author: HULL, J. HEIMAN, J.,

text:
    STATE OF CONNECTICUT v. EDWARD KRUELSKI, JR.
    (14813)
    Dupont, C. J., and Heiman and Hull, Js
    Argued January 18
    officially released May 28, 1996

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (state).

      Paul D. Eschuk, assistant public defender, for the appellee (defendant).
   HULL, J.

The state appeals from a judgment of acquittal on the charge of offering to make home improvements without being registered in violation of General Statutes § 20-427 (b) (5). Such a violation is designated a class B misdemeanor; General Statutes § 20-427 (c) (1); and carries a penalty of imprisonment for not more than one year. General Statutes § 53a-26. The state claims on appeal that (1) the issuance of the warrant for the arrest of the defendant and its service on the defendant, on the facts of this case, tolled the statute of limitations, and (2) a second trial of the defendant would not be barred by the principles of double jeopardy.

The factual findings of the court, which are not challenged in this appeal, are as follows. The work offered to be done comes within the definition of the Home Improvement Act, General Statutes § 20-419 et seq. The defendant did not have a certificate of registration. The state introduced sufficient evidence to sustain a conviction for violation of § 20-427 (b) (5). The offer prohibited by the statute was made on August 24,1993. In addition, the parties agree that a warrant was issued on August 22, 1994, although the warrant was not served and the defendant was not arrested until August 25, 1994, one day after the statute of limitations ran.

On the first issue, we reverse the judgment of the trial court and remand the case to the trial court for further proceedings. Because the judgment is set aside, we need not reach the state’s second issue.

I

The state claims that the statute of limitations was satisfied because the warrant was issued within one year of the offer to perform a home improvement without a certificate as prohibited by the statute, and that it was not necessary for the warrant to be delivered to a proper officer for service or actually served within the one year period, provided that it was executed without unreasonable delay. General Statutes § 54-193, entitled “Limitation of prosecutions for various offenses,” provides in relevant part: “(b) No person maybe prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d, except within one year next after the offense has been committed. ...” Thus, since the crime charged here carries a penalty of imprisonment of not more than one year, the applicable statute of limitations is one year after the offense was committed.

The trial court determined that the defendant’s motion for acquittal raised the question of the meaning of the word “prosecuted” in § 54-193 (b). To answer this question, the court relied on State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987), and concluded that both issuance of a warrant and delivery to a proper-officer for service are necessary to toll the statute of limitations. The court then considered the evidence concerning delivery of the warrant to the Ridgefield police. Because the offer prohibited by the statute occurred on August 24, 1993, and the warrant was not delivered to a proper officer for service until August 25, 1994, one day after the statute expired, the court concluded that the defense had met its burden on its special defense of the statute of limitations. The court did not consider the date of execution of the warrant in its analysis, but relied solely on the date of delivery of the warrant to a proper officer. We disagree with the court’s reading of State v. Crawford, supra, 443.

A statute of limitations is the primary safeguard by which a citizen is protected from stale prosecutions. United States v. Marion, 404 U.S. 307, 322, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971); United States v. Ewell, 383 U.S. 116, 122, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966); State v. Baker, 164 Conn. 295, 296, 320 A.2d 801 (1973); State v. Cordova, 38 Conn. Sup. 377, 379, 448 A.2d 848 (1982). “The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.” Toussie v. United States, 397 U.S. 112, 114-15, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970); State v. Cordova, supra, 379-80. In upholding this safeguard, Connecticut courts consistently have considered only two events when ruling on whether a defendant may successfully raise the statute of limitations as an affirmative defense: (1) the issuance of the warrant by a judicial authority; and (2) the execution or service of the warrant on the accused.

The first Connecticut case concerning a criminal statute of limitations is Newell v. State, 2 Conn. 38 (1816). The information against Newell alleged that he committed an offense in September, 1814. Id. “The information was exhibited to a justice of the peace, and a warrant issued, in August, 1815. In May, 1816, the defendant was arrested, examined, and a recognizance taken for his appearance at the next superior court. At the superior court, the defendant pleaded, that the information was not exhibited within” the one year limitation. (Emphasis in original.) Id. The pertinent statute provided: “ ‘[T]hat no person shall be indicted, prosecuted, informed against, complained of, or compelled to answer, before any court, assistant, or justice of the peace, within this state, for the breach of any penal law, or for other crime or misdemeanor, by reason whereof a forfeiture belongs to any public treasury, unless the indictment, presentment, information, or complaint, be made and exhibited within one year after the offence is committed.’ ” Id., 39.

The defense argued that the case could not be considered exhibited until it came before the court having jurisdiction. In that opinion, notable for its brevity, as well as its directness, Chief Justice Swift stated: “The question is, what is intended by exhibiting a complaint, in criminal cases. The presentment of the complaint, signed by some proper informing officer, to a court or public officer, who has authority to receive the same, and to issue a warrant to apprehend the offender, and bring him to trial, must be a compliance with the law.” (Emphasis in original.) Id., 40. Newell, however, is not directly on point since it rested on the meaning of “exhibited” rather than on the meaning of “prosecuted,” as in the present case. It is relevant, nevertheless, by analogy, for the court’s unwillingness to extend the elements necessary to toll the statute of limitations beyond the bright line event of the issuance of the information by an appropriate officer.

We next fast-forward to State v. Cordova, supra, 38 Conn. Sup. 377-78, in which the Appellate Session of the Superior Court considered a prior version of General Statutes (Rev. to 1979) § 54-193 which, although not identical to the statute in this case, contained the relevant language concerning “prosecution” for an offense involved in this case. The defendant was accused of failure, on July 1, 1979, to grant the right-of-way to an emergency vehicle in violation of General Statutes § 14-283. Id. An arrest warrant was signed by a judge of the Superior Court on September 27, 1979, and the defendant was arrested on March 9, 1981. Id., 378. The defendant moved to have the charges dismissed on the ground that he was being prosecuted beyond the one year limitation prescribed by § 54-193. The motion was denied, and the defendant was convicted, from which conviction he appealed. Id.

The Appellate Session stated that “[t]he first issue presented involves the meaning of the word ‘prosecuted’ as it is used in § 54-193; specifically, whether an arrest warrant that is issued within the one-year limitation period governing misdemeanors, but which is executed over one year from the date of the alleged offense, violates this statute of limitations.” Id. The state argued that “the mere issuance of a warrant commences prosecution and tolls the limitation period.” Id. The defendant contended that “the execution of the arrest warrant commences prosecution for the purpose of satisfying the statute of limitations.” Id. The Cordova court stated that “[s]ince § 54-193 does not define when prosecution commences, it must be analyzed in the context of the policies underlying the limitations statutes.” Id., 379. The court reasoned that the primary protection against an accused’s “being prosecuted for stale criminal charges ... is provided by the statute of limitations.” Id. The court further noted that the statute protects against only “ ‘pre-indictment’ delay.” Id., 380. “ ‘[P]ost-indictment’ delay is protected by the constitutional right to a speedy trial.” Id. The court said that the issue before it was “to determine which safeguard is applicable when the arrest is by warrant.” Id.

