State v. Swebilius

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STATE OF CONNECTICUT v. JON SWEBILIUS
(SC 19526)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.*
Argued September 23, 2016—officially released May 30, 2017
Daniel M. Erwin, for the appellant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Leon F. Dalbec, Jr., and James Dinnan,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
PALMER, J. In State v. Crawford, 202 Conn. 443, 521
A.2d 1034 (1987), this court held that a criminal statute
of limitations will be tolled by the issuance of an arrest
warrant within the statutory limitation period, as long
as the warrant is executed ‘‘without unreasonable
delay.’’ Id., 451. The defendant, Jon Swebilius, was
charged with possession of child pornography in the
first degree in violation of General Statutes (Rev. to
2007) § 53a-196d (a) and was arrested thirty-two days
after the issuance of a warrant for his arrest and thirteen
days after the expiration of the applicable five year
statute of limitations for that offense.1 The defendant
moved to dismiss the charge on the ground that the
prosecution was barred by the statute of limitations
because, he claimed, the delay in the execution of the
warrant was unreasonable. The trial court denied the
motion, and the defendant appealed to the Appellate
Court, which affirmed the judgment of the trial court,
concluding that the delay was reasonable as a matter
of law under Crawford and its progeny. State v. Swebi-
lius, 158 Conn. App. 418, 423–28, 119 A.3d 601 (2015).
We granted the defendant’s petition for certification
to appeal, limited to the following question: ‘‘Did the
Appellate Court properly affirm the trial court’s deci-
sion denying the defendant’s motion to dismiss pursu-
ant to . . . Crawford . . . ?’’ (Citation omitted.) State
v. Swebilius, 318 Conn. 907, 122 A.3d 635 (2015). We
conclude that the Appellate Court incorrectly deter-
mined that a thirty-two day delay in the execution of
an arrest warrant, where the warrant was executed after
the expiration of the limitation period, is reasonable as
a matter of law such that the state was under no obliga-
tion to present evidence demonstrating that the delay
was not objectively unreasonable and, therefore, excus-
able. Accordingly, we reverse the judgment of the
Appellate Court with direction to remand the case to
the trial court for a hearing on whether the delay in
the execution of the warrant was reasonable under the
circumstances.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. On
May 28, 2008, the Connecticut State Police executed a
search warrant on room number 59 at the Meriden Inn,
the defendant’s place of residence at the time. During
the search, the police seized thirty-four computer
related items, which were submitted on the same day
to the state forensic laboratory for analysis. The police
did not receive the results of the forensic analysis until
April 2, 2013, and another month elapsed before they
secured a warrant for the defendant’s arrest.2 The arrest
warrant was issued on May 9, 2013, nineteen days before
the expiration of the five year limitation period of Gen-
eral Statutes (Rev. to 2007) § 54-193 (b). A short time
after the limitation period expired, the defendant con-
tacted the state police seeking the return of the property
seized from his residence on May 28, 2008. As a result
of this inquiry, the defendant learned about the warrant
for his arrest, and, on June 10, 2013, he voluntarily
surrendered to the state police.3
Following his arrest, the defendant moved to dismiss
the charge, claiming that, even though the arrest war-
rant had been issued within the statutory limitation
period, the delay in its execution was unreasonable,
and, therefore, the prosecution was barred by the stat-
ute of limitations. Prior to the hearing on his motion
to dismiss, the defendant entered a conditional plea of
nolo contendere subject to the trial court’s ruling on
the motion to dismiss. Thereafter, a hearing on that
motion was held before the court, S. Moore, J. At the
hearing, the defendant presented uncontested evidence
that he had lived openly in Connecticut and was avail-
able for arrest throughout the five year limitation
period. The state adduced no evidence. Following the
hearing, the trial court found that the defendant ‘‘was
not elusive, was available in the area and did not evade
at the time service was made.’’ The court also found
that the state police ‘‘did not attempt execution of the
[arrest] warrant before June 10, 2013, and only executed
the warrant on that date upon the [defendant’s] surren-
dering himself at the police barracks.’’ Although the
state presented no evidence as to the reasons for the
delay in the execution of the arrest warrant, it argued
that the delay was not unreasonable because of its short
duration, because the defendant suffered no prejudice
as a result thereof, and because there had been ‘‘no
showing’’ by the defendant ‘‘of any lack of due dili-
gence’’ on the part of the police in executing the
warrant.
The trial court agreed with the state that the issuance
of the arrest warrant, in this case, tolled the statute of
limitations. Although it recognized that, under Craw-
ford, ‘‘there is no per se approach as to what constitutes
a reasonable time to execute a warrant,’’ the court was
unable to find ‘‘that a period of time as [short] as [thirty-
two] days would be considered unreasonable,’’ noting
that delays found by other courts to be unreasonable
typically involved significantly longer periods of time.4
Thus, the court concluded that, ‘‘[a]lthough the police
efforts might be characterized as [minimal] or nonexis-
tent . . . given the very short period of time that
elapsed from the signing of the warrant to the execution
of service, the police actions resulted in a timely com-
mencement of prosecution.’’5
The defendant appealed to the Appellate Court,
claiming that the trial court improperly relied solely on
the length of the delay in finding that the thirty-two day
delay was reasonable. See State v. Swebilius, supra, 158
Conn. App. 419–20, 427. The Appellate Court disagreed.
