Argued
November 6, 2018
Procedural
History
Substitute
information charging the defendant, in the alternative, with
the crimes of strangulation in the second degree, assault in
the third degree and unlawful restraint in the first degree,
and with the crimes of assault in the second degree,
threatening in the second degree, interfering with an
emergency call and unlawful restraint in the second degree,
brought to the Superior Court in the judicial district of
Fairfield, geographical area number two, where the court,
Holden, J., accepted the state's entry of a
nolle prosequi in the case and denied the defendant's
motion to dismiss, and the defendant appealed.
Affirmed.
Pamela
S. Nagy, assistant public defender, for the appellant
(defendant).
Kathryn W. Bare, assistant state's attorney, with whom,
on the brief, were John C. Smriga, state's attorney, and
Judy Ann Stevens, senior assistant state's attorney, for
the appellee (state).
Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.
OPINION
KAHN,
J.
The
issue presented in this appeal is whether the trial court
properly determined that the prosecutor did not abuse her
discretion in a manner clearly contrary to manifest public
interest when she entered a nolle prosequi on the basis that
the state's material witness had become disabled for
purposes of General Statutes § 54-56b.[1] The defendant,
Ricky Owen, appeals from the decision of the trial court
allowing the prosecutor to enter a nolle prosequi over his
objection and denying his motion to dismiss the
charges.[2]The defendant argues that the
prosecutor's basis for entering the nolle-namely, that
her key witness was ‘‘disabled'' because
her fear prevented her from being able to testify-was
insufficient as a matter of law to establish that the witness
was disabled for purposes of § 54-56b. The defendant
therefore contends that the trial court improperly relied on
its finding-that the witness was disabled for purposes of
§ 54-56b-to deny his motion to dismiss and to allow the
nolle to enter over his objection. The state responds that
the defendant's claim mischaracterizes the
representations of the prosecutor at the time that the nolle
entered. According to the state, rather than simply claiming
that the witness was afraid to testify, the prosecutor
represented to the court that the witness was disabled due to
her compromised mental state-and that her statements of fear,
among other things, demonstrated that compromised mental
state. We agree with the state's characterization of the
prosecutor's representations to the trial court. Our
review of the record also reveals that, contrary to the
defendant's claim on appeal, the trial court made no
finding that the witness was-or was not-disabled. Instead,
the court properly grounded its ruling on its finding that,
in entering the nolle, the prosecutor had not abused her
discretion in a manner clearly contrary to manifest public
interest. Accordingly, we affirm the decision of the trial
court.
The
record reveals the following relevant facts and procedural
history. On May 31, 2016, the defendant was arrested in
connection with an alleged assault on J, [3] his girlfriend.
He was charged with, among other crimes, strangulation in the
second degree in violation of General Statutes (Rev. to 2015)
§ 53a-64bb, assault in the second degree in violation of
General Statutes § 53a-60 (a) (1), unlawful restraint in
the second degree in violation of General Statutes §
53a-96 (a), threatening in the second degree in violation of
General Statutes (Rev. to 2015) § 53a-62 (a) (1), and
interfering with an emergency call in violation of General
Statutes § 53a-183b (a). At the defendant's
arraignment, the court issued a no contact protective order
against the defendant as to J.
On
January 10, 2017, the day that evidence in the
defendant's trial was scheduled to begin, the prosecutor
sought to enter a nolle prosequi. In her memorandum in
support of her motion seeking to enter the nolle, the
prosecutor represented that J was a material witness. The
prosecutor also alleged that, on July 21, 2016, J, who was
originally from North Carolina and had returned to live there
following the incident, called the victim's advocate and
stated that she was experiencing ‘‘bouts of
depression'' and crying. She also reported to the
victim's advocate that a friend of the defendant had
contacted her to urge her not to testify against the
defendant. Although J consistently had stated that, despite
her fears, she intended to return to Connecticut to testify,
she also informed the victim's advocate that she still
thought about the incident and that it bothered her a great
deal. J was scheduled to travel by bus to Connecticut on
Friday, January 6, 2017, but the bus did not run that day due
to a storm in North Carolina. On the evening of Sunday,
January 8, 2017, J contacted the prosecutor to inform her
that she would be unable to return to Connecticut to testify.
During the course of that conversation, J requested help in
finding counseling, indicated that she was afraid to testify
and stated that she wanted to ‘‘get on with her
life.''
Relying
on these factual allegations, the prosecutor contended in her
memorandum that J had ‘‘become disabled''
for purposes of § 54-56b. The prosecutor further argued
that the issue before the court in determining whether to
allow the nolle to enter was not whether J was disabled, but
only whether, in entering the nolle, the prosecutor had
abused her discretion in a manner contrary to public policy.
See State v. Lloyd, 185 Conn. 199, 204, 440
A.2d 867 (1981).
The
trial court heard argument on the prosecutor's motion. At
the hearing on the motion, the prosecutor reiterated her
reliance on, inter alia, J's statements indicating that J
was going through bouts of depression and crying, that she
needed counseling, was afraid, could not stop thinking about
the incident and wanted to get on with her life. The
prosecutor further represented that the state could not
proceed without J's testimony and contended that J was
disabled.[4] The prosecutor's statements in support
of her representation that J was disabled demonstrate that
she relied on multiple pieces of information to support her
conclusion that J suffered from a disability due to the
emotional trauma that she had experienced as a victim of
domestic violence. Specifically, the prosecutor pointed not
only to J's ‘‘fear, '' but also to
her ‘‘depression'' and
‘‘emotional issues.''
Several
other statements made by the prosecutor at the hearing
further demonstrate that her representation that J was
‘‘disabled'' relied on more than a vague
assertion regarding J's fear of testifying. Acknowledging
that she had been unable to find legal precedent supporting
her claim that J's mental condition constituted a
disability pursuant to § 54-56b, the prosecutor lamented
the lack of such legal authority, stating that the
‘‘emotional tumult'' often experienced by
victims, combined with their fear of the ramifications of
cooperating with the police and prosecutors,
‘‘literally makes them unable to come
forward.'' With ‘‘supportive counseling,
'' the prosecutor continued, victims may be able to
overcome their fear of testifying. These statements
demonstrate that, rather than representing that J chose not
to testify because she was afraid, the prosecutor represented
to the court that J was unable to testify due to a
disability. The prosecutor urged the court to find that her
determination to enter the nolle on the basis of J's
disability was not an abuse of her discretion.
The
defendant objected to the nolle and moved to dismiss the
charges, focusing solely on one of the facts that the
prosecutor had referenced in representing to the court that J
had become disabled pursuant to § 54-56b-that J was
unable to testify due to her fear. Fear alone, the defendant
contended, is not sufficient to constitute a disability for
purposes of § 54-56b. The defendant argued that J merely
had elected not to return to Connecticut to testify and the
prosecutor had chosen not to serve her with a material
witness subpoena. The defendant did not respond to the
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