In considering the issue, the court stated that “[t]he general rule is that When an arrest warrant is used to charge the commission of a criminal offense, the mere issuance of the warrant commences prosecution. 1 Wharton, [Criminal Law and Procedure (Anderson 1957) § 184, p. 426]; 21 Am. Jur. 2d, Criminal Law § 410; 22 C.J.S. 607-608, Criminal Law § 234.” State v. Cordova, supra, 38 Conn. Sup. 380-81. The court concluded that “by issuing the arrest warrant, with the attached information, the state has filed charges against the defendant that commenced the prosecution and thereby tolled the statute of limitations. Since the asserted delay here occurred after the warrant was issued, this is a case of ‘post-indictment’ or ‘post-charge’ delay that must be measured under principles of speedy trial rather than statute of limitations.” Id., 381.

We next consider State v. Crawford, supra, 202 Conn. 443, on which the trial court in the present case claimed to rely in finding “delivery” of the warrant to be an essential element in the prosecution of an offense for purposes of § 54-193. The defendant in Crawford was charged with two misdemeanors arising out of the same incident, which occurred on June 5, 1983. An arrest warrant was issued for the defendant on July 22, 1983. The defendant was not arrested until July 29, 1985. The Supreme Court stated that “[t]he only issue raised by this appeal is whether the issuance of the arrest warrant on July 22, 1983, within the period of limitation provided by General Statutes § 54-193 (b), tolled the statute.” State v. Crawford, supra, 447. The court agreed with the state’s argument “that the defendant was ‘prosecuted’ for the purposes of the statute of limitations when a judicial officer, presented with an affidavit and a short form information, which incorporated an application for an arrest warrant and an arrest warrant, found probable cause and issued the arrest warrant . . . .” Id.

The court further expatiated on the controlling law as follows: “Although the purpose of a statute of limitations is to ensure a timely commencement of prosecution, jurisdictions differ on what act will suffice to show such commencement. In jurisdictions where legislation requires the finding of an indictment or the filing of an information as the first step in a criminal case, the ‘prosecution’ is deemed commenced by either of these acts, and the running of the statute of limitations is thereby tolled. 2 W. LaFave & J. Israel, Criminal Procedure § 18.5; see 1 F. Wharton, Criminal Law (14th Ed.) § 90. In the absence of such legislation, however, it is generally held that the prosecution is commenced, and the statute tolled, at the time a complaint is laid before a magistrate and a warrant of arrest is issued. State v. Chacon, 479 So. 2d 229, 230 (Fla. App. 1985); McMorris v. State, 277 Md. 62, 67-68, 355 A.2d 438 (1975); State v. Mars, 39 Md. App. 436, 438, 386 A.2d 1234 (1978); see Akers v. State, 370 So. 2d 81, 83 (Fla. App. 1979); State v. White, 76 Kan. 654, 656, 92 P. 829 (1907); 2 W. LaFave & J. Israel, supra [§ 18.5]; 21 Am. Jur. 2d, Criminal Law § 230. The American Law Institute model penal code is in accord. It provides that ‘[a] prosecution is commenced either when an indictment is found [or an information filed] or when a warrant or other process is issued, provided that such warrant or process is executed without unreasonable delay.’ [1 A.L.I., Model Penal Code and Commentaries] (1985) § 1.06 (5); see State v. Barnes, 66 Or. App. 896, 676 P.2d 344 (1984); Commonwealth v. Patterson, 236 Pa. Super. 131, 344 A.2d 710 (1975).” State v. Crawford, supra, 202 Conn. 447-48.

The court specifically “adopt[ed], what we think is the sensible approach of the model penal code, and conclude[d] 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. We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable.” (Citation omitted.) Id., 450-51. Thus, issuance of the warrant and its execution are the only two events we may consider in assessing a statute of limitations defense. Indeed, issuance and execution or service are the only two events we need to consider since any question regarding delay in delivery will necessarily be subsumed into an inquiry into whether the warrant was executed without unreasonable delay.

As in the preceding cases, State v. Saraceno, 15 Conn. App. 222, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988), did not involve whether the delivery to a proper officer tolled the statute of limitations. Saraceno cited Crawford, however, for the proposition that “[although General Statutes § 54-193 (b) provides that ‘[n]o person may be prosecuted for any offense . . . for which punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed,’ our Supreme Court has held that the issuance of an arrest warrant tolls the running of the statute of limitations for a crime charged. State v. Crawford, [supra, 202 Conn. 447].” State v. Saraceno, supra, 239.

In State v. Ali, 233 Conn. 403, 660 A.2d 337 (1995), the court applied the model penal code two level inquiry. There the defendant claimed that the trial court improperly failed to instruct the jury as to his affirmative defense that the prosecution on the charge of threatening was commenced beyond the statute of limitations set forth in § 54-193 (b). A warrant for the defendant’s arrest was issued on July 19, 1991. On July 5, 1993, the defendant was arrested in Watertown, New York. Id., 409-10. For various reasons, Connecticut police did not press this warrant and notified the New York authorities to release the defendant. A second warrant was issued on August 19, 1993, and the defendant was arrested on August 23, 1993. The Supreme Court stated: “We disagree with the state that the issuance of the initial warrant unequivocally satisfied the statute of limitations. Moreover, we disagree with the state that the defendant’s departure from the state is dispositive of this issue. Rather, we conclude that the outcome is controlled by State v. Crawford, [supra, 202 Conn. 443], wherein we held that the issuance of an arrest warrant qualifies as a ‘prosecution’ within the meaning of § 54-193 (b) only if the state executes it without unreasonable delay and that, in determining whether the state executed the warrant without unreasonable delay, the fact finder may consider whether the defendant left the jurisdiction and was difficult to apprehend.” State v. Ali, supra, 412. The court then quoted a lengthy passage from Crawford in support of that proposition. Id., 412-16. It is noteworthy that no mention is made of when delivery of the warrant to a proper officer occurred.

