Opinion
No. WWM 07-0132918-T
September 9, 2009
MEMORANDUM OF DECISION ON THE DEFENDANT'S MOTION TO DISMISS
The defendant is charged with one count of kidnapping in the first degree, General Statutes § 53a-92, and one count of sexual assault in the first degree, General Statutes § 53a-70. He filed the present motion to dismiss on May 18, 2009. In the motion, the defendant argues that the sexual assault in the first degree count should be dismissed because the five-year statute of limitations found in General Statutes § 54-193(b) (Rev. to 1987), has expired. On July 31, 2009, the state filed a response to the motion. A hearing was held on August 3, 2009, and on August 10, 2009, the state and the defendant each filed supplemental memorandum of law. The court has reviewed and considered the testimony, the exhibits and the parties' memorandum. After applying the law to the facts, the court denies the defendant's motion to dismiss.
FINDINGS OF FACT
On November 21, 1988 at approximately 11:45 a.m., the victim reported to the Connecticut State Police that she had been forcibly sexually assaulted in her home in Killingly. Within minutes, troopers, as well as detectives from the Major Crime Squad, arrived at the home. The victim reported that the perpetrator had come to her door requesting water for his car which he claimed had overheated. She gave the perpetrator a gallon of water and watched as he returned to his car which was parked on the street in front of her house. Several minutes later, the perpetrator returned to the door asking for additional water. When she turned toward the sink to fill the water jug, the perpetrator grabbed a rod used for sharpening knives, put the rod to her neck and forced her into a bedroom. The perpetrator then pushed her onto the bed, removed her clothing and sexually assaulted her, ultimately ejaculating on her sweater and blouse. The perpetrator then fled. The victim used a tissue to wipe up the ejaculate and then called the state police.
In accordance with Gen. Stat. § 54-86e, the identity of the victim is not being disclosed.
The victim described the perpetrator as a white male, six feet tall, with a medium build and weighing one hundred ninety pounds. She further described him as twenty-two to twenty-four years of age with brown, coarse, collar-length wavy hair, wearing a black waist-length jacket, blue jeans and sneakers with a circular sole design. Additionally he drove a station wagon with wood grain siding.
The state police processed the scene in accordance with major crime squad protocols including canvassing the scene, creating a sketch map, dusting for fingerprints and taking still photographs. They also preserved tire track and foot print evidence outside the home and seized the victim's clothing and the tissue. The following day, the physical evidence including the victim's blouse and sweater were transported to the State Forensic Science Laboratory for examination for the presence of semen, blood type and blood grouping.
In 1988, the Forensic Science Laboratory did not have the ability to perform DNA analysis of evidence.
The state police also conducted a neighborhood canvass which unearthed a witness who had seen a cream-colored station wagon parked nearby during the relevant time period. The victim also met with a trooper and created a composite of the face of the perpetrator. A teletype describing the particulars of the crime was sent to all police departments in the states of Connecticut, Massachusetts and Rhode Island. Thereafter a copy of the composite sketch was sent to these departments and to local newspapers. The following day, the state police set up a spot check nearby the victim's house.
As a result of these various efforts, over the course of the next year, the Major Crime Squad received dozens of leads pointing to various suspects. These leads came from road troopers, from the sex crimes unit of the state police, from the Southington police department and from civilians who were exposed to newspaper accounts of the crime. The Major Crime Squad pursued each of these leads and eliminated each suspect. The victim herself on one occasion reported to the state police that she believed she may have seen the perpetrator riding in a car. The following day the state police were able to identify this individual and thereafter eliminated him as a suspect. Additionally during the course of the investigation, the victim was shown six or more photo arrays but was unable to identify a suspect from any of the arrays.
On May 26, 1989, the laboratory conducted serological testing of cuttings from the blouse and sweater with the result that antigens B and H were detected. The laboratory reported these findings to the state police and thereafter retained the cuttings in its files. By eighteen months after the crime, all leads had been exhausted and per state police protocol, the investigation was suspended.
See n. 1.
