October 5, 2017
R. Lockwood, senior assistant state's attorney, with
whom, on the brief, was Stephen J. Sedensky III, state's
attorney, for the appellant (state).
P. Scholfield, with whom, on the brief, was Hugh F. Keefe,
for the appellee (defendant).
Lavine, Sheldon and Prescott, Js.
state of Connecticut appeals from the judgment of dismissal
rendered by the trial court after the state entered a nolle
prosequi in a criminal case charging the defendant, Richard
P., with various offenses arising from his alleged physical
and sexual abuse of two of his children. The state claims
that the court improperly dismissed the case because it had
sufficiently represented to the court that a material witness
had ‘‘died, disappeared or become
disabled'' within the meaning of General Statutes
§ 54-56b and Practice Book § 39-30. We are not
persuaded and, therefore, affirm the judgment of the court.
parties do not dispute the following facts. On January 19,
2013, the mother of the defendant's children made a
complaint to the Newtown Police Department that her husband,
the defendant, had physically and sexually abused two of her
children, who were six and eight years old. The following
day, the mother reported to the police department that one of
the two children had recanted the allegation and that she had
misunderstood the other child, whom she thought had reported
sexual abuse to her. The police department then conducted an
investigation that included a forensic interview of the
children by a multi-disciplinary team.
April 27, 2013, the defendant was arrested pursuant to a
warrant and charged with sexual assault in the fourth degree
in violation of General Statutes § 53a-73a, risk of
injury to a child in violation of General Statutes §
53-21 (a) (1), and risk of injury to a child in violation of
§ 53-21 (a) (2). The court issued two protective orders
prohibiting the defendant, among other things, from having
any contact with the two children. Subsequently, the court
also appointed a guardian ad litem for the children.
September 5, 2014, the defendant filed a motion seeking a
Franks evidentiary hearing regarding the veracity of
information contained in the affidavit accompanying the
state's application for the arrest warrant. See
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57
L.Ed.2d 667 (1978). In that motion, the defendant asserted
that the investigating officer intentionally or recklessly
had misrepresented the content of statements made by the
children during the forensic interview of the
a review of various submissions by the state and the
defendant, the court, Eschuk, J., concluded in a
memorandum of decision that the affidavit inaccurately
described some of the statements made by the children during
the forensic interview and that the inaccurate descriptions
were made with reckless disregard for their truth. The court
nevertheless declined to dismiss the charges against the
defendant because, even if the inaccurate portions of the
affidavit were not considered, other information set forth in
the warrant application was sufficient to demonstrate
probable cause for the defendant's arrest.
26, 2016, the state and the defendant appeared before the
court, Russo, J. The state entered a nolle prosequi,
stating, ‘‘[w]itness is unavailable.''
The state asked permission to place on the record its reasons
for entering a nolle. The state explained that the children
and their mother had moved to London, England, and that the
children's mother had sent a letter on May 23, 2016, in
which she indicated that she and the children would not be
returning to the United States and requested that the state
not contact her further. After making these representations,
Stephen J. Sedensky III, the state's attorney for the
judicial district of Danbury, stated: ‘‘So, both
[she] . . . and the children are unavailable, Your Honor, and
they are . . . outside the United States and not subject to
interstate . . . subpoena issues, and so for those reasons .
. . the unavailability of three key witnesses in the case,
the state is entering a nolle.'' Following this
representation, the court noted the nolle.
defendant then moved for a dismissal of the charges against
him. In support of his motion, the defendant offered, and the
court admitted over the state's objection, a copy of the
May 23, 2016 letter from the children's
mother. At the conclusion of the hearing, the
court indicated that a nolle had entered that day and that,
after giving the parties an opportunity to file briefs, it
would issue a decision on whether the case should be
dismissed on the next court date.
additional argument on June 15, 2016, the court issued an
oral decision granting the defendant's motion to dismiss.
The court indicated that the state had not sufficiently
represented that a material witness had died, disappeared, or
become disabled within the meaning of § 54-56b and
Practice Book § 39-30, and, as a result, the defendant
was entitled to a dismissal. In the court's view, the
material witnesses were not ‘‘unavailable,
'' but instead were simply unwilling to
assist the state. This appeal followed.
appeal, the state claims that, under the circumstances of
this case, in which the mother relocated with the two
children to another country beyond the reach of the
state's power to compel their attendance at trial and
refuses to return with them voluntarily to the United States,
the court improperly entered a judgment of dismissal for two
reasons. First, it contends that the children
‘‘had become disabled'' within the
meaning of § 54-56b. Alternatively, the state asserts
that the children had ‘‘disappeared''
within the meaning of § 54-56b. We disagree with both of
begin our analysis with a general discussion regarding the
law as it pertains to a nolle prosequi and the appropriate
standard of review for the state's claims on appeal. A
nolle prosequi is ‘‘a declaration of the
prosecuting officer that he will not prosecute the suit
further at that time.'' (Internal quotation marks
omitted.) State v. Winer, 286 Conn. 666, 685, 945
A.2d 430 (2008), quoting State v. Ackerman, 27
Conn.Supp. 209, 211, 234 A.2d 120 (1967). As our Supreme
Court has explained, ‘‘[t]he effect of a nolle is
to terminate the particular prosecution of the defendant
without an acquittal and without placing him in jeopardy. . .
