assault occurred, or the distance, if any, between the two locations.   There was also no evidence in the trial record from which a juror could have determined with any reasonable certainty the totality of the time the petitioner held the victim, the amount of time, if any, that elapsed between the vaginal and oral sexual assaults she suffered.   Additionally, other than being forced into the defendant's vehicle, which this court finds incidental and necessary to the commission of the sexual assault;  Salamon, supra, 287 Conn. 542;  there was no evidence produced during the trial from which a reasonable juror could have determined whether there was any movement or restraint of the victim before or after the sexual assault.   In short, there is nothing in the record to allow the jury to reasonably determine whether this sexual assault lasted ten minutes or ten hours, or whether the victim's encounter with the petitioner occurred at a single location, or over multiple locations.   The most telling sign of the lack of evidence in the trial record regarding the kidnapping charge in this case, however, is that neither the State's Attorney nor defense counsel mentioned the word kidnapping, or made any argument that could be said to have even indirectly addressed the elements of the charge, during their closing arguments to the jury.⁵  Based on the above, “there is a reasonable possibility that a properly instructed jury would [have] reach[ed] a different result.”  State v. Flores, supra, 301 Conn. 87.   As such, the petitioner is entitled to habeas relief.  Luurtsema v. Commissioner of Correction, supra, 299 Conn. 760.

B. Count 7h—Statute of Limitations Claim

The petitioner's remaining claim is that Attorney Mandanici was ineffective for failing to raise the statute of limitations as a special defense before the jury during trial.   By way of additional background, the sexual assault of the victim occurred on May 6, 1997, an arrest warrant for the petitioner was first issued on October 23, 2003, a period of six years and five months after the crime occurred, and the petitioner was arrested on that warrant on October 27, 2003.   At the time the crime occurred, the applicable statute of limitations for a Class B Felony, which applied to the sexual assault charge, was five years pursuant to General Statutes § 54–193 (1997).   On May 16, 2000, however, General Statutes § 54–193b ⁶ became effective, which removed any statute of limitations on the prosecution of a sexual assault offense which was reported to police within five years of its occurrence and where the identity of the perpetrator could be established by DNA. There was no statute of limitation as to a Class A Felony, which applied to the kidnapping charge.

Attorney Mandanici filed a pretrial motion to dismiss both charges pending against the petitioner, asserting that the applicable statute of limitations as to both charges should be the five years provided for in C.G.S. § 54–193,⁷ which had expired prior to the issuance of the arrest warrant, and that the application of General Statutes § 54–193b as the statute of limitations to the sexual assault charge violated the ex post facto clause.   Attorney Mandanici also asserted a claim of pre-arrest delay.   The trial court held a full evidentiary hearing on the motion, including sworn testimony from various witnesses, before ultimately denying the motion by oral decision on December 4, 2004.   The petitioner's claim in the present action is that Attorney Mandanici was ineffective for failing to re-assert the claims he made in the pretrial motion to dismiss as affirmative defenses before the jury, thereby denying the petitioner's right to have the jury decide an available defense, and also effectively waiving any right the petitioner may have had to raise issues relating to those claims on appeal.

“[The United States Supreme Court] has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.”  Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution to which they are entitled.”   Id. 685.  “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Id. 686.

“A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed to a defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.   Unless the defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.”  Id. 687.  “[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.”  Id. 688.   “Judicial scrutiny of counsel's performance must be highly deferential.'   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”  Id. 689.  “Thus, a court ․ must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.  [The defendant] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.   The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.   In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.   At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Id. 690.

Under the second prong of the test, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”  Id. 691.   “[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.”  Id. 693.  “Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.”  Id. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”  Id. “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id. 694.  “An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.”  Id. 695.   The court “must consider the totality of the evidence before the judge or jury.”  Id. “In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner's failure to prove either is fatal to a habeas petition.”  Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