The court acknowledged that, under State v. Soldi, 92
Conn. App. 849, 857, 887 A.2d 436, cert. denied, 277
Conn. 913, 895 A.2d 792 (2006), once a defendant has
demonstrated that he was in the state and available
for arrest during the relevant timeframe, the burden
generally shifts to the state to prove that any delay in
the execution of an arrest warrant was not unreason-
able. See State v. Swebilius, supra, 424. The court also
acknowledged that, under State v. Crawford, supra, 202
Conn. 451, the ‘‘failure to execute an arrest warrant for
even a short period of time might be unreasonable
. . . .’’ (Internal quotation marks omitted.) State v.
Swebilius, supra, 428. The court determined, however,
that State v. Kruelski, 41 Conn. App. 476, 487, 677 A.2d
951, cert. denied, 238 Conn. 903, 677 A.2d 1376 (1996),
which held that a one day delay in executing a warrant
beyond the statute of limitations was reasonable as a
matter of law, was controlling in the present case. State
v. Swebilius, supra, 428; see also id., 426–28 and n.8.
The Appellate Court reasoned that Kruelski established
that some delays may be so de minimis as to require
no justification by the state, and that the thirty-two day
delay in the present case fell into that category. See
id., 428.
On appeal to this court, the defendant argues that
the Appellate Court’s conclusion that the delay was
sufficiently brief as to require no justification ignores
this court’s express rejection of a per se rule in State
v. Crawford, supra, 202 Conn. 451, and this court’s
admonition therein that the failure to execute a warrant
‘‘for even a short period of time’’ might be unreasonable
in certain circumstances. Id. The defendant also argues
that allowing the state to extend the statute of limita-
tions without any showing of due diligence undermines
the right of defendants to fair and timely notice of the
charges against them, as well as the values of repose
and finality embodied in such statutes. The defendant
further contends that the Appellate Court’s reliance on
Kruelski was misplaced because, in that case, the police
executed the arrest warrant on the day they received
it, and, therefore, the court’s conclusion that the delay
was reasonable as a matter of law must be interpreted
in light of those facts rather than as evidence that the
court intended to create an exception to Crawford.
The state responds that, even if delays in the execu-
tion of a warrant require justification in all cases,
regardless of the brevity of the delay, Crawford places
the burden on the defendant to prove that the delay
was unreasonable. Thus, when the defendant fails to
produce evidence demonstrating that the police failed
to act with due diligence in serving a warrant, the delay
must be presumed to be reasonable. Accordingly, the
state maintains that cases such as State v. Soldi, supra,
92 Conn. App. 857, which shift the burden to the state
to justify delays in the execution of a warrant once the
defendant meets his burden of establishing his availabil-
ity for arrest during the relevant time period, are anti-
thetical to the holding in Crawford and should be
overruled.
We agree with the defendant that the Appellate Court
incorrectly determined that some delays in the execu-
tion of an arrest warrant may be so brief as to be
reasonable as a matter of law for the purpose of tolling
the applicable statute of limitations.6 We further con-
clude that the burden shifting framework that the Appel-
late Court applied in Soldi and other cases is fully
consistent with Crawford and properly allocates bur-
dens between the parties.
General Statutes (Rev. to 2007) § 54-193 (b) provides
in relevant part that ‘‘[n]o person may be prosecuted
for any offense, except a capital felony, a class A felony
or a violation of section 53a-54d or 53a-169, 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. . . .’’ In State v. Craw-
ford, supra, 202 Conn. 447, in which the applicable time
limitation for the misdemeanor offenses charged was
one year, this court was asked to determine whether the
mere issuance of an arrest warrant within the limitation
period was sufficient to commence a prosecution for
purposes of § 54-193, thereby tolling the limitation
period. In that case, the trial court had rejected the
motion of the defendant, Ronald L. Crawford, to dismiss
the charges as being beyond the statute of limitations
when the arrest warrant for Crawford had been issued
approximately two months after the commission of the
charged offenses—well within the one year limitation
period—but not executed for more than two years after
the offenses were committed and more than one year
after the expiration of the statute of limitations. Id.,
445. This court upheld the trial court’s judgment. See
id., 453.
In doing so, we recognized that, as a general matter,
‘‘[w]hen 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 prosecu-
torial authority has done everything possible within the
period of limitation to evidence and effectuate an intent
to prosecute, the statute of limitations is tolled.’’ (Foot-
note omitted.) Id., 450. We also recognized, however,
‘‘that some limit as to when an arrest warrant must be
executed after its issuance is necessary in order to
prevent the disadvantages to an accused attending stale
prosecutions, a primary purpose of statutes of limita-
tion[s].’’ Id. Accordingly, we determined 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.’’ (Emphasis
added.) Id., 450–51. In reaching that determination, we
expressly declined ‘‘[to] adopt a per se approach as to
what period of time to execute an arrest 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., 451. Because the statute of limitations is an affirma-
tive defense, however, and because Crawford presented
no evidence suggesting that the warrant in that case
was not executed with due diligence, we were unable
to conclude that the delay was unreasonable, and,
accordingly, we upheld the trial court’s judgment. See
id., 451–53.