The most recent case addressing this issue is State v. Figueroa, 235 Conn. 145, 665 A.2d 63 (1995). In Figueroa, the defendant claimed that the trial court improperly denied his motion to dismiss on the grounds that service or execution of the arrest warrant had been unreasonably delayed and that the prosecution had not been initiated within the applicable statute of limitations. Id., 175. The warrant for the arrest of the defendant was secured in September, 1984, but was not served until 1990 because the defendant was considered a fugitive by the police. The trial court had denied the motion to dismiss, finding that the service of the arrest warrant had not been unreasonably delayed. Id., 176-77. In overruling the defendant’s claim, the Supreme Court cited the controlling law. “ ‘The issuance of an arrest warrant is sufficient “prosecution” to satisfy the statute of limitations only if the warrant is executed with due diligence.’ State v. Ali, [supra, 233 Conn. 416]; see State v. Crawford, supra, 202 Conn. 447. ‘ “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.” ’ State v. Ali, supra, 415, quoting State v. Crawford, supra, 451. Thus, if the defendant puts forward evidence to suggest that the state reasonably could have executed the warrant sooner, ‘the issue of whether the state executed the warrant within a reasonable period of time [is] properly a question of fact for the jury.’ State v. Ali, supra, 416.” State v. Figueroa, supra, 178.

The defendant, in his brief and at oral argument, and the dissent claim that the holding of State v. Crawford, supra, 202 Conn. 452, is that delivery to a proper officer for service is the triggering event in determining whether a statute of limitations has been tolled. We disagree with the defendant and the dissent. Our conclusion is based on the clear language of the concluding paragraph of Crawford-. “The timely issuance of [an] arrest warrant toll[s] the statute of limitations in the absence of an evidentiary showing of unreasonable delay in its service upon [a] defendant. [1 A.L.I., Model Penal Code and Commentaries, supra, § 1.06 (5)].” State v. Crawford, supra, 452.

Our case law has consistently followed the model penal code. The model penal code provides that a prosecution begins when an arrest warrant is issued, provided it is executed or served without unreasonable delay. Although the trial court in its memorandum of decision did not find the date of issuance of the warrant, the parties agree that it was issued on August 22, 1994, within the one year statute. The court found that the warrant was served or executed on August 25, 1994, one day after the statute ran. We conclude, as a matter of law, that this one day delay was not an unreasonable delay vitiating the tolling of the statute of limitations.

II

The state’s second claim is that a second trial is not barred by the double jeopardy clause of the fifth amendment to the constitution of the United States, and the due process provisions of article first, § 8, of the constitution of Connecticut. We need not decide this issue because the defendant has not twice been put to trial on the same offense. On remand, the state may nolle the charge or the defendant may plead guilty. It is not known whether the defendant will face the pending charge again. Double jeopardy is a nonissue in this case, an appellate chimera.

The judgment granting the motion for acquittal is reversed and the case is remanded for further proceedings.

In this opinion DUPONT, C. J., concurred.

HEIMAN, J.,

dissenting. I believe that the result reached by the majority is incorrect. Accordingly, I respectfully dissent.

In my opinion, the trial court properly determined that the one year statute of limitations had expired prior to the commencement of the defendant’s “prosecution.” See General Statutes § 54-193 (b). I base my conclusion on State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987). On the basis of Crawford, I believe that the judgment of acquittal should be affirmed.

The following undisputed facts are relevant to my conclusion. The defendant was charged with offering to make home improvements without being registered in violation of General Statutes § 20-427 (b) (5). The information charging the defendant was signed by an assistant state’s attorney and alleged that the defendant had committed the violation in Ridgefield on August 24, 1993. On August 22, 1994, almost one year after the alleged violation, a judge of the Superior Court issued a warrant for the defendant’s arrest. There is no written record of when the arrest warrant was received by the Ridgefield police department for service on the defendant. The department does not have a system in place for determining the time that they receive arrest warrants. Detective Michael Gates was the Ridgefield police officer responsible for serving arrest warrants such as the one here. Gates worked on August 24,1994, from 4 p.m. until midnight. As of the end of his shift, at midnight, August 24, 1994, Gates had not received the arrest warrant for the defendant. At that point, one year had elapsed since the defendant had allegedly violated the statute in question. Gates received the arrest warrant at 4 p.m. on August 25,1994, one year and one day after the alleged violation. Gates served the warrant on the defendant and arrested him at 11 p.m. on August 25, 1994.

Pursuant to General Statutes § 54-193 (b), “[n]o person may be prosecuted for any [misdemeanor] . . . except within one year next after the offense has been committed.” See State v. Crawford, supra, 202 Conn. 447. The defendant was charged with committing a class B misdemeanor; General Statutes § 20-427 (c); and therefore had to be “prosecuted” within one year next after the offense had been committed. General Statutes § 54-193 (b). The state alleged that the defendant committed the offense on August 24,1993. Thus, the defendant had to be “prosecuted” by August 24, 1994, in order for the one year statute of limitations to be satisfied. As previously noted, the arrest warrant for the defendant was issued by a judge of the Superior Court on August 22, 1994, but the evidence indicates that the police both received and served the warrant on the defendant on August 25, 1994, more than one year subsequent to the commission of the offense.

The dispositive issues in this case are (1) what is the definition of the term “prosecuted” as used in § 54-193 (b), and (2) given that definition, was the defendant “prosecuted” within one year after the offense had been committed. The majority holds that pursuant to our Supreme Court’s opinion in State v. Crawford, supra, 202 Conn. 447, a “prosecution” under § 54-193 (b) commences when an arrest warrant is issued by a judge of the Superior Court. The majority fails to recognize, however, that according to the text of Crawford, the warrant must also be delivered to a proper officer for service in order for a “prosecution” to be initiated. Id., 450. In fact, the majority fails to address fully or quote the Crawford delivery requirement, stating only that the trial court improperly applied the delivery requirement and that the defendant improperly relied on it. I believe that the delivery requirement set forth in Crawford and discounted by the majority is a legitimate requirement that must be met in order for a “prosecution” under § 54-193 (b) to be commenced. Id., 450; see also State v. Ali, 233 Conn. 403, 414, 660 A.2d 337 (1995); State v. Chacon, 479 So. 2d 229, 230 (Fla. App. 1985); State v. Hickman, 189 So. 2d 254, 258, 260, 261-62 (Fla. App. 1966).

In its analysis in Crawford, the Supreme Court begins by setting forth the language of § 54-193 (b). State v. Crawford, supra, 202 Conn. 447. The court concludes that the statute neither defines “prosecuted” nor reveals at what stage of the prosecution the limitation period becomes tolled. Id. The court explains the purpose of a statute of limitations and sets forth the fact that jurisdictions differ as to what act serves to commence a prosecution and toll a statute of limitations. Id., 447-48. The court asserts that in jurisdictions where legislation mandates the finding of an indictment or the filing of an information, the “prosecution” is considered commenced by either of these acts, and the running of the limitation period is thereby tolled. Id., 448. The court further explains that in jurisdictions without such legislation, the prosecution is commenced and the limitation period tolled by the issuance of an arrest warrant by a magistrate. Id. The court points out that the American Law Institute model penal code embraces both methods of commencing a prosecution for the purpose of tolling a statute of limitations. Id.