In 2003, the state of Connecticut received a grant from the federal government to reopen and examine biological evidence from cold cases. Accordingly the cuttings from the blouse and sweater were tested for the presence of DNA, a DNA profile was developed and this profile was imported into the national CODIS data base on November 22, 2003. Meanwhile, in February 2004, the defendant gave a DNA sample to Massachusetts authorities for inclusion in the Commonwealth's CODIS database. As a convicted felon, Massachusetts required him to give such a sample. In January 2005, the defendant's DNA profile was imported into the CODIS database and on March 11, 2005, the defendant's profile was run against that database. The defendant's profile matched the profile made from evidence seized from a crime scene in Quincy, Massachusetts in 1989 as well as the profile from the Killingly sexual assault. On March 25, 2005, both the Massachusetts and the Connecticut CODIS administrators were notified of these matches. In accordance with established protocols, the identity of the person in the Massachusetts database was not, however, disclosed to the Connecticut CODIS administrator.
CODIS or the Combined DNA Index System is a network of electronically connected DNA databases which includes profiles from the Federal Bureau of Investigation, the fifty states, Puerto Rico, Washington, D.C. and the United States Army.
In Massachusetts, this database consists of DNA from crime scene evidence, convicted offenders and missing persons.
Connecticut's CODIS administrator, Michael Bourke, informed his counter part in Massachusetts of Connecticut's interest in pursuing this matter. As a result, the Massachusetts laboratory commenced their standard procedure to verify the accuracy of its findings. Upon completion of the verification process, on April 25, 2005, the Massachusetts CODIS administrator sent a confirmation letter to Bourke disclosing the defendant's identity and verifying that the DNA profile from Killingly matched the DNA profile of the defendant. In the interim, blood samples from the victim and her husband had been obtained and the Connecticut laboratory had conducted its own testing to create DNA profiles from these samples.
The Massachusetts included retesting a blood sample from the offender, verifying that the fingerprints of the person who donated the blood matched the fingerprints of the person who was required to donate the blood and verifying that the defendant had in fact been convicted of a DNA donation eligible crime.
Pursuant to a search and seizure warrant issued by the Norfolk County Superior Court, on May 19, 2006, a buccal swab was taken from the defendant who was housed at the Suffolk County House of Corrections on an unrelated matter. The DNA from the buccal swab was then tested by the Connecticut Laboratory and compared to the evidence from the Killingly crime. Thereafter, on October 6, 2006, Bourke reported to the state police that the findings were "consistent with [the defendant] being the source of the DNA profiles from . . . [the cuttings of the] blouse and . . . [the cutting from the] sweater." On November 14, 2006, Bourke additionally reported that there is a fewer than one in 300 million likelihood that the DNA profile belongs to someone other than the defendant. Ultimately a warrant for the defendant's arrest was sought on February 2, 2007, signed by Judge Calmar that same day and executed upon the defendant on August 17, 2007.
Since convicted offender profiles are retained in the CODIS data base solely for research purposes, before a DNA match could be used for purposes of an arrest or prosecution, the Connecticut state police is required to obtain a second sample. Bourke testified that such second samples are additionally used to provide a second check on the accuracy of the first sample.
At the hearing on the motion to dismiss, Angela Andino testified that the defendant is the father of a daughter born to Andino in 1987 and that from 1987-1990, Andino and the defendant resided together in Quincy. Thereafter, although the parties split up, they shared joint custody of the child and the defendant consistently exercised his visitation rights. After 1990, the defendant resided in Squantum, Rockland and Kingstown, Massachusetts. When, during a military commitment Andino was deployed overseas, their daughter resided with the defendant in Massachusetts. Thereafter, in 2004, the defendant was incarcerated at the Dedham correctional center and Andino was returned to the United States to care for their child. According to Andino, she has known the defendant for the past twenty-four years and during that entire time, the defendant has always resided in southeastern Massachusetts.
From 1983 — 1999, Eileen Katz was the defendant's supervisor at E.L. Cooney, a food brokerage firm located in Braintree. According to Katz, the entire time he was employed at Cooney, the defendant resided in Massachusetts and reported to the Braintree facility on a daily basis. In the course of his employment with Cooney, the defendant had occasion to travel to Connecticut to deliver product samples to customers and on infrequent occasions would stay overnight on Cooney business. Katz testified, however, that "there is no way to know" the number of times the defendant went to Connecticut, that it was strictly on an as-needed basis depending on customer need which could have been as often as twice per week or as little as once every other month.
Katz left Cooney's employ in 1999, but the defendant continued to work there.