“Statutes of limitations are generally considered an affirmative defense which must be proved by the defendant by a preponderance of the evidence ․ An affirmative defense is presented in the orderly course of a criminal trial after the prosecution has presented its case-in-chief.  Practice Book § 41–8(3), provides, however, that a defendant may also raise the statute of limitations defense in a pretrial motion to dismiss.”  (Citations omitted;  internal quotation marks omitted.)  State v. Ward, 306 Conn. 698, 706–07, 52 A.3d 591 (2012).  “The statute of limitations is not a jurisdictional bar to prosecution;  it is an affirmative defense, which must be raised and can be waived.”  State v. Coughlin, 61 Conn.App. 90, 97, 762 A.2d 1 (2000).  “As a defense, it is inextricably bound up with the question of criminal liability.   It is not an issue separate and distinct from the guilt determining process ․” (Emphasis original.)  State v. Coleman, 202 Conn. 86, 90, 519 A.2d 1201 (1987).  “The fact that the trial court, in its discretion, [may entertain] the defendant's motion to dismiss prior to trial does not automatically convert an affirmative defense into a right to be free of the trial itself.   As an affirmative defense, the statute of limitations provides the defendant with a shield, not against prosecution itself, but against a successful prosecution.”  Id., 91.   If a pretrial motion to dismiss based on a statute of limitations claim is denied by the court, counsel must still make efforts to reassert the defense before the jury in order to preserve any rights the defendant may have to raise issues related to the claim on appeal.   Id.;  see also, State v. Middlebrook, 51 Conn.App. 711, 713 n.4, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999).⁸

The petitioner's claim as it relates to the kidnapping in the first degree charge, in violation of General Statutes § 53a–92(a)(2)(B), does not require much discussion.   That charge as discussed above, was a class A felony for which there was no applicable statute of limitations at the time of the offense.  General Statutes § 54–193(a)(1).   Therefore, even assuming for purposes of argument that the trial court would even have allowed defense counsel to present evidence on the statute of limitations defense as to this charge before the jury,⁹ there is no reasonable probability to believe that he would have been able to obtain a different or more favorable result for the petitioner.  Strickland v. Washington, supra, 466 U.S. 694.   The jury would have been instructed by the court that no statute of limitations existed, and it is presumed that the jury would have followed this instruction.   State v. Ramos, 261 Conn. 156, 167, 801 A.2d 788 (2002).   As such, the petitioner's claim as to the kidnapping charge fails on the prejudice prong of the Strickland test, and it is not necessary for the court to address whether counsel's performance was constitutionally deficient.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

The petitioner's claim that trial counsel was ineffective for failing to assert the statute of limitations defense before the jury as to the sexual assault in the first degree charge also fails on the prejudice prong.   Strickland v. Washington, supra, 466 U.S. 694.   In denying defense counsel's pretrial motion to dismiss, the trial court ruled that, the crime having been reported within five years of its occurrence, and there being DNA to identify the perpetrator, the applicable statute of limitations was C.G.S. § 54–193b, and not the five-year period set forth in C.G.S. § 54–193.¹⁰

First, petitioner forwards an argument in his brief sounding as if he is asking this court to determine that the appropriate statute of limitations should have been the C.G.S. § 54–193.   A court sitting in a habeas capacity, however, does not review the correctness of the legal or factual determinations of the trial court not affecting jurisdiction.  United States v. Moore, 294 F. 852, 855 (2d Cir.1923);  Wojculewicz v. Cummings, 143 Conn. 624, 628–29, 124 A.2d 886 (1956).¹¹

Therefore, even if the petitioner were correct that that the trial court had applied the incorrect statute of limitations, this court could not entertain that argument in rendering its decision.  Id. That being said, it is reasonable for this court to presume that, had defense counsel made an effort to present evidence to the jury that the applicable statute of limitation was anything other than that contained in C.G.S. § 54–193b, the trial court would have prohibited it.  State v. Cerreta, 260 Conn. 251, 261, 796 A.2d 1176 (2002).   Therefore, there is no reasonable probability to believe that there would have been a different or more favorable result for the petitioner, because it is unlikely the jury would have ever have heard evidence that a different statute of limitations applied.   As such, the petitioner cannot establish he was prejudiced.  Strickland v. Washington, supra, 466 U.S. 694.

As discussed earlier in this decision, however, even if it were assumed for purposes of argument that defense counsel could have presented this evidence before the jury, it is presumed that the jury would have followed the trial court's instruction that there was no statute of limitation applicable to that charge;  State v. Ramos, supra, 261 Conn. 167;  because of the enactment of C.G.S. § 54–193b, which leads to the conclusion that there is, again, no reasonable probability to believe that the petitioner would have obtained a different or more favorable result.  Strickland v. Washington, supra, 466 U.S. 694.   As such, the petitioner's claim as to the sexual assault charge fails on the prejudice prong of the Strickland test and it is not necessary for the court to address whether counsel's performance was constitutionally deficient.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

Another issue raised by defense counsel during the pretrial motion to dismiss, and related to the statute of limitations defense, was that there had been an unreasonable and prejudicial prearrest delay.   The petitioner claims that defense counsel was also ineffective for failing to raise this issue before the jury.   The specific circumstances of the alleged pre-arrest delay will not be related at this time, because they are not relevant to the court's decision.