Following this introductory portion of its analysis, the court next looks to Connecticut law. Id., 448. The court carefully explains the specific method of commencing a prosecution in Connecticut: “In 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. General Statutes § 54-2a.” (Emphasis added.) Id., 449.

After explaining the initial step required to commence a prosecution in Connecticut, the court does not cease its analysis, but, rather, attaches an important condition to the requirements for commencing a prosecution. The court immediately continues its analysis with the following proposition: “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 authority has done everything possible within the period of limitation to evidence and effectuate an intent to prosecute, the statute of limitations is tolled. See State v. Hickman, [supra, 189 So. 2d 261-62].” (Emphasis added.) State v. Craw ford, supra, 202 Conn. 450. It is clear that the court did not outrightly adopt the model penal code’s rule as to when a prosecution commences, but, instead, the court borrowed from and embellished on the model code’s rule.

Thus, contrary to the majority’s opinion, the Crawford analysis establishes that the mere issuance of an arrest warrant by a judge of the Superior Court is insufficient to commence a prosecution for the purpose of tolling the statute of limitations. In discussing Connecticut law and procedure, the Crawford court appended the condition of “delivery” to the model penal code’s “issuance” requirement. Id., 450. In doing so, the court deliberately cited State v. Hickman, supra, 189 So. 2d 261-62, a Florida appeals court case that stands for the proposition that once the prosecutorial authority has done everything possible within the limitation period to effectuate an intent to prosecute, the statute of limitations is tolled. State v. Crawford, supra, 202 Conn. 450. Hickman also sets forth the rule that a warrant must be signed by a magistrate and delivered to a proper officer for service within the limitation period in order to toll the statute of limitations. State v. Hickman, supra, 258, 260. In addition, State v. Chacon, supra, 479 So. 2d 230, a Florida case cited in Crawford's discussion of the law of other jurisdictions; State v. Crawford, supra, 448; is in accord with Hickman. Our Supreme Court was clearly influenced by the Florida precedent in deciding when a prosecution is commenced for the purpose of tolling a statute of limitations in Connecticut. The court made it clear that the Florida requirements were to be the requirements of Crawford.

The Crawford analysis continues by recognizing that some limit should exist as to when an arrest warrant must be executed by the police. Id., 450. The court recognizes that a warrant “must be executed without unreasonable delay.” Id., 450-51, citing I A.L.I. Model Penal Code and Commentaries (1985) § 1.06 (5). It is here that the court expressly adopts aprovision of the model penal code for the first time, without modification.

The majority’s opinion in this case concludes that Crawford adopts the model code’s “issuance” rule regarding the commencement of a prosecution, does not add the “delivery” requirement to that rule, and embraces the model code’s provision that a warrant must be “executed without unreasonable delay.” This is a conclusion that, in my opinion, is not supported by the text of Crawford. First, Crawford borrowed from and added to the model code and created the two-pronged rule that a prosecution is commenced for the purpose of tolling a statute of limitations when, prior to the expiration of the statute, the arrest warrant is (1) issued by a Superior Court judge and (2) delivered to a proper officer for service. State v. Crawford, supra, 202 Conn. 449-50. Second, Crawford proceeded to adopt the model code’s provision that a warrant must be executed without unreasonable delay. Id., 450-51. Prior to the court’s adoption of the model code’s provision that a warrant must be executed without unreasonable delay, the court had only cited the code in its introduction to the law of other jurisdictions. Id., 448. Following its introduction to the law of other jurisdictions, the court’s next authoritative case citation is to Hickman. Id., 450. The Hickman citation appears in the paragraph of the court’s analysis that holds that a statute of limitations becomes tolled in this state, when prior to the expiration of the statute, the arrest warrant is issued by a judge and delivered to a proper officer for service. Id. After citing Hickman, the court then adopts the model code’s provision that a warrant must be executed without unreasonable delay. Id., 450-51.

Finally, I note that although the delivery requirement has not again been fully explored by this court or our Supreme Court, the requirement has not been abandoned subsequent to Crawford. See State v. Ali, supra, 233 Conn. 414. In Ali, our Supreme Court fully quoted the Crawford analysis, including the delivery requirement. Id., 414.1 see no reason why the Crawford delivery requirement should be abandoned by this court in light of our Supreme Court’s recent recognition of that requirement.

Here, the trial court recognized the rule of Crawford that a prosecution is commenced for the purpose of tolling a statute of limitations when, prior to the expiration of the statute, the arrest warrant is (1) issued by a Superior Court judge and (2) delivered to a proper officer for service. The defendant allegedly committed the crime at issue on August 24, 1993. The crime is subject to a one year statute of limitations, expiring on August 24, 1994. The trial court found that the defendant’s arrest warrant was issued by a Superior Court judge on August 22, 1994, but that the warrant was not delivered to the Ridgefield police department until August 25, 1994, one day after the expiration of the statute of limitations. On the basis of Crawford and on these facts, the trial court found that the statute of limitations had expired prior to the commencement of the defendant’s prosecution. Consequently, the trial court rendered a judgment of acquittal. I agree with the trial court’s interpretation of the law and its finding that the statute of limitations had expired prior to the commencement of the defendant’s prosecution. Thus, in my opinion, the trial court properly rendered a judgment of acquittal. I would therefore affirm the judgment of the trial court.

For the foregoing reasons, I respectfully dissent.

       On May 3, 1995, the trial court granted the defendant’s oral motion for judgment of acquittal on the basis that the state did not institute its prosecution within the period of limitations. On May 12, 1995, the state filed a motion for articulation as to whether the court acquitted the defendant or dismissed the information on the basis of the statute of limitations defense. The record reveals no formal action of the court on the motion for articulation. Because the memorandum of decision concludes, “[t]he motion for a judgment of acquittal is, accordingly, granted,” we treat the matter as an appeal from a judgment of acquittal. The state was granted permission to appeal from the judgment. See State v. Avcollie, 178 Conn. 450, 452, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).

       General Statutes § 20-427 provides in relevant part: “Holder to exhibit and advertise certificate, when. Prohibited acts. Penalties. Certificates not transferable. Expiration. Renewal. Restoration. Building permits, (a) Each person engaged in making home improvements shall (1) exhibit his certificate of registration upon request by any interested party, (2) state in any advertisement the fact that he is registered, and (3) include his registration number in any advertisement.
      “(b) No person shall ... (5) offer to make or make any home improvement without having a current certificate of registration under this chapter .. . .”