Documentary evidence introduced at the hearing indicates that the defendant has never held a Connecticut motor vehicle operator's license, has never registered a car in Connecticut and has no record of any criminal or motor vehicle convictions in Connecticut. Other evidence shows that the defendant held a Massachusetts operator's license from October 10, 1985 — January 9, 2008 and that ninety-seven entries were made to his Massachusetts driving history for the period December 14, 1985 — August 20, 2007. Additionally the defendant's Massachusetts criminal history shows twenty-seven arrests from February 23, 1983 through August 17, 2007 as well as periods of incarceration in 2003, 2004 and 2005 — 07. In preparation for this hearing, Michael Hurley, an inspector for the state's attorney's office, also searched the Lexis/Nexis ACCURATE data base for addresses associated with the defendant. Hurley found ten addresses for the defendant at various locations in Massachusetts and no addresses for the defendant in any other state.
Additional facts will be discussed as necessary.
DISCUSSION
The defendant is charged with one count of kidnapping in the first degree, General Statutes § 53a-92, and one count of sexual assault in the first degree, General Statutes § 53a-70. He filed the present motion to dismiss on May 18, 2009. In the motion, the defendant avers that the sexual assault in the first degree count should be dismissed because the five-year statute of limitations found in General Statutes § 54-193(b) has expired.
The defendant claims that, if the offense occurred on November 21, 1988, then the state was required to commence the prosecution by November 22, 1993, which it failed to do. The state responds that, under General Statutes § 54-193(c), the defendant's absence from the state of Connecticut tolled the statute of limitations such that the time for prosecution under § 54-193(b) had not expired at the time the warrant was issued for the arrest of the defendant.
General Statutes § 54-193(c) provides: "If the person against whom an indictment, information or complaint for any of said offenses is brought has fled from and resided out of this state during the period so limited, it may be brought against such person at any time within such period, during which such person resides in this state, after the commission of the offense." Section 54-193(c) has been in force during all relevant time periods.
In response to the state's invocation of § 54-193(c), the defendant makes four arguments: (1) § 54-193(c) is not a tolling statute; (2) § 54-193(c) is inapplicable because the defendant did not flee within the meaning of the term as used in the statute; (3) the state did not meet its burden to show that the defendant was not present in Connecticut for sufficient time to prevent the expiration of the statute of limitations; and (4) since the state could have easily obtained an arrest warrant within the applicable time limit, the statute of limitations was not tolled.
Under Practice Book § 41-8, "[t]he following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information . . . (3) Statute of limitations" "The tenor and apparent purpose of [§ 41-8] is to authorize a motion to dismiss by a defendant for the specific reasons stated in that section or for any other grounds that constitute defects inherent in the initiation or prosecution of a criminal case that would prevent the state from successfully concluding a prosecution that it desires to continue." State v. Talton, 209 Conn. 133, 139, 547 A.2d 543 (1988).
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . In determining whether the evidence proffered by the state is adequate to avoid dismissal, such proof must be viewed in the light most favorable to the state . . ." State v. Howell, 98 Conn.App. 369, 377-78, 908 A.2d 1145 (2006). "On a motion to dismiss an information, the proffered proof is to be viewed most favorably to the state." (Citations omitted.) State v. Morill, 193 Conn. 602, 611, 478 A.2d 994 (1984). Accord State v. Kinchen, 243 Conn. 690, 702, 707 A.2d 1255 (1998).
A.
The defendant first claims that Gen. Stat. § 54-193(c) is not a tolling statute. The defendant cites no authority for this proposition but instead argues that the plain language of § 54-193(c) mandates such a conclusion. The court disagrees with the defendant.
In State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987), the Supreme Court had occasion to determine the meaning of the requirement contained within § 54-193(b) that a "prosecution" be initiated within the period of the statute of limitations. The court held "[i]n this state, the initial step to commence a prosecution, when an arrest is to be made by virtue of a warrant, is the presentation of an application for a warrant, which is accompanied by an affidavit, by a prosecutorial official to a judicial authority. If the judicial authority finds that the accompanying affidavit shows probable cause to believe that an offense has been committed, and that the person complained against committed it, the judicial authority may issue an arrest warrant . . .
"When an arrest warrant has been issued, and the prosecutorial official has promptly delivered it to a proper officer for service, he has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him. When the prosecutorial official 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 a lack of due diligence on the part of the officer charged with executing the warrant, for managing to avoid apprehension to a point in time beyond the period of limitation." Id. at 449-50. "General Statute § 54-193(c) does not require a different result. [§ 54-193(c)], which tolls the statute as to a person who has fled from and resides outside the state after the commission of the offense, simply extends the time within which an `indictment, information or complaint' may be brought." (Emphasis added.) Id. at 450 n. 12.