. Therefore, the nolle places the criminal matter in the same
position it held prior to the filing of the information.
Indeed, no criminal matter exists until, and if, the
prosecution issues a new information against the defendant. .
. . If subsequently the prosecuting authority decides to
proceed against the defendant, a new prosecution must be
initiated.'' (Citation omitted; internal quotation
marks omitted.) State v. Richardson, 291 Conn. 426,
430, 969 A.2d 166 (2009).
the enactment of General Statutes [§ 54-56b] in 1975 . .
. the power to enter a nolle prosequi was discretionary with
the state's attorney; neither the approval of the court
nor the consent of the defendant was required. . . . The
principles that today govern the entry of a nolle prosequi
place some restrictions on the prosecuting attorney's
formerly unfettered discretion. Although the decision to
initiate a nolle prose-qui still rests with the state's
attorney, the statute and the rules now permit the defendant
to object to a nolle prosequi and to demand either a trial or
a dismissal except upon a representation to the court by the
prosecuting official that a material witness has died,
disappeared or become disabled or that material evidence has
disappeared or been destroyed and that a further
investigation is therefore necessary.'' (Citations
omitted; internal quotation marks omitted.) State v.
Lloyd, 185 Conn. 199, 201-202, 440 A.2d 867 (1981).
determining whether to accept the state's representation
and to decline to enter a dismissal, ‘‘the trial
court need not receive evidence, and thus makes no findings
of fact, to determine the accuracy of the state's
representations.'' Id., 204. Our Supreme
Court also has made clear that, at least in circumstances in
which the meaning of § 54-56b is not in dispute,
‘‘[t]he proper test is whether there has been a
manifest abuse of prosecutorial discretion. The court must
accept the entry of the nolle prosequi for the record unless
it is persuaded that the prosecutor's exercise of
discretion is clearly contrary to manifest public
interest.'' Id.; see also State v.
Richardson, supra, 291 Conn. 429 n.4.
present case, however, the state concedes that the resolution
of its appeal does not turn on the factual sufficiency of the
representation made by the prosecutor but instead on the
meaning of the language employed by the legislature in §
54-56b. Thus, as the state itself recognizes, the
‘‘resolution of that question ultimately gives
rise to an issue of statutory construction over which our
review is plenary.'' State v. Aloi, 280
Conn. 824, 832, 911 A.2d 1086 (2007); Bennett v. New
Milford Hospital, Inc., 117 Conn.App. 535, 541, 979 A.2d
1066 (2009), aff'd, 300 Conn. 1, 12 A.3d 865 (2011).
following principles governing statutory construction are
well established and guide our analysis. ‘‘When
construing a statute, our fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine, in a
reasoned manner, the meaning of the statutory language as
applied to the facts of [the] case, including the question of
whether the language actually does apply.'' (Internal
quotation marks omitted.) State v. Drupals, 306
Conn. 149, 159, 49 A.3d 962 (2012). We note that, under
General Statutes § 1-2z, ‘‘[t]he meaning of
a statute shall, in the first instance, be ascertained from
the text of the statute itself and its relationship to other
statutes. If, after examining such text and considering such
relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall not
be considered.'' ‘‘The test to determine
ambiguity is whether the statute, when read in context, is
susceptible to more than one reasonable
interpretation.'' (Internal quotation marks omitted.)
Weems v. Citigroup, Inc., 289 Conn. 769, 779, 961
A.2d 349 (2008).
must be construed, if possible, such that no clause, sentence
or word shall be superfluous, void or insignificant . . .
.'' (Internal quotation marks omitted.)
Housatonic Railroad Co. v. Commissioner of
Revenue Services, 301 Conn. 268, 303, 21 A.3d 759
(2011). ‘‘When a statute is not plain and
unambiguous, we also look for interpretative guidance to the
legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general subject
matter . . . .'' (Internal quotation marks omitted.)
Francis v. Fonfara, 303 Conn. 292, 297, 33 A.3d 185
the meaning of a statute initially may be determined from the
text of the statute and its relationship to other statutes .
. . extratextual evidence of the meaning of the statute shall
not be considered. . . . When the meaning of a provision
cannot be gleaned from examining the text of the statute and
other related statutes without yielding an absurd or
unworkable result, extratextual evidence may be consulted. .
. . [E]very case of statutory interpretation . . . requires a
threshold determination as to whether the provision under
consideration is plain and unambiguous. This threshold
determination then governs whether extra- textual sources can
be used as an interpretive tool. . . . [O]ur case law is
clear that ambiguity exists only if the statutory language at
issue is susceptible to more ...