In light of the inadequacy of the record in Crawford,
we had no occasion to consider what kind of evidence
a defendant must present to support a statute of limita-
tions defense. Subsequent Appellate Court cases, how-
ever, have considered that question and concluded that,
once a defendant presents evidence of his availability
for arrest during the limitation period, the burden shifts
to the state to present evidence of its due diligence in
executing the warrant. See, e.g., State v. Woodtke, 130
Conn. App. 734, 740, 25 A.3d 699 (2011) (‘‘once a defen-
dant puts forth evidence to suggest that she was not
elusive, was available and was readily approachable,
the burden shifts to the state to prove that the delay in
executing the warrant was not unreasonable’’ [internal
quotation marks omitted]), quoting State v. Soldi, supra,
92 Conn. App. 857.
In contravention to its position before the Appellate
Court, the state argues before this court that Soldi and
Woodtke are incompatible with Crawford because they
eliminate the defendant’s burden of proving the statute
of limitations defense.7 To the contrary, we hold that
this burden shifting framework is a logical and proper
extension of this court’s decision in Crawford. Specifi-
cally, we hold that, once the defendant has demon-
strated his availability for arrest, he has done all that
is required to carry his burden; the burden then shifts
to the state to demonstrate that any period of delay in
executing the warrant was not unreasonable.
As we previously noted, in Crawford, this court had
no reason to explore the extent of Crawford’s burden
in proving the statute of limitations defense. Nothing
that we said in Crawford, however, is inconsistent with
the burden shifting approach that the Appellate Court
later adopted. In Crawford, we simply held that the
statute of limitations is an affirmative defense in Con-
necticut, such that a defendant is required to present
some evidence ‘‘concerning the reason for the delay in
the execution of the warrant . . . .’’ State v. Crawford,
supra, 202 Conn. 451. In that case, neither Crawford
nor the state presented any evidence at all with respect
to this issue—including any evidence of Crawford’s
location during the limitation period. See id., 445–46.
The subsequent cases of the Appellate Court, however,
as well as the present case, stand in contrast.8 When a
defendant presents evidence that she was ‘‘not elusive,
was available and was readily approachable’’; State v.
Soldi, supra, 92 Conn. App. 857; as the defendant did
in the present case, we agree with the court in Soldi
that she has discharged her burden under Crawford.9
By eliminating one possible reason for delay—the
defendant’s absence or elusiveness—such evidence
manifestly concerns the reason for delay and the dili-
gence of the police in executing the warrant. See, e.g.,
1 A.L.I., Model Penal Code and Commentaries (1985)
§ 1.06, comment, p. 95 (Model Penal Code and Commen-
taries) (‘‘[i]n determining whether delay is unreason-
able, factors affecting the state’s ability to locate the
accused may be taken into account’’); see also State v.
Figueroa, 235 Conn. 145, 178, 665 A.2d 63 (1995) (‘‘if
the defendant puts forward evidence to suggest that
the state reasonably could have executed the warrant
sooner,’’ reasonableness is question of fact for jury);
State v. Ali, 233 Conn. 403, 416, 660 A.2d 337 (1995)
(because police had defendant’s address, ‘‘[t]he jury
could have concluded . . . that . . . the arrest could
have been effectuated far sooner’’).
Our conclusion that a defendant satisfies his burden
by producing evidence of his nonelusiveness and avail-
ability also accords with this court’s observation in
Crawford that, ‘‘[i]f . . . the accused [does] not relo-
cate or take evasive action to avoid apprehension, fail-
ure to execute an arrest warrant for even a short period
of time might be unreasonable and fail to toll the statute
of limitations.’’ State v. Crawford, supra, 202 Conn. 451.
Indeed, our primary reason in that case for concluding
that a prosecution commences with the issuance rather
than the execution of an arrest warrant was to avoid
‘‘reward[ing]’’ an accused, ‘‘absent evidence of a lack
of due diligence on the part of the officer charged with
executing the warrant, for managing to avoid apprehen-
sion to a point in time beyond the period of limitation.’’
Id., 450. In the present case, however, we have no such
concerns because the trial court expressly found that
‘‘the defendant was not elusive, was available in the
area and did not evade at the time service was made,’’
and those findings have not been challenged on appeal.
Once the defendant has presented evidence of his
availability for arrest, it is reasonable and proper that
the burden should then shift to the state to explain why,
notwithstanding the defendant’s availability during the
statutory period, the delay in his arrest was reasonable.
Doing so allocates burdens efficiently by requiring each
party to bring forth evidence uniquely within its knowl-
edge. Such a burden shifting model is also consistent
with the distribution of burdens with respect to other
affirmative defenses in Connecticut, few of which
require a defendant to present affirmative evidence of
matters beyond his personal ken.10 To dispense with
that model in the present case would needlessly impose
a significant burden on the defendant—and the judicial
system—when the state is in a far better position to
determine what efforts were undertaken to ensure the
defendant’s prompt arrest.