       The court noted that “[t]he due process clause of the fifth amendment also protects an accused against oppressive pre-indictment delay. Such a claim, which was not made in [the Cordova case or in the present case], requires a showing that the right to a fair trial has been actually and substantially prejudiced, or that the government intentionally delayed in order to gain an advantage.” State v. Cordova, supra, 38 Conn. Sup. 380 n.3.
      It is also possible that a defendant’s right to a speedy trial might be implicated where there is an inordinate delay between the issuance of a warrant and its execution or delivery. See Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992) (defendant denied right to speedy trial where, due to government’s negligence, his arrest occurred eight and one-half years after he was indicted).

        State v. Crawford, supra, 202 Conn. 443, is the subject of an extensive annotation in 71 A.L.R.4th 543 (1989).

       Because I conclude that the judgment of acquittal should be affirmed, I do not discuss the second issue raised on appeal regarding double jeopardy.

       A summary of the Crawford decision appears in an A.L.R. annotation and clearly sets forth the Supreme Court’s holding that a warrant must be issued and delivered to a proper officer for service within the limitation period in order to toll the statute of limitations. Annot., 71 A.L.R.4th 543, 544 (1989).


source: Caselaw Access Project

author: LANDAU, J. SCHALLER, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. VICTOR TORRES
    (14279)
    Lavery, Landau and Schaller, Js.
    Argued December 4, 1995
    officially released May 28, 1996

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John J. Davenport, deputy assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant, Victor Torres, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a). The defendant claims that the trial court improperly (1) denied his motions for judgment of acquittal and for a new trial, and (2) deprived him of his constitutional rights to freedom of association, due process, and a fair trial by admitting evidence that he was a member of a gang thereby allowing the jury to find him “guilty by association.”

The jury could reasonably have found the following facts. The defendant was a “regional commander” of a street gang known as the “Latin Kings.” For several weeks, the defendant’s gang was involved in an ongoing dispute with a rival gang known as “Los Solidos.” In the afternoon hours of September 26, 1993, the Latin Kings conducted an emergency meeting at Morales’ Cafe to discuss a recent incident in which a member of their gang was shot at by a member of the rival gang. During the meeting, Jose Martinez, a member of the gang and a witness for the state, served as a lookout. Although Martinez had attended nine prior gang meetings in which the defendant had been present, he did not attend the emergency meeting, nor did he know whether the defendant was there. At the meeting, the gang devised a plan to retaliate for the shooting incident by killing a member of Los Solidos.

After the meeting, Jose Velez, another gang member, instructed Martinez to keep watch for rival gang members from the roof of a four-story building located on East Clay Street. When Martinez arrived, four other gang members, including Velez, were already there. The group possessed an assortment of firearms including an M-16 rifle with a scope, a shotgun and several handguns. Velez had a portable CB radio that he used to maintain contact with other gang members, some of whom had remained at Morales’ Cafe, which was referred to by the gang as “sector one.” Other gang members were stationed in different locations throughout the area.

At approximately midnight, the victim, Ana Plaza, was returning to her home at 79 East Clay Street, which is located across the street from the building where the group stood lookout on the roof. Plaza was accompanied by her son, Obdulio, her daughter, Melissa, and her infant granddaughter. As Plaza and her family prepared to enter Plaza’s house, Velez and the others observed their actions from the rooftop. Velez had a brief conversation over the portable radio with an unknown individual about the activity at the Plaza residence. Immediately following that conversation, Velez instructed his people to fire at the Plaza family. At least three gang members immediately opened fire discharging several rounds of ammunition for a duration of approximately twenty seconds.

As a result of the gunfire, Ana Plaza was struck by a bullet in her hip and Melissa was struck by a bullet in her arm. As both women began screaming, Obdulio ran into the house and phoned the police and an ambulance. Meanwhile, the shooters fled from the roof of the building into a vacant apartment, stuffed their weapons into a duffel bag and ran from the area.

Approximately ten days later, the police arrested the defendant and several other members of the Latin Kings. In an oral statement to Detectives Robert Henderson and Mark Deal of the Waterbury police department, the defendant admitted that he was a member of the Latin Kings and that he held the rank of regional commander at the time of the shooting. Although the defendant denied any personal involvement in the shooting, he informed the police that several members of a gang called the “Nietas,” who were allied with his gang, were responsible for the shooting. The defendant stated that one of the shooters was called “Cano,” and that a Latin King called “Rambo” had helped with the disposal of the weapons used in the shooting.

In Ids first claim, the defendant asserts that the state failed to present sufficient evidence to support his conviction for conspiracy to commit murder. He argues that, although the evidence established that certain members of his gang planned to kill an unspecified rival gang member, the state failed to present sufficient evidence to prove that the defendant knew of or agreed to the plan. He argues that the state’s evidence failed to establish that he had the specific intent to conspire and the specific intent to commit murder, both of which are necessary elements of the charge of conspiracy. In contrast, the state posits that there was sufficient evidence from which the jury could infer both disputed elements of intent.

“In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . .” (Citations omitted; internal quotation marks omitted.) State v. Goodrum, 39 Conn. App. 526, 531-32, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995). Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. . . . Moreover, it is well settled that conspiracy is a specific intent crime, with the intent divided into two parts: (1) the intent to agree to conspire; and (2) the intent to commit the offense that is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also they intended to commit the elements of the offense.” (Citations omitted; internal quotation marks omitted.) State v. Estrada, 28 Conn. App. 416, 420-21, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992).

“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Citations omitted; internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). In a conspiracy prosecution, when determining both a defendant’s specific intent to agree and his specific intent that the criminal acts be performed, the jury may rely on reasonable inferences from facts in the evidence and may develop “a chain of inferences, each link of which may depend for its validity on the validity of the prior link in the chain.” Id., 130.

Having stated these principles to guide us, we proceed with our analysis. The state argues that, from the evidence presented, the jury could conclude that the defendant’s intent to agree to the conspiracy and to kill a rival gang member was established beyond a reasonable doubt. The state contends that the evidence established that the defendant was in the vicinity of the occurrence that day, that he was a regional commander of the Latin Kings, that he had been present at several previous gang meetings that Martinez attended, and that the retaliatory plan to kill a member of Los Solidos was conceived at the emergency meeting. Because of the defendant’s position in the gang, his routine attendance at previous Latin Kings meetings, and the radical nature of the planned operation and its probable consequences, the state asserts that it was reasonable for the jury, in the exercise of common sense and ordinary intelligence and experience, to infer that the defendant had attended the earlier meeting at Morales’ Cafe.

The state further claims that even without drawing the specific inference that the defendant had attended the meeting, it was reasonable for the jury to have inferred that, because the defendant held the position of regional commander, he necessarily knew about the existing conflict between his gang and Los Solidos and the earlier shooting of a Latin Kings member by a Los Solidos member. This knowledge, coupled with Martinez’ testimony that he recognized the defendant’s voice coming over Velez’ portable radio shortly before the shooting, constituted circumstantial evidence sufficient to provide the jury a basis to infer that the defendant knew about the plan and acted in concert with the other gang members. The state finally contends that the jury could have reached the same inference as a result of the defendant’s statement to the police, which the state claims contained “inside information” regarding the identity of one of the shooters and of the person who disposed of the guns.

