State of Connecticut v. Elvin Caballero (2014)

MEMORANDUM OF DECISION

The defendant, Elvin Caballero, filed the following motions:  Motion for Discovery on November 15, 2013;  Motion for Essential Facts on December 18, 2013, and Motion for Bill of Particulars on December 18, 2013;  Motion to Dismiss and Supporting Memorandum of Law on December 13, 2013;  Petition for Private Investigator on February 6, 2014;  and Motion to Dismiss Arrest Warrant on February 6, 2014.

I

MOTION FOR DISCOVERY

The defendant requests the disclosure of all exculpatory evidence.   The State represented, in open court, that it is aware of its obligations under Brady v. Maryland ¹ and that it has turned over, and will continue to turn over, all such evidence.   No further action on this motion is required.

II

MOTION FOR ESSENTIAL FACTS & MOTION FOR BILL OF PARTICULARS

The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise.   Sate v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983);  see Practice Book §§ 41–20, 41–21.   When ordered, a bill of particulars shall “disclose information sufficient to enable the defendant to prepare the defense, including ․ reasonable notice of the crime charged and the date, time, and place of its commission.”  Practice Book § 41–21.   On February 10, 2014, the State filed a long form including, inter alia, the information required by Practice Book § 41–21.   No further action on this motion is required.

III

MOTION TO DISMISS

The defendant moves to dismiss the charges of larceny in the second degree ² and forgery in the first degree, arguing that:  (1) the allegations were insufficient to support a charge of larceny in the second degree;  (2) this court lacks jurisdiction for the charges of larceny and forgery;  and (3) the charges of larceny and forgery are barred by the federal constitutional prohibition against double jeopardy.

General Statutes § 53a–123 provides in relevant part that “[a] person is guilty of larceny in the second degree when he commits larceny ․ and ․ the value of the property or service exceeds ten thousand dollars ․” The defendant argues that the State does not allege facts sufficient for a charge of larceny in the second degree because the value of the alleged stolen postal money orders cashed in Connecticut was $3,492.   This argument is moot because the State has reduced the charge of larceny in the second degree to a charge of larceny in the third degree.³

Second, the defendant argues that this court lacks jurisdiction because only nine of the thirty postal money orders in question were cashed in Connecticut.   The defendant's reliance on the location where the postal money orders in question were allegedly cashed is misplaced.  “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.”  Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987).   As to the charges of larceny, the alleged criminal act occurred in Connecticut, as all of the postal money orders in question were allegedly stolen from the West Cornwall Post Office in Cornwall, Connecticut.   Similarly, as to the charges of forgery, the written documents alleged to be forged were allegedly stolen from the West Cornwall Post Office in Cornwall, Connecticut.   The defendant's argument fails as the alleged larceny occurred in Connecticut and the allegedly forged written instruments were stolen from Connecticut.

Further, the defendant argues that the Litchfield judicial district is an improper venue in that the alleged crimes were committed in the New Haven judicial district.  General Statutes § 51–352 provides in relevant part that “[i]f theft is committed in one judicial district and the property stolen is carried into another judicial district, the offender may be tried in either judicial district.”   The Litchfield judicial district is a proper venue as the postal money orders in question were allegedly stolen in Cornwall, Connecticut, a town in Litchfield County.

Third, the defendant argues that the charges of larceny and forgery are barred by the federal constitution's prohibition against double jeopardy because he has been convicted of various charges related to forgery and theft of postal money orders in New Jersey and Pennsylvania.   The constitutional double jeopardy protection is “intended and specifically given ․ against second jeopardy for the same offense.”  Gavieres v. United States, 220 U.S. 338, 341–42, 31 S.Ct. 421, 55 L.Ed. 489 (1911).   The defendant's prior convictions in Pennsylvania and New Jersey arise from separate acts unrelated to the allegations brought by the State in this case.   Therefore, the defendant's double jeopardy argument fails.

For the foregoing reasons, the motion to dismiss is denied.

IV

PETITION FOR PRIVATE INVESTIGATOR

The defendant has requested a state-appointed private investigator to assist in his defense.   The defendant submitted a list of tasks for a private investigator to complete, but he failed to provide any information that would serve to explain why a private investigator is necessary.   For example, the defendant has not made an offer of proof as to, inter alia, (1) the information that the defendant believes a private investigator would uncover;  (2) the defenses that could be raised using such information;  and (3) how such information supports each defense.   Without, at least, the foregoing information, the court cannot conclude that the appointment of a private investigator would be of any relevant assistance to the defendant.   The petition for a private investigator is denied without prejudice.   If the defendant wishes to pursue his request for an investigator, he must file, under seal and ex parte, a revised petition that provides the court with a detailed statement setting forth the foregoing information.

V

MOTION TO DISMISS ARREST WARRANT

The defendant moves to dismiss the charges of larceny in the second degree ⁴ and forgery in the first degree, arguing that the warrant for his arrest was issued without probable cause.  “The determination of whether probable cause exists under the fourth amendment to the federal constitution ․ is made pursuant to a ‘totality of circumstances' test.”  State v. Velasco, 248 Conn. 183, 189–90, 728 A.2d 493 (1999), citing Illinois v. Gates, 462 U.S. 213, 231–32, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).  “Probable cause to arrest exists if (1) there is probable cause to believe a crime has been committed;  and (2) there is probable cause to believe that the person to be arrested committed that crime.”  (Internal quotation marks omitted.)  State v. Trine, 236 Conn. 216, 236, 673 A.2d 1098 (1996), citing State v. Magnotti, 198 Conn. 209, 213, 502 A.2d 404 (1985).   When a defendant raises a probable cause challenge to a warrant, “a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant.”  Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984).

The arrest warrant application includes statements from several sources, including two alleged accomplices and three post office employees.   Both of the alleged accomplices described the defendant's alleged participation in a scheme involving the forging and cashing of postal money orders.   Specifically, there are allegations supporting the warrant to the effect that the defendant drove each accomplice to various post offices and instructed them to complete and cash postal money orders.   The three post office employees each gave descriptions of a suspicious person, matching the defendant, when they were interviewed by police officers who were investigating incidents of attempted break-ins at post offices in the state.   Additionally, the arrest warrant application sets forth precise details regarding the postal money orders in question, including, inter alia, the serial numbers, dollar-amounts, dates, and locations of theft.   Accordingly, the arrest warrant application contained facts sufficient to establish probable cause.   The motion to dismiss is denied.

VI

CONCLUSION

No action is required on the Motion for Discovery, Motion for Essential Facts, and Motion for Bill of Particulars.   The Motion to Dismiss, Petition for Private Investigator, and Motion to Dismiss Arrest Warrant are denied.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. “[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)..  FN1. “[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

FN2. On February 10, 2014, a long form filing by the State reduced the charges of larceny in the second degree to larceny in the third degree..  FN2. On February 10, 2014, a long form filing by the State reduced the charges of larceny in the second degree to larceny in the third degree.

FN3. General Statutes § 53a–124 provides in relevant part that “[a] person is guilty of larceny in the third degree when he commits larceny ․ and ․ the value of the property or service exceeds two thousand dollars.”.  FN3. General Statutes § 53a–124 provides in relevant part that “[a] person is guilty of larceny in the third degree when he commits larceny ․ and ․ the value of the property or service exceeds two thousand dollars.”

FN4. On February 10, 2014, a long form filing by the State reduced the charges of larceny in the second degree to larceny in the third degree..  FN4. On February 10, 2014, a long form filing by the State reduced the charges of larceny in the second degree to larceny in the third degree.

Danaher, John A., J.