This burden shifting scheme also encourages dili-
gence by law enforcement officials in providing timely
notice of charges to defendants. Although we decline
to specify the precise actions that they must undertake
to serve a warrant with due diligence, or the precise
timeline within which they must act, such officials must
present some credible and persuasive factual basis for
inaction when they fail to observe the statute of limita-
tions. This requirement is consistent with the principle
that, when a judicial doctrine, ‘‘for all practical pur-
poses, extends the statute [of limitations] beyond its
stated term,’’ that doctrine ‘‘should be applied in only
limited circumstances . . . .’’11 (Internal quotation
marks omitted.) Toussie v. United States, 397 U.S. 112,
115, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970); see id. (consid-
ering doctrine of continuing offenses). Accordingly,
once a defendant has demonstrated his availability and
nonelusiveness during the statutory period, the state
must then demonstrate the reasonableness of any delay
between the issuance and the service of an arrest war-
rant, at least when service occurs after the expiration
of the limitation period.
The state nonetheless argues that the Appellate Court
correctly determined that some delays in the execution
of an arrest warrant, including the thirty-two day delay
in question, are so brief as to require no justification
on the part of the state. We are not persuaded by
this contention.
In Crawford, as we have previously explained, this
court explicitly declined to ‘‘adopt a per se approach
as to what period of time to execute an arrest warrant
is reasonable,’’ concluding, instead, that the reasonable-
ness determination must be made on a case-by-case
basis in light of the particular facts and circumstances
presented. State v. Crawford, supra, 202 Conn. 451. As
Crawford also made clear, in the absence of any effort
by the defendant to elude the authorities, even a short
period of delay in executing the warrant might be unrea-
sonable if there is no legitimate explanation or justifica-
tion for the delay. Id.
In reaching a contrary conclusion, the Appellate
Court relied on its decision in Kruelski. See State v.
Swebilius, supra, 158 Conn. App. 426–28. In Kruelski,
a warrant was issued for the defendant’s arrest on
August 22, 1994, but was only delivered to an officer
for service, and subsequently executed, on August 25,
1994, one day after the expiration of the one year statute
of limitations. State v. Kruelski, supra, 41 Conn. App.
478. The trial court determined that the prosecution
was barred by the statute of limitations because the
warrant, although issued, had not been ‘‘delivered’’ to
a proper officer for service within the limitation period.
Id., 479. The Appellate Court reversed the trial court’s
dismissal of the case; id., 488; concluding that the point
at which a warrant is delivered to an officer for service
is irrelevant under Crawford, which requires only that
the period between issuance and execution of the war-
rant not be unreasonable. See id., 485–87. The court then
concluded, ‘‘as a matter of law,’’ and with no additional
analysis, ‘‘that [the] one day delay was not an unreason-
able delay vitiating the tolling of the statute of limita-
tions.’’ Id., 487. In light of this language, the Appellate
Court in the present case concluded that some delays
can be so short that they require no justification on
the part of the state. We disagree. To the extent that
Kruelski relies on a per se exception to the statute of
limitations for short periods of delay,12 it is inconsistent
with this court’s conclusion in Crawford and is
hereby overruled.13
Other cases applying Crawford provide similarly little
support for the Appellate Court’s conclusion that brief
delays may be reasonable simply because they are short
in duration. It is true that the periods of delay consid-
ered in most Connecticut cases have been significantly
longer than thirty-two days.14 Such statistics, however,
have limited value in the present context because when
lengthy delays were found to be reasonable in those
cases, additional facts, aside from the length of the
delay alone, supported that conclusion. See, e.g., State
v. Derks, 155 Conn. App. 87, 89–90, 95, 108 A.3d 1157
(delay of nearly twelve years reasonable where defen-
dant moved out of state), cert. denied, 315 Conn. 930,
110 A.3d 432 (2015). Indeed, typically, the defendant’s
evasive actions have been a significant or dispositive
reason for the delay. See footnote 14 of this opinion.
Consequently, these cases do not require us to conclude
that shorter periods of delay are necessarily reasonable
once a defendant has established his availability for
arrest.
Finally, we agree with the defendant that a rule mak-
ing some delays reasonable without any showing of due
diligence is inconsistent with the purposes of statutes
of limitations. As we have observed, such statutes serve
several functions, among them ‘‘(1) prevent[ing] the
unexpected enforcement of stale and fraudulent claims
by allowing persons after the lapse of a reasonable
time, to plan their affairs with a reasonable degree of
certainty, free from the disruptive burden of protracted
and unknown potential liability, and (2) . . . aid[ing]
in the search for truth that may be impaired by the
loss of evidence, whether by death or disappearance
of witnesses, fading memories, disappearance of docu-
ments or otherwise.’’ (Internal quotation marks omit-
ted.) St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800,
809–10, 12 A.3d 852 (2011); see also Model Penal Code
and Commentaries, supra, § 1.06, comment, p. 86. It is
precisely because of these concerns that we require
statutes of limitations to be strictly construed in favor
of the accused. See, e.g., State v. Whiteman, 204 Conn.
