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State v. Kallberg

Supreme Court of Connecticut

June 13, 2017


          Argued January 23, 2017

          Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Kevin Murphy, former supervisory assistant state's attorney, for the appellant (state).

          Alice Osedach, senior assistant public defender, for the appellee (defendant).

          Rogers, C. J., and Palmer, McDonald, Espinosa and Robinson, Js.


          McDONALD, J.

         The defendant, Craig Kallberg, was convicted of larceny in the third degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-124 (a) (2) and conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 and 53a-124 (a) (2) after he unsuccessfully moved to dismiss those charges on the basis of the state's prior entry of a nolle prosequi on the same charges. The issue in this certified appeal[1] is whether the Appellate Court properly reversed the judgment of conviction on the ground that the entry of a nolle on those charges and nolles on charges in three other cases was part of an agreement between the state and the defendant, contemplating a global disposition supported by consideration, which barred his prosecution in the present proceeding. The state contends that the Appellate Court improperly concluded that the trial court's finding that the parties intended to enter into an agreement relating to only one of the cases was clearly erroneous, or to the extent that the agreement was ambiguous, it should have been construed in the defendant's favor. State v. Kallberg, 157 Conn.App. 720, 729-30, 118 A.3d 84 (2015).We conclude that the agreement was ambiguous as to the parties' intent, and therefore must be construed in the defendant's favor as a global disposition. Accordingly, we affirm the Appellate Court's judgment.

         The record reveals the following undisputed facts. Michael Higgins, an acquaintance of the defendant, confessed to the police that he and the defendant had pawned several items, including a set of golf clubs. A resident of the same apartment building where Higgins lived had reported to the police that various items had been stolen from his basement storage locker; many of those items were the same items that Higgins admitted to having pawned. In August, 2010, the defendant was arrested and charged with burglary in the third degree, larceny in the third degree, and conspiracy to commit both of those offenses under docket number CR-10-0046439-T (burglary/larceny case).

         By September, 2011, the defendant had three other cases pending against him from arrests prior to 2011, each under separate docket numbers, including one charging him with possession of narcotics (drug case).[2]In September, 2011, the state entered a nolle prosequi in each of the defendant's four pending cases at a hearing before Judge Kahn, who had been assigned to serve as the trial judge. [3] Approximately one year later, the state initiated the present prosecution, charging the defendant with larceny in the third degree as an accessory and conspiracy to commit larceny in the third degree for his role in the storage locker thefts.

         The defendant filed a motion to dismiss the charges, claiming that they had been permanently disposed of as part of an agreement (nolle agreement) that was memorialized on the record in the hearing before Judge Kahn. The defendant asserted that Judge Strackbein had assisted the parties in negotiating a plea agreement that was a global disposition of the four pending cases, under which he would plead guilty to possession of drug paraphernalia in the drug case and pay a fine of $300, in exchange for which the state would enter nolles in the other three cases, including the burglary/larceny case. The defendant further asserted that due to Judge Strackbein's subsequent unavailability to accept the plea, the parties had effectuated a comparable global disposition whereby the defendant made a donation of $271 to the Connecticut Criminal Injuries Compensation Fund (victim's fund) in exchange for nolles on all of his cases. The state opposed the motion, contending that the donation was consideration for the nolle in the drug case only.

         The sole evidence offered in connection with the motion to dismiss was the transcript of the hearing before Judge Kahn, which provided in relevant part as follows:

‘‘[Judge Kahn]: Good afternoon . . . . They're four matters correct?
‘‘[The Prosecutor]: MV-10-228488 . . . CR-10-46914 and then CR-10-47442 and lastly CR-10-46439. These matters are all on the trial list and over a course of time-some of these are a year old, going on a year and a half old, [defense counsel] and I we were able to have recent discussions.
‘‘I'll start with the file ending in 488, no insurance, traveling unreasonably fast. What we do in those cases is make sure that the insurance is gotten, if in fact he's driving an automobile, and the license is still valid or is valid. [The defendant] says that . . . he was operating with a valid motor vehicle license. The state is entering a nolle on that.
‘‘[Judge Kahn]: Nolle is noted.
‘‘[The Prosecutor]: Breach of [the] peace [in the second degree], which is the file ending in 442, we reached out to the complainant in that matter. . . . [W]e spoke to his attorney . . . [who] indicated and represented to us that . . . he does not want to pursue. In a normal day what we do is probably sub this . . . but we're entering a nolle in that matter based on the victim's wishes.
‘‘[Judge Kahn]: Nolle noted.
‘‘[The Prosecutor]: I'll leave the file ending with 914 to the end. The other file it looks fairly complicated and serious ends in 439. It's a bunch of burglaries; it's a larceny, at least the allegations. We have a couple of problems in that matter. One is the burglaries occurred to storage sheds. It doesn't mean they weren't burglaries, but the storage sheds had no tops on them. And it's arguable whether we could ever prove the breaking and entering or the illegal entry when in fact [the defendant] was alleged and admitted to peeking into the top. Many of those that he peeked into were empty. So what we really have in this case when it's all boiled down is a larceny in the [fourth] degree by possession. [The defendant] really gave up possession to the police of those possessions that he had possession of, isn't that true, [defense counsel]?
‘‘[Defense Counsel]: That's true.
‘‘[The Prosecutor]: So nobody here is out anything in this particular file. The state's entering a nolle in that file.
‘‘[Judge Kahn]: Nolle noted.
‘‘[The Prosecutor]: Now that leaves us with the drug case . . . . [W]e have various dosages of hydrocodone which is a narcotic or oxycodone a narcotic. But we have [the defendant] who over the course of time maybe not commensurate exactly with the day in question here, he has had prescriptions in the past and they have been provided to me-a copy of the bottles have been provided to me: I took some issue with [defense counsel] in that the prescription was say six or seven months old. But suffice it to say, this is still a simple possession of narcotics-a little shot glass of crushed up narcotics and another person in the car who's already copped to some of these. . . .
‘‘So what we had here was a proposed disposition to get rid of all of these files with a plea of drug paraphernalia and a fine of $300. That didn't work out today because we were unable to actually tap into Judge Strackbein. So I took the bull by the horns and asked [the defendant] to make a donation of $271 to the victim's fund.[4] Do we have a copy of that receipt in the file, madam clerk?
‘‘The Clerk: Yes, we do. . . .
‘‘[The Prosecutor]: . . . In light of that, what we do each and every day over in [another geographical area] is to nolle this case, as well. So, now [the defendant's] matters are all resolved . . . .
‘‘[Judge Kahn]: All right, I'll note the nolle on that. I do have something I'd like to put on the record. First, I want to put on the record that I would have been the trial judge. I know that these matters had been, at least one of them if not more, on the trial list. And so [the prosecutor]-and by the way I do know his nature is not to enter nolles lightly and so it's not his practice to nolle cases unless there's good reason, so I'm going to take him at his word that he couldn't prove the case. He did mention to me there were some issues about some codefendants that may be deceased, as well, in chambers.
‘‘[The Prosecutor]: Actually I should say that in the burglary/larceny case the codefendant in this matter is dead. The victim can't be found. That case as it stands today is unprovable.
‘‘[Judge Kahn]: Okay, so I want to be able to note that [the prosecutor] was very careful not to mention what the offer was, but he came up to chambers. He told me that you were here [defense counsel], your client was here. That you had worked out a deal. That he had asked Judge Strackbein, I guess, to put this on.'' (Emphasis added; footnote added.)

         Judge Kahn explained that Judge Strackbein was unavailable due to a scheduling conflict but that Judge Strackbein had ‘‘assured me that all the matters had been resolved. . . . I was hesitant to engage in the plea negotiations because I was going to be the trial judge, so I couldn't do that. But [the prosecutor] did tell me that he had some issues. He would nolle some matters because he had an inability to get certain witnesses, but he didn't share with me the substance of it. . . .

         ‘‘So if Judge Strackbein were here, irrespective of which judge is present, we cannot if the state wishes to enter a nolle, there's nothing the court can do. The state can enter a nolle. It's within the prosecutorial discretion. All the . . . court can do is ask the state to put their reasons on the record. But they can nolle cases whenever they want, and all the court can do is ask the reasons. . . . You've put them on the record, and so I'm not quarreling with that at all.''

         Judge Kahn then addressed the defendant about his potential substance abuse issues, and warned him that the state would not hesitate to pursue charges against him even if he had a valid prescription, if he abused his medication. Judge Kahn concluded her admonishment by stating: ‘‘Hopefully we won't see you again, and I will note the nolles for the reasons stated on the record.''[5] Finally, pursuant to the prosecutor's request at the ...

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