The petitioner's claim is misplaced.   Although it can be related to a statute of limitations defense, a claim of pre-arrest delay is a standalone claim asserting a due process violation, not a statutory affirmative defense.   State v. Littlejohn, 199 Conn. 631, 645, 408 A.2d 1376 (1986).  “[W]here the delay in arresting a defendant (or in otherwise apprising him of the charges against him) continues long after all the evidence has been assembled, and becomes a product of mere convenience to the state, a question of an unreasonable seizure or lack of a fair trial may arise.”  (Emphasis in original;  internal quotation marks omitted.)  State v. L'Heureux, 166 Conn. 312, 318, 348 A.2d 578 (1974).  “An allegation of a violation of due process, however, is a question of law”;  Council v. Commissioner of Correction, 114 Conn.App. 99, 103 n.1, 968 A.2d 483, 485 (2009);  and “[i]t shall be the duty of the court to decide all questions of law arising in the trial of a cause.”   State v. Gannon, 75 Conn. 206, 233, 52 A. 727 (1902).   Therefore, there can be no finding that Attorney Mandanici was constitutionally deficient in his representation for not attempting to present this claim before the jury, because it is not a question for the jury to decide.  Strickland v. Washington, supra, 466 U.S. 687.   As such, the petitioner's claim fails, and it is not necessary for the court to address the issue of prejudice.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.¹²

III. Conclusion

Based on the foregoing, the petition for writ of habeas corpus—as to count one is GRANTED.   The petitioner's December 16, 2004 conviction for kidnapping in the first degree violation of General Statutes § 53a–92(a)(2)(B) is ordered vacated and the matter is ordered remanded back to the Judicial District of Waterbury for a new trial on that charge and the establishment of appropriate bond conditions under applicable law and procedures.   The remaining claims in the petition are DENIED.

If either party wishes to appeal this ruling, then counsel shall prepare and submit a judgment file to the clerk within thirty (30) days.   Notwithstanding, all other necessary appellate forms shall be filed within the time-frames set forth in applicable Practice Book and/or statutory sections.

Hon. John M. Newson

FOOTNOTES

FN1. The statute provides the following, in pertinent part:General Statutes § 53a–70.   Sexual assault in the first degree(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person ․.  FN1. The statute provides the following, in pertinent part:General Statutes § 53a–70.   Sexual assault in the first degree(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person ․

FN2. The statute provides the following in pertinent part:General Statutes § 53a–92.   Kidnapping in the first degree:(a) A person is guilty of kidnapping in the first degree when he abducts another person and:  ․ (2) he restrains the person abducted with intent to ․ (B) accomplish or advance the commission of a felony ․.  FN2. The statute provides the following in pertinent part:General Statutes § 53a–92.   Kidnapping in the first degree:(a) A person is guilty of kidnapping in the first degree when he abducts another person and:  ․ (2) he restrains the person abducted with intent to ․ (B) accomplish or advance the commission of a felony ․

FN3. “Practice Book § 23–(c) explicitly requires a petitioner to assert facts and any cause and prejudice that would permit review of an issue despite a claim of procedural default.   Although that provision states that ‘the reply shall not restate claims raised in the petition,’ it does not relieve the petitioner of his obligation with respect to the contents of a reply.  [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule ․ [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel ․ or ․ some interference by officials ․ would constitute cause under this standard.”  Anderson v. Commissioner of Correction, 114 Conn.App. 778, 788, 971 A.2d 766, 775 (2009)..  FN3. “Practice Book § 23–(c) explicitly requires a petitioner to assert facts and any cause and prejudice that would permit review of an issue despite a claim of procedural default.   Although that provision states that ‘the reply shall not restate claims raised in the petition,’ it does not relieve the petitioner of his obligation with respect to the contents of a reply.  [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule ․ [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel ․ or ․ some interference by officials ․ would constitute cause under this standard.”  Anderson v. Commissioner of Correction, 114 Conn.App. 778, 788, 971 A.2d 766, 775 (2009).

