Judge refuses to throw out rape charges; Defendant had argued that after 17 years, time was up.

Byline: Gary V. Murray

WORCESTER - Rejecting a defense argument that a time limit for prosecution had expired, a judge has denied a motion to dismiss charges against a Boston man accused of raping a woman 17 years ago in her Dewey Street apartment.

Tyrone Garden, 43, is awaiting trial in Worcester Superior Court on aggravated rape and assault with intent to rape charges in the alleged sexual assault of a 33-year-old woman on Sept. 18, 1991.

The woman, who lived on Dewey Street with her 10-year-old son at the time, reported to police that she was awakened in the middle of the night by a man on top of her who told her he had a gun and threatened to kill her if she moved or made any noise. The woman said she was raped by the intruder after pleading with him not to harm her or her son, who was asleep in another room.

No suspect was identified as a result of the initial police investigation. It was not until Sept. 11, 2006, one week before the statute of limitations would have expired in the case, that police sought a criminal complaint against Mr. Garden in Central District Court. The action was taken after investigators learned that Mr. Garden's DNA profile, which was in the Combined DNA Index System database, matched a genetic profile from forensic samples recovered in the 1991 rape investigation, police said. The complaint was issued that day.

Based on the match, investigators got a warrant to take another DNA sample from Mr. Garden on Oct. 12, 2006. An oral swab was taken from the suspect the next day at the Suffolk County House of Correction in Boston, where Mr. Garden was serving a nine-month sentence for assault, breaking and entering and possession of burglary tools. A DNA profile generated from the new sample also matched the crime scene evidence in the rape case, authorities said.

Mr. Garden, who has a prior conviction for indecent assault and battery, was arraigned March 4, 2007, in Central District Court on a single count of aggravated rape. On April 19, 2007, a Worcester County grand jury returned indictments charging him with aggravated rape and assault with intent to rape.

Mr. Garden has pleaded not guilty and remains in custody on $50,000 cash bail. He maintained in a motion to dismiss the charges that the prosecution of his case was time-barred because the indictments against him were not handed up until several months after the 15-year statute of limitations had expired. Mr. Garden, who is being held at Concord State Prison, prepared the motion himself, but it was later adopted by his appointed lawyer, Christopher P. LoConto, according to court records.

In his written opposition to the request for dismissal, Assistant District Attorney Joseph J. Reilly III said the law required only that criminal charges in a rape case be brought within 15 years, not that an indictment be returned within that time frame.

Mr. Reilly said the purpose of any statute of limitations was "to ensure the commencement of criminal process within the given time limits.

"This is accomplished either by the issuance of a complaint or an indictment. Either type of process is based on a finding of probable cause, and both similarly serve to place the defendant on notice of the charges against him," Mr. Reilly wrote. Because a criminal complaint was issued against Mr. Garden in Central District Court before the statute of limitations would have expired, the motion to dismiss had to be denied, the prosecutor argued.

Judge Peter W. Agnes Jr., who denied the motion to dismiss Monday, agreed with the prosecution's position.

"Here the defendant was charged by complaint within the period of limitations," Judge Agnes wrote.

Mr. Garden's case has been continued to May 27 for the setting of a trial date.