Thereafter in State v. Ali, 233 Conn. 403, 660 A.2d 337 (1995), the issue before the Court was whether a defense based on the statute of limitations is a question of law for the trial court or a question of fact for the jury. Before deciding this issue, the court first clarified its holding in Crawford that the issuance of an arrest warrant "tolls" the limitation period. The court noted that in Crawford, it had "used the term `tolled' . . . in connection with § 54-193(b) merely to describe the practical effect of a delay in the execution of an arrest warrant." The court acknowledged that the "traditional meaning of the term `toll' within the parlance of the statute of limitations [is] as a synonym for `suspend.'" Id. at 423 n. 8. Accordingly, its use of the word "tolls" to describe the effect on the statute of limitations when an arrest warrant has been issued mischaracterizes the effect on the statute of limitations because "a `prosecution' within the applicable time period satisfies, rather than `tolls,' the statute." In so deciding the court further concluded that "[o]nly § 54-193(c) specifically concerns the tolling of the statute of limitations." (Emphasis added.) Id. After clarifying the nomenclature relevant to the statute of limitations, the court then held that affirmative defense of the statute of limitations is a question of fact to be determined by the jury.
Finally, in Rouillard v. Commissioner of Correction, 35 Conn.App. 754, 646 A.2d 948, cert. denied, 231 Conn. 945, 653 A.2d 827 (1994), the Appellate Court considered whether a defense counsel's failure to raise a statute of limitations defense constituted ineffective assistance of counsel. The court held that in light of the habeas petitioner's absence from the state for significant periods of time, trial defense counsel's failure to raise that defense did not amount to ineffective assistance of counsel because " [s]ection 54-193(c) tolls the statute of limitations while an accused resides out-of-state." (Emphasis added.) Id., 761-62. It is abundantly clear from Crawford, Ali and Rouillard, therefore, that § 54-193(c) is a tolling statute. Accordingly this claim of the defendant fails.
B.
The defendant next claims that even if § 54-193(c) could be considered a tolling statute, the state did not present sufficient evidence at the hearing to prove that the defendant fled the state or resided out of state during the period of limitation. Thus the defendant argues the statute of limitations was not tolled.
"Where a motion to dismiss an information against an accused is made prior to trial, only probable cause sufficient to justify the continued prosecution need be established. The `probable cause' determination is, simply, an analysis of probabilities . . . The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act . . . [P]roof of probable cause requires less proof than a preponderance of the evidence." (Citations omitted.) State v. Howell, supra, 98 Conn.App. 378. In the present case, therefore, to survive the defendant's motion to dismiss and to continue with the prosecution, the state had the burden to establish to a standard of probable cause both that the defendant fled the state and that he did not reside in the state for a five-year period after the commission of the crime.
General Statute § 54-193(c) provides: "If the person against whom an indictment, information or complaint for any of said offenses is brought has fled from and resided out of this state during the period so limited, it may be brought against such person at any time within such period, during which such person resides in this state, after the commission of the offense." In deciding whether the state has adduced sufficient evidence to survive the defendant's motion to dismiss, the court, therefore, is first required to determine the meaning of the phrase "fled from and resided out of this state."
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature, . . . In other words, we seek to determine in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us to first consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering its relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . In addition, General Statutes § 1-1(a) provides in relevant part that the words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have a peculiar and appropriate meaning in the law, shall be construed and understood accordingly . . . When a statute does not define a term, we look to the common understanding expressed in the law and in the dictionaries." (Citations omitted; internal quotation marks omitted.) State v. Winer, 112 Conn.App. 458, 464, 963 A.2d 89, cert. denied, 292 Conn. 903 (2009). In the present case, the tolling statute, Gen. Stat. § 54-193(c), does not define the terms fled or resides and there are no reported cases in Connecticut interpreting these terms in the context of the statute of limitations.