98, 103, 526 A.2d 869 (1987). Thus, although the precise
length of any statutory limitation period is necessarily
somewhat arbitrary, such statutes nevertheless reflect
the will of the legislature that, at least in the absence
of special or compelling circumstances, the limitation
period shall serve as a firm bar to prosecution. See,
e.g., id., 100 (prosecution for sexual assault was barred
when warrant was issued ten days after expiration of
statute of limitations). It is also well established that
statutes of limitations are not primarily concerned with
demonstrable prejudice.15 See State v. Woodtke, supra,
130 Conn. App. 740. Instead, after the passage of the
specified period of time, evidence of prejudice becomes
less important than the virtues of predictability, repose,
and societal stability. See, e.g., United States v. Marion,
404 U.S. 307, 322, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971)
(‘‘[S]tatutes [of limitations] represent legislative assess-
ments of relative interests of the [s]tate and the defen-
dant in administering and receiving justice; they are
made for the repose of society and the protection of
those who may [during the limitation] . . . have lost
their means of [defense]. . . . These statutes provide
predictability by specifying a limit beyond which there
is an irrebuttable presumption that a defendant’s right
to a fair trial would be prejudiced.’’ [Citation omitted;
internal quotation marks omitted.]); see also C. Cal-
lahan, ‘‘Statutes of Limitation—Background,’’ 16 Ohio
St. L.J. 130, 137 (1955) (‘‘the social interest in individual
stability is the purpose [that] most nearly accords with
the apparent scope of the statutes’’ [footnote omitted]).
Accordingly, we agree with the drafters of § 1.06 (5)
of the Model Penal Code16 that ‘‘[i]t is undesirable . . .
to toll the statute of limitations in instances [in which]
the warrant is issued but no effort is made to arrest a
defendant whose whereabouts are known.’’ Model
Penal Code and Commentaries, supra, § 1.06, comment,
p. 95. The policies underlying statutes of limitations are
best served when exceptions are interpreted narrowly
in favor of the accused and the state has a strong incen-
tive to ensure that a defendant is provided timely notice
of charges.
To be sure, our decision in the present case is not
intended to impose an undue burden on the state. We
have concluded merely that, if the defendant can dem-
onstrate his availability during the statutory period, the
state must make some effort to serve the arrest warrant
before the relevant statute of limitations expires, or to
offer some evidence explaining why its failure to do so
was reasonable under the circumstances. Indeed, in
cases involving relatively brief delays, evidence of a
legitimate need to prioritize competing public safety
responsibilities may well be sufficient to demonstrate
compliance with the dictates of Crawford.17 That fact
sensitive determination, however, is a matter properly
within the reasoned judgment of the fact finder.
In the present case, the trial court relied solely on
the length of the delay in ruling in the state’s favor. As
we have explained; see footnote 5 of this opinion; in
doing so, the trial court effectively applied an incorrect
legal standard. Because the standard employed by the
trial court was incorrect, the state had no need to
adduce evidence justifying the delay. Accordingly, on
remand, the state must be afforded the opportunity to
demonstrate that it made reasonable efforts to execute
the warrant before the expiration of the statute of limita-
tions or to explain why its failure to do so was reason-
able under the circumstances.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for further proceedings according
to law.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Espinosa and Robinson. Thereafter, Justice Zarella retired
from the court. Although Justice Espinosa was not present at oral argument,
she has read the briefs and appendices, and has listened to a recording of
oral argument prior to participating in this decision.
1
The applicable statute of limitations is General Statutes (Rev. to 2007)
§ 54-193 (b), which provides in relevant part: ‘‘No person may be prosecuted
for any offense, except a capital felony, a class A felony or a violation of
section 53a-54d or 53a-169, for which the punishment is or may be imprison-
ment in excess of one year, except within five years next after the offense
has been committed. . . .’’
2
The arrest warrant states that 119 images and 30 video recordings
appearing to depict child pornography were recovered from the defendant’s
storage media.
3
The trial court found that counsel for the defendant learned of the
arrest warrant, by telephone, from the police on May 31, 2013. The hearing
testimony is less clear about whether it was counsel or the defendant himself
who initiated contact with the police, and about when the defendant first
became aware of the warrant. As the Appellate Court noted, however, it is
clear that there was some contact between the defendant and the police
after the statute of limitations had expired but prior to the execution of the
arrest warrant. See State v. Swebilius, supra, 158 Conn. App. 427 n.9.
4
The trial court and, thereafter, the Appellate Court calculated the delay
in the execution of the warrant in the present case as totaling thirty-one
days. The parties, however, agree that the delay was thirty-two days. We
agree with the parties and therefore treat the delay as thirty-two days.
