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State v. Owen

Supreme Court of Connecticut

May 14, 2019

STATE OF CONNECTICUT
v.
RICKY OWEN

          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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