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State v. Richard P.

Court of Appeals of Connecticut

February 13, 2018


          Argued October 5, 2017

          Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, was Stephen J. Sedensky III, state's attorney, for the appellant (state).

          Daniel P. Scholfield, with whom, on the brief, was Hugh F. Keefe, for the appellee (defendant).

          Lavine, Sheldon and Prescott, Js.


          PRESCOTT, J.

         The 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.[1] 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.

         The 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.

         On 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.

         On 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 children.[2]

         Following 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.

         On May 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.

         The 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.[3] 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.

         Following 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, ''[4] but instead were simply unwilling to assist the state. This appeal followed.

         On 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 these arguments.[5]


         We 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).

         ‘‘Until 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).

         In 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.;[6] see also State v. Richardson, supra, 291 Conn. 429 n.4.

         In the 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).

         The 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).

         ‘‘[S]tatutes 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 (2012).

         ‘‘When 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 ...

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