5
While recognizing that a per se approach to reasonableness is improper
under Crawford, the trial court’s ruling, as reflected in its memorandum of
decision, is predicated solely on the length of time that had elapsed. Although
the state defends the trial court’s decision as a matter of ‘‘basic common
sense,’’ we do not believe that simply citing a period of time and stating
that ‘‘common sense’’ makes that period of time reasonable can, without
more, render the trial court’s determination one of fact. Thus, whether the
trial court labeled this a per se rule or a matter of common sense, or
something else entirely, is simply immaterial; it was essentially a legal,
rather than factual, determination. In other words, the trial court effectively
determined that the delay was reasonable as a matter of law, solely on the
basis of the length of the delay and irrespective of any other facts.
6
In reviewing a motion to dismiss, appellate courts exercise plenary
review over the trial court’s ultimate legal conclusions, even as the facts
underlying the decision are reviewed only for clear error. See, e.g., State v.
Bonner, 290 Conn. 468, 477–78, 964 A.2d 73 (2009). Thus, because the trial
court effectively based its decision on the legal conclusion that a thirty-two
day delay in the execution of an arrest warrant is sufficiently brief as to be
per se reasonable under Crawford, we review its decision as a question of
law over which we exercise de novo review.
7
The state, in its Appellate Court brief in the present case, conceded that,
‘‘under circumstances [in which] the defendant has shown himself not to
have been elusive and/or [when] it would not have been particularly difficult
to locate him and [to] serve the arrest warrant, the burden to prove that
the arrest warrant was executed during a reasonable period of time shifts
to the state.’’ (Emphasis added.) State v. Swebilius, Conn. Appellate Court
Briefs & Appendices, April Term, 2015, State’s Brief p. 22. The first case
the state cited in support of that proposition was Crawford. Id.
8
We note that the cases since Crawford that have considered the distribu-
tion of burdens in relation to § 54-193 (b) have been nearly uniform in
placing the burden on the state to present evidence of due diligence. See,
e.g., Roger B. v. Commissioner of Correction, 157 Conn. App. 265, 271–72,
279–80, 116 A.3d 343 (2015) (when petitioner claimed ineffective assistance
of counsel on basis of his attorney’s failure to raise statute of limitations
defense, burden shifted to respondent to prove that delay was not unreason-
able once petitioner demonstrated that he was available for arrest); State
v. Derks, 155 Conn. App. 87, 89–90, 94, 108 A.3d 1157 (burden of proof never
shifted to state because defendant absconded to Colorado and lived there
for more than twelve years between issuance and execution of warrant),
cert. denied, 315 Conn. 930, 110 A.3d 432 (2015); State v. Woodtke, supra,
130 Conn. App. 741, 744–45 (state failed to carry burden when it did not
diligently search for defendant); Gonzalez v. Commissioner of Correction,
122 Conn. App. 271, 285–86, 999 A.2d 781 (burden of proof never shifted to
state because petitioner had relocated to Puerto Rico), cert. denied, 298
Conn. 913, 4 A.3d 831 (2010); State v. Kader, Superior Court, judicial district
of New Haven, Docket No. N23N-MV-13-081829-S (April 26, 2013) (55 Conn.
L. Rptr. 925, 925–26) (delay of nearly fifteen months in serving arrest warrant
was unreasonable when defendant lived openly and continuously at Connect-
icut residence, police made no attempt to serve warrant, and ‘‘state could
offer no compelling reason’’ for delay); State v. Gauthier, Superior Court,
judicial district of New Haven, Docket No. N23N-MV-11-0074499-S (Septem-
ber 11, 2012) (because defendant ‘‘did nothing to evade arrest,’’ burden
shifted to state ‘‘to show whether the delay was reasonable or not’’); State
v. Saez, Superior Court, judicial district of New Haven, Docket No. MV-
08-0046495-S (August 28, 2009) (acknowledging vitality of burden shifting
regime); but see State v. Suarez, Superior Court, judicial district of New
London, Docket No. MV-99-0639258-S (November 23, 1999) (25 Conn. L.
Rptr. 647, 648) (‘‘the [d]efendant did not establish by a preponderance of
the evidence that the warrant had been unreasonably delayed’’ because he
‘‘did not prove that the state police did not make attempts to serve the
warrant’’). In light of this history, there is little merit in the state’s argument
that the burden shifting framework of the Appellate Court’s cases threatens
to upend the well established holding of Crawford. Rather, the interests of
stability, continuity, and judicial efficiency promoted by the principle of
stare decisis; see, e.g., Conway v. Wilton, 238 Conn. 653, 659, 680 A.2d 242
(1996); militate in favor of recognizing that Soldi and Woodtke have long
been the de facto rule of law in Connecticut.
9
General Statutes § 53a-12 (b), which defines affirmative defenses, is
instructive. Section 53a-12 (b), which provides that ‘‘[w]hen a defense
declared to be an affirmative defense is raised at a trial, the defendant shall
have the burden of establishing such defense by a preponderance of the
evidence,’’ was incorporated into our Penal Code in 1969 ‘‘largely’’ on the
basis of the New York Revised Penal Law, and the relevant statutes of
New York and Connecticut are nearly identical. Commission to Revise the
Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-12
(West 2012) comment, p. 429. Furthermore, like Connecticut, New York
considers the statute of limitations to be an affirmative defense that ‘‘must
be pleaded and proved by the party invoking it . . . .’’ (Citation omitted.)