FN4. The emergency room physician testified as to the reports provided to him by the victim while being treated in the emergency room, and the emergency room reports were also admitted into evidence..  FN4. The emergency room physician testified as to the reports provided to him by the victim while being treated in the emergency room, and the emergency room reports were also admitted into evidence.

FN5. Exhibit 21A, Transcript of State v. Slater, December 15, 2004, pp. 24–40..  FN5. Exhibit 21A, Transcript of State v. Slater, December 15, 2004, pp. 24–40.

FN6. General Statutes § 54–193b.   Limitation of prosecution for sexual assault offenses when DNA evidence available Notwithstanding the provisions of sections 54–193 and 54–193a, there shall be no limitation of time within which a person may be prosecuted for a violation of section 53a–70, 53a–70a, 53a–70b, 53a–71, 53a–72a or 53a–72b, provided (1) the victim notified any police officer or state's attorney acting in such police officer's or state's attorney's official capacity of the commission of the offense not later than five years after the commission of the offense, and (2) the identity of the person who allegedly committed the offense has been established through a DNA (deoxyribonucleic acid) profile comparison using evidence collected at the time of the commission of the offense..  FN6. General Statutes § 54–193b.   Limitation of prosecution for sexual assault offenses when DNA evidence available Notwithstanding the provisions of sections 54–193 and 54–193a, there shall be no limitation of time within which a person may be prosecuted for a violation of section 53a–70, 53a–70a, 53a–70b, 53a–71, 53a–72a or 53a–72b, provided (1) the victim notified any police officer or state's attorney acting in such police officer's or state's attorney's official capacity of the commission of the offense not later than five years after the commission of the offense, and (2) the identity of the person who allegedly committed the offense has been established through a DNA (deoxyribonucleic acid) profile comparison using evidence collected at the time of the commission of the offense.

FN7. Exhibit 57A;  Notwithstanding that a statute of limitations on Class A Felonies did not exist at the time of the petitioner's crime;  C.G.S. § 54–193;  counsel's contention at the trial level was the difference between the two statutes of limitations violated the petitioner's right to equal protection..  FN7. Exhibit 57A;  Notwithstanding that a statute of limitations on Class A Felonies did not exist at the time of the petitioner's crime;  C.G.S. § 54–193;  counsel's contention at the trial level was the difference between the two statutes of limitations violated the petitioner's right to equal protection.

FN8. In Middlebrook, the court stated:  “We note that a violation of § 53a–117 is a Class B misdemeanor.   The statute of limitations for the state to prosecute a defendant on a misdemeanor charge is one year.  General Statutes § 54–193.   The state, in the present case, did not prosecute the defendant on the misdemeanor charge within the requisite one year limitation period.   The criminal act occurred on May 22, 1991, and the application for the arrest warrant of the defendant was not executed until January 1996.At first blush it might appear that we must reverse the defendant's conviction of criminal mischief in the third degree.   That is not the case.   The statute of limitations is not a jurisdictional bar to prosecution;  it is an affirmative defense, which must be raised and can be waived.  State v. Littlejohn, 199 Conn. 631, 639–40, 508 A.2d 1376 (1986);  State v. Coleman, 48 Conn.App. 260, 269, 709 A.2d 590, cert. granted on other grounds, 245 Conn. 907, 718 A.2d 15 (1998).After a thorough review of the file, transcripts and briefs, we conclude that the defendant never raised the statute of limitations as an affirmative defense to the charge of violating § 53a–117, criminal mischief in the third degree.   Because the statute of limitations is not a jurisdictional defense to prosecution, we are barred from reviewing the claim on appeal.”  State v. Middlebrook, supra, 51 Conn. 713 n.4..  FN8. In Middlebrook, the court stated:  “We note that a violation of § 53a–117 is a Class B misdemeanor.   The statute of limitations for the state to prosecute a defendant on a misdemeanor charge is one year.  General Statutes § 54–193.   The state, in the present case, did not prosecute the defendant on the misdemeanor charge within the requisite one year limitation period.   The criminal act occurred on May 22, 1991, and the application for the arrest warrant of the defendant was not executed until January 1996.At first blush it might appear that we must reverse the defendant's conviction of criminal mischief in the third degree.   That is not the case.   The statute of limitations is not a jurisdictional bar to prosecution;  it is an affirmative defense, which must be raised and can be waived.  State v. Littlejohn, 199 Conn. 631, 639–40, 508 A.2d 1376 (1986);  State v. Coleman, 48 Conn.App. 260, 269, 709 A.2d 590, cert. granted on other grounds, 245 Conn. 907, 718 A.2d 15 (1998).After a thorough review of the file, transcripts and briefs, we conclude that the defendant never raised the statute of limitations as an affirmative defense to the charge of violating § 53a–117, criminal mischief in the third degree.   Because the statute of limitations is not a jurisdictional defense to prosecution, we are barred from reviewing the claim on appeal.”  State v. Middlebrook, supra, 51 Conn. 713 n.4.