In summary, the state attempts to build its case on a foundation comprised of three facts: (1) The defendant was a regional commander in the Waterbury Latin Kings gang; (2) Martinez heard the defendant’s voice over Velez’ portable radio on the rooftop sometime during the evening of the occurrence; and (3) the defendant displayed inside knowledge of the shooting when he was interrogated by the police ten days later. The difficulty we have in accepting the state’s argument is the lack of predicate facts from which the jury could reasonably have drawn the appropriate permissive inferences that the defendant was present at the emergency meeting or was in communication with the rooftop shooters. Furthermore, there is nothing in the defendant’s oral statement to the police to allow the jury to infer that he had prior knowledge of the conspiracy.

“A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion. State v. Amarillo, 198 Conn. 285, 300-302, 503 A.2d 146 (1986); see also State v. Shine, 193 Conn. 632, 644-45, 479 A.2d 218 (1984); State v. Johnson, 185 Conn. 163, 167-69, 440 A.2d 858, aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Vasquez, 182 Conn. 242, 246-48, 438 A.2d 424 (1980). State v. Palmer, 206 Conn. 40, 47-48, 536 A.2d 936 (1988). . . . State v. Cooper, [227 Conn. 417, 442-43, 630 A.2d 1043 (1993)].” (Internal quotation marks omitted.) State v. Turmon, 34 Conn. App. 191, 200, 641 A.2d 138 (1994). “Where a group of facts is relied on for proof of an element of a crime it is the cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proven in accordance with that standard. It is only where a single fact is essential to proof of an element, however, that such evidence must support the inference of that fact beyond a reasonable doubt.” State v. Williams, 27 Conn. App. 654, 672-73, 610 A.2d 672, cert. denied, 223 Conn. 914, 614 A.2d 829 (1992).

Although the state asserts that Martinez’ testimony provided sufficient circumstantial evidence of the defendant’s conduct to establish its claims that “the defendant communicated with the rooftop shooters shortly before the shooting,” and that the defendant was present at the emergency meeting, there is nothing in the record to substantiate these claims. To the contrary, Martinez’ testimony is devoid of any information concerning the defendant’s conduct.

Martinez testified that he never saw, or communicated with, the defendant in any manner on the day of the shooting. Martinez did not attend the emergency meeting, nor did he have any knowledge of whether the defendant attended the meeting. Martinez stated that he did not receive any orders from the defendant concerning where, or for what reason, he was to be a lookout on the day of the shooting. Although Martinez claims to have heard the defendant’s voice emanate from Velez’ portable radio while the gang members were on the roof, he could not remember what time he heard the defendant’s voice nor did he ever testify to the nature, length, or substance of what the defendant allegedly said. Martinez was certain, however, that he and the other gang members had been on the rooftop “[f]or a couple of horns” prior to the shooting, and that, although a radio transmission immediately preceded Velez’ order to shoot, that transmission was not the one in which he claimed to have heard the defendant’s voice. On the basis of this evidence, we conclude that it was unreasonable for the jury to infer either that the defendant attended the meeting at Morales’ Cafe or that he communicated directly with the gang members who did the shooting.

Nevertheless, the state maintains that, because Martinez testified that he heard the defendant’s voice over the portable radio, there was proof that the defendant was present at one of the sectors established for purposes of the plan. This argument lacks merit because, although Martinez testified that the defendant’s voice emanated from sector one, he did not say how or why he believed that to be so, other than to say “[bejcause . . . that he was in section one.” Martinez admitted that he was not at sector one at all that night and that he “didn’t really hear what [the defendant] said.” Thus, there were no predicate facts before the jury that would lend support to Martinez’ conclusion that the defendant communicated with the rooftop participants. Accordingly, there is no evidence from which the jury could infer anything about the defendant’s whereabouts on the night of the shooting.

Moreover, because Martinez was not at sector one that night and did not hear what the defendant allegedly stated to Velez over the radio, the state’s assertion that the defendant’s overheard voice was a “communication from the [command] post” is a mischaracterization of the evidence. Even if the jury gave full credit to Martinez’ testimony that he was able to recognize the defendant’s voice coming over the portable radio, there was no evidence that sector one was the command post, that the defendant was ever at sector one, or that the defendant disclosed his location during the alleged transmission. The state’s assertion, therefore, does not provide an adequate basis to allow us to conclude that the jury could infer, beyond a reasonable doubt, that the defendant participated in the conspiracy. Indeed, on the sparse evidence presented, we conclude that there is no basis for any such inference to be drawn by the jury without resorting to speculation and guesswork. A suspicion of illegal activity on the part of the defendant does not satisfy the state’s burden of proving its case beyond a reasonable doubt. State v. Arbelo, 37 Conn. App. 156, 161-62, 655 A.2d 263 (1995).

The state points to the evidence that the defendant was a regional commander of the Latin Kings to buttress its contention that, by virtue of his gang membership and rank, knowledge of the conspiracy may be imputed to him. The state further argues that the presence of the defendant “at all of the previous meetings attended by Martinez” supports an inference that he was aware of the conspiracy. The record, however, does not justify these assertions. First, contrary to the state’s contention that the defendant always attended the gang meetings, Martinez testified that the defendant “sometimes was there but he didn’t conduct the meetings.” (Emphasis added.) Martinez also testified that the meetings he had attended in the past were all conducted by the president of the gang, an individual other than the defendant. Second, there is no evidence in the record describing either the role of a regional commander within the gang or the gang’s method of disseminating information to its members. When these factors are considered in conjunction with the lack of proof that the defendant attended the emergency meeting, we conclude that it was unreasonable for the jury to infer that the defendant necessarily knew about and intended to participate in the conspiracy solely on the basis of his gang membership and rank.

Finally, the state maintains that the defendant’s statements during custodial interrogation ten days after the incident were evidence of his prior knowledge of and participation in the conspiracy. We do not agree.

Our review of the record reveals that there was nothing of an inculpatory nature in the defendant’s responses to Detective Henderson’s questions despite Henderson’s opinion that the defendant “was reluctant to admit his involvement” in the conspiracy. To the contrary, Henderson testified that the defendant expressly denied any involvement in the conspiracy, and that the defendant could have learned whatever information he possessed about the shooting after it had occurred.

Henderson interrogated the defendant, and at least two other gang members, on October 6, 1993, nearly ten days after the shooting. Henderson testified that he did not take notes during the defendant’s statement nor did he tape-record the defendant’s statement. Relying solely on his memory of the defendant’s interrogation, Henderson prepared a supplemental police report the following day. Henderson testified that he could not remember whether he ever asked the defendant how he acquired the information he conveyed to the police concerning the shooting. As a result, Henderson’s testimony does not provide any indication that the defendant had prior knowledge of the conspiracy merely because he named one of the shooters and the person who disposed of the weapons.

