STATE v. LAWRENCE SMITH, SC 17731

Judicial District of New Haven

     Criminal; Whether Reinstatement of Criminal Charges Against the Defendant Following the Entry of a Nolle Prosequi Violated his Constitutional Right to a Speedy Trial; Whether Admission of an Audiotape Containing a Conversation Between a Coconspirator and his Cellmate Violated the Defendant's Constitutional Right to Confrontation; Whether Coconspirator's Statements were Admissible as Dual Inculpatory Statements. The defendant and Miguel Estrella took part in the murder and robbery of a drug dealer, Juan Disla.  On May 31, 2001, the state filed an information charging the defendant with, inter alia, conspiracy to commit murder.  On December 5, 2001, in response to the defendant's motion for a speedy trial, the state, pursuant to General Statutes § 54-56b, entered a "missing witness" nolle prosequi, informing the court that Estrella's counsel had advised the state by letter that Estrella would invoke his fifth amendment privilege against self-incrimination if called to testify.  The trial court, Fasano, J., accepted the nolle and dismissed the charges "without prejudice."  In March, 2005, the defendant was again arrested and charged with Disla's murder.  The defendant moved to dismiss the charges, claiming that Judge Fasano's acceptance of the nolle deprived the defendant of his constitutional right to a speedy trial.  It was the defendant's position that Judge Fasano, rather than accepting the state's representation that Estrella would invoke his fifth amendment privilege against self-incrimination if called to testify, had a duty to put Estrella on the witness stand and decide for himself whether Estrella would invoke his fifth amendment rights.  Secondarily, the defendant argued that, under Cislo v. City of Shelton, 240 Conn. 590 (1997), the entry of the nolle was the functional equivalent of a dismissal with prejudice of all charges, thereby precluding the refiling of charges arising from the same factual scenario several years later.  The trial court, Damiani, J., denied the motion, ruling that (a) Judge Fasano, in accepting the "missing witness" nolle, was entitled to rely on the state's representation; and (b) a nolle entered pursuant to § 54-56b is the functional equivalent of a dismissal without prejudice under Cislo.  During trial, the court, pursuant to the dual inculpatory statement exception to the hearsay rule, admitted into evidence a recorded conversation between Estrella and his cellmate, Wayne Williams, an FBI informant, in which Estrella implicated himself and the defendant in Disla's murder.  The jury ultimately found the defendant guilty of all charges.  On appeal, the defendant challenges the denial of his motion to dismiss on speedy trial grounds.  He also claims that the admission of the Estrella-Williams tape-recorded conversation and Williams' statements contained therein violated his constitutional right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004), because Williams' "leading and suggestive questions" during the conversation qualified as "testimonial" hearsay statements, and the state chose not to call Williams as a witness.  Finally, the defendant claims that Estrella's statement did not qualify for admission under the dual inculpatory statement exception to the hearsay rule.