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).
Osedach, senior assistant public defender, for the appellee
Rogers, C. J., and Palmer, McDonald, Espinosa and Robinson,
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 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
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
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).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.  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.
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
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
‘‘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]: 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. 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.)
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. . . .
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
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.'' Finally, pursuant to the prosecutor's
request at the ...