Because the evidence established that there were at least six gang members on the roof and several others stationed in the area, the information the defendant told to Henderson was known to many people and was, therefore, not “inside information” exclusive only to the defendant, as characterized by the state. The record is devoid of any information regarding the source of the defendant’s knowledge and there is no basis for the jury reasonably to infer the defendant’s guilt based on his statements to the police. Thus, the state’s description of the defendant’s statements evincing inside information only presupposes the defendant’s participation in the conspiracy; it does not support a finding of guilt beyond a reasonable doubt.

We conclude that, when evaluated under the appropriate standard, the evidence in this case is insufficient to support the defendant’s conviction of conspiracy to commit murder.

The judgment is reversed and the case is remanded with direction to render judgment of acquittal.

In this opinion LAVERY, J., concurred.

SCHALLER, J.,

dissenting. Because I disagree with the majority on the appropriate scope of review to be applied to the jury verdict in this case, I respectfully dissent. With respect to the second claim of the defendant, I conclude that the trial court did not violate the defendant’s constitutional rights by admitting evidence of the defendant’s gang membership.

I

My disagreement with the majority concerning the insufficiency claim is based primarily on the application of the traditional principles of appellate review to the jury verdict in this case. It is useful to summarize the essential principles. “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. . . . State v. Joyner, 225 Conn. 450, 455, 625 A.2d 791 (1993). [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . State v. Grant, [219 Conn. 596, 604, 594 A.2d 459 (1991)]. . . . State v. Fran cis, [228 Conn. 118, 127, 635 A.2d 762 (1993)]; see also State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Greenfield, [228 Conn. 62, 76, 634 A.2d 879 (1993)]; State v. Rasmussen, 225 Conn. 55, 73-74, 621 A.2d 728 (1993).” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994).

I emphasize, as our Supreme Court did in Sivri, that “[u]nder [this] scope of review and its application, we give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawable therefrom that support the jury’s determination of guilt. On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” Id., 134.

Once the jury has determined guilt, “and has determined that, in its best judgment, the hypothesis or hypotheses of innocence posed by the defendant are no more than ‘possible’ as opposed to ‘reasonable’ . . . that jury determination is entitled to deference on appeal. It would be inconsistent with the entire process of trial fact-finding for an appellate court to do otherwise. . . . [T]o do so . . . would in effect permit an appellate court to substitute a different view of the evidence from the reasonable view taken by the jury.” (Citations omitted.) Id., 134-35. That is precisely what the majority has done in this case. By failing to give appropriate deference to the jury’s findings and inferences, the majority has substituted its own view of the evidence and reached a different result.

The majority has chosen to discredit the evidence that the jury chose to credit. I refer, in particular, to the majority’s statements that “although [Jose] Martinez testified that the defendant’s voice emanated from sector one, he did not say how or why he believed that to be so,” “nor did he ever testify to the nature, length, or substance of what the defendant allegedly said.” In fact, the majority rejects Martinez’ testimony that the defendant was in sector one, concluding that “there were no predicate facts before the jury that would lend support to Martinez’ conclusion that the defendant communicated with the rooftop participants. Accordingly, there is no evidence from which the jury could infer anything about the defendant’s whereabouts on the night of the shooting.” Further, the majority states: “Even if the jury gave full credit to Martinez’ testimony that he was able to recognize the defendant’s voice coming over the portable radio, there was no evidence ... to allow us to conclude that the jury could infer, beyond a reasonable doubt, that the defendant participated in the conspiracy.” Those statements are not consistent with the principle of appellate review requiring us to defer to the jury’s inferences rather than positing other possible inferences that the jury necessarily must have rejected.

Moreover, the majority posits that the state’s description of the defendant’s statements as indicating insider information about the shooting “presupposes the defendant’s participation.” The jury, having reached a guilfy verdict, clearly inferred — not presupposed — the defendant’s participation. A reviewing court must defer to those reasonable inferences that support the verdict. Finally, the majority engages in fact-finding contrary to the jury’s fact-finding when it finds that “the information the defendant told to Henderson was known to many people and was, therefore, not ‘inside information’ exclusive only to the defendant . . . .” That assertion directly counters the inviolability of the jury process of drawing reasonable inferences.

Traditional analysis requires that, after appropriate deference to the facts found and inferences drawn by the jury, we determine whether the evidence and reasonable inferences drawn by the jury fall short of establishing any element of the crime charged. In so doing, we must assume as true all facts, including states of mind, for the purpose of the challenge based on eviden-tiary insufficiency. If evidence existed from which the jury could have drawn reasonable inferences as to the defendant’s intent to agree to conspire and intent to engage in conduct constituting the crime of murder, and that the agreement was followed by an overt act in furtherance of the conspiracy by any of the conspirators, the verdict must stand even if another fact finder might have declined to credit particular evidence or have drawn different inferences.

In this case, as the majority informs us, the evidence relied on by the state was that, at the time of the shooting, the defendant was a regional commander of the Waterbury branch of a street gang known as the Latin Kings. He had previously held the positions of “philosopher” and president of the Waterbury Latin Kings. Although there was no direct evidence that the defendant attended the September 26, 1993 emergency meeting on the afternoon of the shooting, the defendant had been present at the nine previous meetings attended by Martinez, the informant.

At that time, a “war” was going on between the Latin Kings and Los Solidos. Plans were made at the meeting to kill a member of Los Solidos that evening. The killing was to be in retaliation for a recent incident in which a member of Los Solidos had shot at a member of the Latin Kings. The killing would be done from the rooftop of a four-story apartment building located across the street from a house where a Los Solidos member lived. None of the Latin Kings assigned to the rooftop held leadership positions in the Latin Kings. The group assembled in a vacant apartment in the four-story building at about 4 p.m. and proceeded to the roof when it became dark.

The site of the meeting, a bar in the city known as Morales’ Cafe, had been designated “sector one” as part of the plan to kill a member of Los Solidos. Communications between sector one and the rooftop took place by means of a CB radio. At some point in the evening, the defendant communicated with Jose Velez on the rooftop. Although the content of the conversation was not ascertained by Martinez, who was on the rooftop, he recognized the defendant’s voice and testified that the defendant had made the communication from sector one. After that communication, the watch — and ultimately the shooting — continued and did not cease. Later, moments before the shooting, Velez again communicated with someone via CB, then gave the order to shoot the people, who were thought to be members of Los Solidos.