Other states have a variety of different statutes addressing the issue of when their statute of limitations is tolled. Some states have statutes requiring a specific intent to avoid prosecution; see e.g., Alaska Stat. § 12.10.040 (2009) ("The period of limitation does not run during any time when the accused, with a purpose to avoid detection, apprehension, or prosecution, is outside the state . . ."); while other states simply exclude the time during which the suspect is not a resident; see e.g., 720 Ill. Comp. Stat. 5/3-7 (2009) ("The period within which a prosecution must be commenced does not include any period in which . . . [t]he defendant is not usually and publicly resident within this State . . ."); or exclude any time during which the suspect is merely physically absent. See e.g., Colo. Rev. Stat. § 16-5-401(2) (2008) ("[I]f the adult offender or juvenile is absent from the state of Colorado, then the duration of such absence . . . shall be excluded . . ."). In contrast to the various states, the federal statute, 18 U.S.C. § 3290, provides: "No statute of limitations shall extend to any person fleeing from justice."
In Connecticut, at least in the extradition context, the phrase "a person . . . [who has] fled from" the state has been defined to mean a person who is a "fugitive from justice." Clark v. Commissioner of Correction, 281 Conn. 380, 383 n. 4 (2007) (The term "fugitive from justice" is used to describe a person who, having been charged with the commission of a crime in one state, has "fled from" that state to another). By adopting this construction of the phrase "fled from this state," our tolling statute, therefore, appears to most closely resemble the federal statute. Accordingly this court will look to the federal courts for guidance in its interpretation.
"The substance of [18 U.S.C.] § 3290 dates back to 1790 . . . and the leading `modern' case interpreting it is Streep v. United States, 160 U.S. 128, 16 S.Ct. 244 (1895)." U.S. v. Rivera-Ventura, 72 F.3d 277, 282 (2d Cir. 1995). In Streep, the Supreme Court held that: "[I]t is quite clear that any person who takes himself out of the jurisdiction, with the intention of avoiding being brought to justice for a particular offense, can have no benefit of the [statute of] limitation[s], at least when prosecuted for that offence in a court of the United States.
"To be a fugitive from justice . . . it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indictment found, or for purpose of avoiding a prosecution anticipated or begun, but simply having within a State committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offence, he has left its jurisdiction and is found within the territory of another." Streep v. United States, supra, 160 U.S. 133-34.
The various circuit courts have had occasion to interpret and refine the phrase "fleeing from justice" but there remains disagreement within the circuits as to the interpretation to be given. The second circuit and most of the other circuits have concluded that "only those persons shall be denied the benefit of the statute of limitations who have absented themselves from the jurisdiction with the intent of escaping prosecution." Jhirad v. Ferrandina, 486 F.2d 442, 444-45 (2d Cir. 1973). Accord United States v. Rivera-Ventura, 72 F.3d 277 (2d Cir. 1995). See Ross v. United States Marshal, 168 F.3d (10th Cir. 1999), United States v. Greever, 134 F.3d (6th Cir.); United States v. Fonesca-Machado, 53 F.3d 1242 (11th Cir. 1995); United States v. Marshall, 856 F.2d (7th Cir.); United States v. Wazney, 529 F.2d 1287 (9th Cir. 1976); Brouse v. United States, 68 F.2d 294 (1st Cir. 1933). Decisions by the eighth circuit and the D.C. Circuits suggest, however, that the specific intent to avoid prosecution is not essential to toll a statute of limitations on account of flight. See In re Assarsson, 687 F.2d 1157 (8th Cir. 1982); McGowen v. United States, 105 F.2d 791 (D.C. Cir. 1939). For purposes of this motion, the court adopts the majority view that "fugitive from justice" means that an accused absented himself with the intent to avoid prosecution.
In the present case, evidence adduced at the hearing shows that on November 21, 1988, the defendant was a resident of Massachusetts who had criminal and motor vehicle convictions in that state. The evidence also shows that he drove to Connecticut, a state with which he had no ties, and committed a violent sexual assault. During the assault, the victim repeatedly pleaded with the defendant not to assault her thus putting him on notice that she was an unwilling participant in his actions and that she would likely make complaint to the police. Immediately after the assault, the defendant fled from the victim's residence, returned to his car and fled to Massachusetts. Within minutes, the state police were on the scene, processed it for evidence and, inter alia, located and preserved tire track evidence. They conducted a neighborhood canvass and over a number of days conducted spot checks in the area. None of these measures, however, enabled the police to locate the defendant. The defendant, having fled to his home state of Massachusetts, continued to reside there until his arrest and rendition to Connecticut in 2007. From this evidence it can reasonably be inferred that the defendant, knowing that he had committed a serious and violent crime, fled Connecticut with the intent to avoid detection, arrest and prosecution for that crime. See United States v. Ballesteros-Cordova, 586 F.2d 1321, 1324 (9th Cir. 1978) (defendant fled from justice within the meaning of § 3290 when he fled the United States knowing of the possibility of arrest).