Paladino v. Time Warner Cable, 16 A.D. 3d 646, 647, 793 N.Y.S.2d
63 (2005).
Yet, New York cases require only that a defendant allege the expiration
of the statutorily prescribed period in order to establish a prima facie defense
under the statute of limitations, at which point the burden shifts to the state
to show that the statute was tolled. See, e.g., People v. Burroughs, 108 Ohio App.
Div. 3d 1103, 1104, 968 N.Y.S.2d 773 (‘‘[W]hen the crimes were committed,
the statute of limitations for the charged offenses was five years . . . .
Because [the defendant] was not charged until more than seven years later,
[the] defendant raised a facially viable statute of limitations defense, and
the burden thus shifted to the [government] to prove beyond a reasonable
doubt that the statute of limitations was tolled or otherwise inapplicable
. . . .’’ [Citations omitted.]), appeal denied, 22 N.Y.3d 995, 3 N.E.3d 1169,
981 N.Y.S.2d 1 (2013).
The cases cited in Crawford for the proposition that the statute of limita-
tions is an affirmative defense do not contradict this lineage or otherwise
undermine the distribution of burdens endorsed by the New York courts.
Those cases merely acknowledge that, as an affirmative defense, the statute
of limitations places some burden of proof on the defendant. They say
nothing about the extent of that burden. See, e.g., State v. Coleman, 202
Conn. 86, 90, 519 A.2d 1201 (1987) (addressing whether statute of limitations
defense ‘‘ ‘terminates a separate and distinct proceeding’ ’’ from underlying
criminal action or whether it ‘‘confers . . . a statutory right not to be prose-
cuted’’ for final judgment purposes under State v. Curcio, 191 Conn. 27, 31,
463 A.2d 566 [1983]); State v. Littlejohn, 199 Conn. 631, 640, 508 A.2d 1376
(1986) (considering whether ‘‘to treat the statute of limitations as jurisdic-
tional and hence nonwaivable [or] as an affirmative defense and hence
waivable’’); see also United States v. Karlin, 785 F.2d 90, 92–93 (3d Cir. 1986)
(‘‘in criminal cases the statute of limitations does not go to the jurisdiction of
the court but is an affirmative defense that will be considered waived if not
raised . . . before or at trial’’), cert. denied, 480 U.S. 907, 107 S. Ct. 1351,
94 L. Ed. 2d 522 (1987).
10
See, e.g., General Statutes § 53a-13 (a) (affirmative defense to prosecu-
tion if defendant ‘‘lacked substantial capacity . . . either to appreciate the
wrongfulness of his conduct or to control his conduct within the require-
ments of the law’’); General Statutes § 53a-16b (affirmative defense for
coparticipant in firearm offense if defendant was unarmed and ‘‘had no
reasonable ground to believe that any other participant was armed’’); General
Statutes § 53a-67 (a) (affirmative defense for sexual offenses involving men-
tally incapacitated or physically helpless victim, or victim impaired because
of mental disability or disease, if defendant did not know that victim suffered
from such condition); General Statutes § 53a-67 (b) (affirmative defense for
certain sex offenses if defendant and victim lived together by mutual consent
in relationship of cohabitation); General Statutes § 53a-110 (3) (affirmative
defense to criminal trespass if defendant reasonably believed he would have
been licensed to enter or remain on premises); General Statutes § 53a-134
(a) (affirmative defense to first degree robbery if weapon used or displayed
in robbery was not weapon from which shot could be discharged); General
Statutes § 53a-190 (b) (affirmative defense to charge of bigamy if defendant
reasonably believed that prior spouse was dead or did not know that other
person was legally married); General Statutes § 53a-196g (affirmative
defense to charge of possessing child pornography if defendant possessed
fewer than three pornographic images, did not knowingly take steps to
possess such images, and promptly destroyed them or turned them over to
authorities upon discovery); but see General Statutes § 53a-104 (affirmative
defense to burglary if building was abandoned); General Statutes § 53a-110
(1) (affirmative defense to criminal trespass if building was abandoned).
11
At oral argument, the state contended that the rule in Crawford should
be viewed as recognizing an exception to a general rule that prosecution
commences upon the issuance of an arrest warrant, and because such an
exception benefits the defendant, it should be the defendant’s burden to
prove that the delay was unreasonable. It is unlikely, however, that the
legislature ever intended to allow the statute of limitations to be tolled
simply by the issuance of a warrant without further efforts to apprise the
defendant of the warrant’s existence. Doing so would contravene the policy
of notice fundamental to statutes of limitations. See, e.g., State v. Almeda,
211 Conn. 441, 446, 560 A.2d 389 (1989). Crawford is more properly viewed
as an exception to the rule that a defendant must have notice of prosecution
within the limitation period. In that sense, it benefits the state by extending
the period of limitation beyond its stated term and must be applied judi-
ciously.