When the defendant was arrested ten days later, he admitted to Detective Robert Henderson that he was a regional commander of the Latin Kings but was “reluctant to admit” that he was involved in the shooting incident. He provided “information indicating that he had a lot of knowledge” about the incident — knowledge and information that was not available to the general public. That information included identifying “Cano” as the person who did the shooting, Cano’s gang affiliation, and the fact that a member of the Latin Kings had disposed of the weapons.

From the evidence presented, the jury reasonably could have found that the defendant held a series of leadership positions' in the Waterbury branch of the Latin Kings, including president, culminating in his position as regional commander. He regularly attended the Latin Kings meetings, including all of the meetings at which Martinez had been present. On the day of the emergency meeting, held in the midst of a “war” with a rival gang, he was present at the sector established as part of the conspiracy to shoot a member of Los Solidos, and he communicated before the shooting with Velez on the rooftop. Because no Latin Kings leaders were on the roof, and since a CB communication immediately preceded the shooting, the jury reasonably could have inferred that Latin Kings leaders were at sector one, where the defendant, who was a leader, was located. From the defendant’s leadership position, his regular attendance at meetings, the emergency nature of the situation and the fact that the defendant employed a CB for communication, all of which were integral parts of the plan to commit the murder, and that the plan proceeded without interruption after the defendant’s communication with Velez, the jury reasonably could have inferred that the defendant knew of the plan to kill a member of Los Solidos, agreed to conspire to commit the murder, shared the intent to commit the murder and that a coconspirator committed an act in furtherance of the conspiracy.

Having drawn those reasonable inferences concerning the defendant’s participation and shared intent, the defendant’s disclosure ten days later, in Henderson’s words, of “a lot of knowledge” about the incident, not readily available “in the general public” could have led to further reasonable inferences of the defendant’s guilt of the crime charged. The fact that the evidence was disputed or that other inferences could have been drawn is not relevant to our review. As long as evidence existed from which the jury reasonably could have found the facts and drawn the inferences leading to its guilty verdict, it is our obligation to defer to those findings and inferences in passing on this sufficiency challenge.

The foregoing analysis has established that the jury’s inferences were reasonably drawn and that the evidence was sufficient to prove the crime charged. Under those circumstances, the jury’s chain of inferences is appropriate and a reasonable view of the evidence exists that supports the jury’s verdict of guilty. Id., 130. An appellate court is not entitled to “sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . State v. White, 229 Conn. 125, 142-43, 640 A.2d 572 (1994).” (Internal quotation marks omitted.) State v. Cruz, 40 Conn. App. 515, 522, 672 A.2d 502 (1996). I acknowledge that “this is not an easy case [but] it is a case in which the jury’s inference of an intent to kill [and intent to conspire] was sufficiently supported by the circumstantial evidence.” State v. Sivri, supra, 231 Conn. 131.

II

The defendant also challenges the trial court’s admission of evidence of the defendant’s membership and positions in the Latin Kings on both evidentiary and constitutional grounds. The defendant claims that the evidence of his status as a Latin King was proof of “guilt by association” and as such was more prejudicial than probative. He further asserts that the improper admission of this evidence deprived him of his constitutional right to freedom of association under both the Connecticut and United States constitutions. Neither claim has merit.

A

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. Pitt v. Kent, 149 Conn. 351, 357, 179 A.2d 626 (1962). ... A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985).” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 305-306, 664 A.2d 743 (1995).

The defendant argues that the evidence of his Latin Kings membership was not probative and prejudiced him by allowing the jury to infer bad character and a propensity to commit the type of offense charged. I conclude, however, that the evidence of gang membership and leadership in this case was relevant to the criminal charge of conspiracy to commit murder, which directly involved group activity. The evidence established that the defendant’s presence in sector one and his communication with Velez on the rooftop were not merely coincidental with the plan to kill a member of Los Solidos. Moreover, the charge involved a claim of group retaliation for an attack on a member of the Latin Kings. The evidence was probative of the basis of the defendant’s relationship with other gang members and the existence of a conspiracy among the gang members. State v. Mozell, 40 Conn. App. 47, 51, 668 A.2d 1340 (1996); see United States v. Hartsfield, 976 F.2d 1349, 1352 (10th Cir. 1992) (defendant’s membership in gang demonstrated relationship with coconspirator and existence of conspiracy). I further conclude that the trial court did not abuse its discretion in determining that the prejudicial impact of the evidence did not outweigh its probative value. See United States v. Hartsfield, supra, 1352.

B

Because the defendant did not preserve the constitutional claim at trial, he can prevail only if he meets the four prongs of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant fails to demonstrate that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.

“[T]he First Amendment protects an individual’s right to join groups and associate with others holding similar beliefs. See Aptheker v. Secretary of State, 378 U.S. 500, 507 [84 S. Ct. 1699, 12 L. Ed. 2d 992] (1964); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 [78 S. Ct. 1163, 2 L. Ed. 2d 1488] (1958).”Dawson v.Delaware, 503 U.S. 159, 163-64, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992). Nevertheless, “the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations . . . simply because those beliefs and associations are protected by the First Amendment.” Id., 165. An individual’s right to join groups and associations is not violated where the evidence proves something more than an individual’s abstract beliefs. Id., 167; United States v. Abel, 469 U.S. 45, 48, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984); see also United States v. Hartsfield, supra, 976 F.2d 1352.

As the previous discussion demonstrates, the evidence of the defendant’s membership, including his leadership positions, in the Latin Kings was probative of the conspiracy to commit murder charge. Because the evidence of the defendant’s association was relevant and probative of the issues in the case, the defendant’s first amendment rights were not violated by the admission of the evidence. Dawson v. Delaware, supra, 503 U.S. 163-64. A conspiracy involves association, and the state may offer evidence of association within the framework of the conspiracy charged.

Accordingly, I would affirm the judgment of the trial court and, therefore, respectfully dissent.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       In view of our remand, we do not reach the defendant’s second claim.

       Although the defendant asserts that his right to due process and a fair trial was also violated, he fails to analyze this claim. Accordingly, I decline to address it.

       The four conditions of Golding are the following: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; .(3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

       Although the defendant asserts that his rights under the Connecticut constitution could be greater than under the federal constitution, his analysis has failed to demonstrate this.

       The defendant also argues that the trial court failed to limit use of the association evidence. While the defendant may have been entitled to a limiting instruction, he has not indicated how this issue was preserved at trial. Pursuant to Practice Book § 4065 (d) (1), the party raising a claim must “include in the brief of that party or the appendix a verbatim statement of all relevant portions of the charge as requested . . . .” Because the defendant has not complied with § 4065 (d) (1) of the rules of practice, I decline to review this claim. State v. Krzywicki, 39 Conn. App. 832, 838, 668 A.2d 387 (1995) (Practice Book § 4061 assigns to appellant responsibility for providing record adequate for review).