The defendant argues that Massachusetts was his place of residence and that when he left Connecticut, he was simply returning home. The defendant did not testify at the hearing. Thus it would be speculation for this court to conclude that the defendant left Connecticut to simply return home. Moreover, even assuming the defendant left Connecticut, in part, for that purpose, this fact does not preclude the court from finding that he also left Connecticut to avoid prosecution. See State v. Hazel, 106 Conn.App. 213, 225-27, 941 A.2d 378, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008) (simultaneous intents not necessarily mutually exclusive). Nor is the court required to accept an innocent explanation for the defendant's actions. See State v. Grant, 286 Conn. 499, 517-18, 944 A.2d 947 (2008) (possibility of innocent explanation does not vitiate probable cause); United States v. Florez, 447 F.3d 145, 153 (2d Cir. 2006) (trial court is not required to accept a defendant's innocent explanation for his flight).
The defendant next claims that the state has failed to prove that he resided out of the state for a period of five years. According to the American Heritage Dictionary, "to reside" means "to live in a place permanently or for an extended period of time." American Heritage Dictionary of the English Language (4th Ed. 2009). In the context of the sex offender registry, the Appellate Court has defined a defendant's residence as "wherever he was dwelling, no matter how temporary a situation." State v. Winer, supra, 112 Conn.App. 465.
In the present case, Angela Andino and Eileen Katz, both of whom had known the defendant since at least 1987, testified that the defendant has always resided in southeastern Massachusetts. Documentary evidence introduced at the hearing further indicates that the defendant has never held a Connecticut motor vehicle operator's license, has never registered a car in Connecticut and has no criminal or motor vehicle record in Connecticut. Other evidence established that the defendant held a Massachusetts operator's license from October 10, 1985 — January 9, 2008, that his Massachusetts criminal record includes twenty-seven arrests from February 23, 1983 through August 17, 2007 and that he lived at ten different addresses in Massachusetts throughout the relevant time period. Moreover, the defendant has never had an address in any state other than Massachusetts. The credible evidence shows, therefore, that at no time, has the defendant ever resided, temporarily or otherwise, in the state of Connecticut.
Construing the evidence in the light most favorable to the state as the court is required to do in deciding a motion to dismiss, the court concludes that there is probable cause to believe that immediately after the commission of the crime, the defendant fled from this state and resided out of this state during the period of limitation. Accordingly, this claim of the defendant fails.
C.
Lastly the defendant claims that § 54-193(c) did not toll the running of the statute of limitations in the present case because the state did not, but could have, obtained an arrest warrant for the defendant within the period of limitation. The defendant points to Practice Book § 36-3 which allows for the issuance of "John Doe" warrants and to the Crawford requirement that a warrant be issued within the period of limitation. The court disagrees both that an arrest warrant could have been obtained and that the Crawford warrant requirement applies to Gen. Sta. § 54-193(c).
The defendant argues that the language in footnote twelve of Crawford engrafts a requirement onto § 54-193(c) that the state must obtain an arrest warrant within five years of the crime unless the state has a valid reason why it could not procure such a warrant. Footnote twelve of Crawford imposes no such requirement, but describes § 54-193(c) as "simply [extending] the time within which an `indictment, information or complaint' may be brought." Id., 450 n. 12. Footnote twelve further states in relevant part: "[w]hile under our present holding the issuance of an arrest warrant within the period of limitation might accomplish the same result [as the application of § 54-193(c)], there may be valid reasons why the prosecuting authority cannot procure an arrest warrant while an accused is absent from the state." (Emphasis added.) Id. Thus footnote twelve, rather than engrafting a warrant requirement into § 54-193(c), appears merely to explain the rationale for the existence of both the Crawford warrant rule and § 54-193(c). To conclude otherwise would defeat the purpose of the tolling statute and would reward an accused "for managing to avoid apprehension to a point in time beyond the period of limitation." State v Crawford, supra, 202 Conn. 450.