FN9. Without going into the issue in any detail, it is reasonable to presume that the trial court would have prohibited the defense from offering this evidence to the jury as irrelevant.  “Generally, an accused must comply with established rules of procedure and evidence in exercising his right to present a defense.   A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant's right is not violated.”  (Citation omitted.)  State v. Cerreta, 260 Conn. 251, 261, 796 A.2d 1176 (2002)..  FN9. Without going into the issue in any detail, it is reasonable to presume that the trial court would have prohibited the defense from offering this evidence to the jury as irrelevant.  “Generally, an accused must comply with established rules of procedure and evidence in exercising his right to present a defense.   A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant's right is not violated.”  (Citation omitted.)  State v. Cerreta, 260 Conn. 251, 261, 796 A.2d 1176 (2002).

FN10. The substance of the trial court's ruling was effectively ratified by State v. Skakel, 276 Conn. 633, 674, 888 A.2d 985 (2006), which had been granted certification for appeal at the time of the petitioner's trial, and which held that a modified or enlarged statute of limitations is presumptively to be applied retroactively to those crime for which the original statute of limitations has not expired, absent legislative intent to the contrary, thereby expressly reversing State v. Paradise, 189 Conn. 346, 456 A.2d 305 (1983), which had set the precedent that such statutes were presumptively prospective, absent clear legislative intent to the contrary..  FN10. The substance of the trial court's ruling was effectively ratified by State v. Skakel, 276 Conn. 633, 674, 888 A.2d 985 (2006), which had been granted certification for appeal at the time of the petitioner's trial, and which held that a modified or enlarged statute of limitations is presumptively to be applied retroactively to those crime for which the original statute of limitations has not expired, absent legislative intent to the contrary, thereby expressly reversing State v. Paradise, 189 Conn. 346, 456 A.2d 305 (1983), which had set the precedent that such statutes were presumptively prospective, absent clear legislative intent to the contrary.

FN11. See, also, Hickerson v. Willingham, 3:06–CV–777 (CED), 2006 WL 3422186 (D.Conn. Nov. 28, 2006) (“The court's role when reviewing a petition for writ of habeas corpus is to inquire into the legality of the petitioner's custody.   Cf. Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (district court in reviewing a habeas petition ‘does not review a judgment, but the lawfulness of the petitioner's custody simpliciter’).   The court does not act in an appellate capacity to review the determination that [the petitioner's] prior conviction rendered her ineligible for the one-year sentence reduction”)..  FN11. See, also, Hickerson v. Willingham, 3:06–CV–777 (CED), 2006 WL 3422186 (D.Conn. Nov. 28, 2006) (“The court's role when reviewing a petition for writ of habeas corpus is to inquire into the legality of the petitioner's custody.   Cf. Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (district court in reviewing a habeas petition ‘does not review a judgment, but the lawfulness of the petitioner's custody simpliciter’).   The court does not act in an appellate capacity to review the determination that [the petitioner's] prior conviction rendered her ineligible for the one-year sentence reduction”).

FN12. The court notes that the petitioner did not make any claim that defense counsel's presentation to the trial court was in deficient, but specifically argued that his claim was based on defense counsel's failure to reassert the various aspects of the pretrial motion to dismiss before the jury as an affirmative defense..  FN12. The court notes that the petitioner did not make any claim that defense counsel's presentation to the trial court was in deficient, but specifically argued that his claim was based on defense counsel's failure to reassert the various aspects of the pretrial motion to dismiss before the jury as an affirmative defense.

Newson, John M., J.