12
It may be, as the defendant argues, that Kruelski intended to incorporate
certain facts presented in the dissent in that case, such that the three day
delay was reasonable not merely because of the brevity of the delay but
also because the warrant was executed on the same day that it was delivered
to the officer responsible for its execution. Undoubtedly, most courts would
find such facts to be compelling evidence of reasonableness. Indeed, we
acknowledge that, as a general matter, the burden of justifying a brief delay
of the sort at issue in Kruelski is not a weighty one. But the court in that
case provided no analysis supporting its conclusion, and nothing in the
decision in that case indicates that the majority based its decision on any
facts other than the length of the delay.
13
More in line with the approach that we adopted in Crawford is the
approach that the Kansas Court of Appeals took in State v. Divers, Kansas
Court of Appeals, Docket No. 106312 (October 5, 2012), in which the court
considered a twenty-four day delay between issuance and execution, includ-
ing five days after the statute of limitations had expired. The court found
that the delay was not unreasonable because ‘‘the [s]tate was much more
diligent’’ in that case than in other Kansas cases, entering the warrant
into the National Crime Information Center database and contacting the
defendant’s relatives and neighbors in an attempt to serve the warrant. Id.
Thus, although the court ultimately decided that the twenty-four day delay
was reasonable, it did so only after considering the diligence of the police.
Id.; see also State v. Gauthier, Superior Court, judicial district of New Haven,
Docket No. N23N-MV-11-0074499-S (September 11, 2012) (delay of forty-
nine days after statute of limitations expired was not unreasonable because
officers ‘‘maintained diligent attention to [the] case’’ and attempted to serve
warrant as soon as officer was aware it had been signed).
14
Aside from Kruelski and State v. Suarez, Superior Court, judicial district
of New London, Docket No. MV-99-0639258-S (November 23, 1999) (25 Conn.
L. Rptr. 647, 647–48) (reviewing delay of more than five months but not
considering whether it was per se reasonable), the shortest overall delay
from issuance of an arrest warrant to its execution was approximately
thirteen months, including forty-nine days after the expiration of the statute
of limitations. See State v. Gauthier, Superior Court, judicial district of New
Haven, Docket No. N23N-MV-11-0074499-S (September 11, 2012). But delays
that have been deemed to be reasonable have been as long as fourteen
years. See State v. Henriquez, Superior Court, judicial district of New Haven,
Docket Nos. CR-09-96308 and CR-09-96309 (February 4, 2011) (delay between
1995 and 2009 due to defendant’s own evasive actions in leaving state and
living under assumed name). Although other jurisdictions with similar laws
have found overall delays of between seventy-five and eighty-four days to
be unreasonable; see, e.g., State v. Long, 276 Kan. 297, 302–304, 75 P.3d
1217 (2003) (state failed to create record justifying seventy-five delay) State
v. Dozal, 31 Kan. App. 2d 344, 345, 348, 65 P.3d 217 (2003) (in case involving
eighty-four day delay, mailing letter to defendant notifying him of arrest
warrant and requesting that he travel to Sheriff’s Department to be arrested
‘‘cannot be held to be a bona fide effort to serve a warrant’’); in Connecticut,
the shortest overall delay found to be unreasonable lasted more than one
year. See State v. Kader, Superior Court, judicial district of New Haven,
Docket No. N23N-MV-13-081829-S (April 26, 2013) (55 Conn. L. Rptr. 925,
926) (delay of fifteen months, including almost three months after expiration
of statute of limitations).
15
In this case, there is no indication that the delay in the execution of
the warrant was demonstrably prejudicial to the defendant. Indeed, at trial,
the defendant declined to pursue a due process claim because he felt that
‘‘ ‘having investigated, [he did not] have any evidence to put on’ ’’ regard-
ing prejudice.
16
Model Penal Code § 1.06 (5), the provision that this court adopted in
Crawford, provides: ‘‘A prosecution is commenced either when an indict-
ment is found [or an information filed] or when a warrant or other process
is issued, provided that such warrant or process is executed without unrea-
sonable delay.’’ Model Penal Code and Commentaries, supra, § 1.06 (5), p. 84.
17
Significantly, thousands of new warrants are issued each month in
Connecticut, and the execution of those warrants is only one of many
competing demands placed on police departments throughout the state.
See, e.g., Judicial Branch, State of Connecticut, Statistics/Reports, Arrest
Warrants, available at http://jud.ct.gov/statistics/FTA_VOPS3rdquarter2016-
2017.pdf (data regarding failure to appear, violation of probation, and order
to incarcerate warrants); see also Luurtsema v. Commissioner of Correc-
tion, 299 Conn. 740, 769 n.28, 12 A.3d 817 (2011) (court may take notice of
government statistics). Properly contextualized, such statistics may well
provide evidence of reasonableness in a particular case. At the same time,
we agree with the Appellate Court that ‘‘[t]he mere fact that a police depart-
ment is ‘a very busy urban police department’ is not enough for it to avoid
its obligation to serve the warrants in a timely manner.’’ State v. Woodtke,
supra, 130 Conn. App. 744.