The purpose of a tolling statute is to minimize the disadvantage to the prosecution when an accused takes steps to avoid prosecution by actual or constructive flight. In so doing, a tolling statute walks the fine line between minimizing harm to the state by a defendant's avoidance of prosecution and minimizing harm to the accused by a delayed prosecution. See United States v. Wazney, 529 F.2d 1287, 1289 (9th Cir. 1976) (the statute of limitations is made inapplicable whenever an accused flees from justice because the failure to prosecute is due to the unacceptable conduct of the accused). Donnell v. United States, 229 F.2d 560, 565 (5th Cir. 1956) (those persons shall be denied the benefit of the statute of limitations who have absented themselves from the jurisdiction of the crime with the intent of escaping prosecution); State v. Skakel, 276 Conn. 633, 677, 888 A.2d 985 (2006) (statutes of limitations are designed to protect individuals from having to defend against charges when the basic facts may have become obscured by the passage of time and to minimize the dangers of official punishment because of acts in the far distant facts). General Statute § 54-193(c) imposes only two requirements: that the accused must have fled from the state after the commission of the crime and that the accused not have resided in Connecticut during the limitation period. Unlike § 54-193(b), there is no requirement that the prosecution be initiated by the issuance of an arrest warrant within the period of limitation. Accordingly this claim of the defendant fails.
Even if Crawford could be construed as mandating the issuance of an arrest warrant within five years unless the state has a valid reason why it did not obtain one, in the present case, the state could not have obtained an arrest warrant in time. Practice Book § 36-3 provides that an arrest "warrant shall be signed by the judicial authority and shall contain the name of the accused person, or if such name is unknown, any name or description by which the accused can be identified with reasonable certainty . . . It shall state the offense charged and direct any officer authorized to execute it to arrest the accused person and to bring him . . . before a judicial authority without undue delay." The defendant claims that had the sweater and blouse been tested for DNA within five years of the crime, a DNA profile would have been obtained which would have identified the perpetrator with enough certainty that an arrest warrant could have been obtained. The court disagrees with the defendant.
It is undisputed that until 2005, the sole evidence identifying the defendant as the perpetrator consisted of the victim's eyewitness description and the serological test results from May 26, 1989. In 2003, the state received federal money to conduct DNA testing on cold case evidence. As a result, the sweater and blouse were analyzed utilizing the latest generation of DNA testing and analysis known as Polmerase Chain Reaction (PCR)/Short Tandem Repeats (STR). A DNA profile was developed from this testing and on November 22, 2003, this profile was imported into the CODIS database. This profile was then compared against the profiles already contained in database, but no match was found. In 2004, the defendant's DNA profile was developed using STR analysis and this profile was imported into the CODIS database in January 2005. The defendant's profile was then run against the database resulting in a match with the profile from the sweater and blouse. After a series of verification tests on the part of both the Massachusetts and Connecticut laboratories, the defendant's identity was made known in 2005.
The laboratory first began DNA testing in 1991 or 1992 and it initiated its DNA database in 1993 or 1994. During that period the laboratory utilized a type of DNA analysis known as Restriction Fragment Length Polymorphism (RFLP). Therefore, if the blouse and sweater had undergone DNA analysis within five years of the crime, the results, if any, would have been reported as an RFLP analysis. RFLP testing and analysis was one of the first generations of DNA testing and analysis. One of the drawbacks of RFLP testing, however, is that it requires a high quality and fairly large biological sample to successfully obtain a DNA profile. In contrast to RFLP, the STR analysis actually used on the sweater, the blouse and the defendant's buccal swab relies upon the amplification technique of PCR. Thus STR can be successfully utilized on older, smaller and degraded samples including samples inadequate for RFLP testing and analysis. United States v. Morrow, 374 F.Sup.2d 51 (D.D.C. 2005); District Attorney's Office for Third Judicial District v. Osborne, 129 S.Ct. 2309 (2009); Tucker v. Ryan, United States District Court, Docket No. CV-F-04-5662 OWW DLB HC (E.D.Cal. November 9, 2005).
In the present case, no evidence was adduced at the hearing to prove that the biological samples found on the sweater or blouse were of sufficient quantity or quality to yield a DNA profile utilizing RFLP testing. Without an RFLP profile, therefore, the sole evidence available to identify the defendant as the perpetrator of the Killingly sexual assault was the eyewitness and serological evidence from 1988. It is beyond dispute that this evidence, standing alone, is insufficient to identify, to a reasonable degree of certainty, the defendant. Therefore, no arrest warrant would have issued based on this evidence. Accordingly the defendant's claim that an arrest warrant could have been obtained prior to November 22, 1993 fails.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is denied.