State v. Owen , 331 Conn. 658 ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. RICKY OWEN
(SC 20127)
Palmer, McDonald, D’Auria, Mullins, Kahn and Ecker, Js.
Syllabus
Pursuant to statute (§ 54-56b), a nolle prosequi may not be entered as to
any count in an information if the accused objects and demands either
a trial or a dismissal, unless the nolle is entered on a representation to
the court by the prosecutor that, inter alia, a material witness has died,
disappeared or become disabled.
The defendant, who had been charged with various crimes in connection
with an alleged assault on J, his girlfriend, appealed from the trial court’s
denial of his motion to dismiss the charges after he objected to the
prosecutor’s entry of a nolle prosequi as to all of the charges. The
prosecutor represented, in her memorandum in support of her motion
seeking to enter the nolle, that J had returned to North Carolina, where
she had lived prior to the alleged assault, J had called the victim’s
advocate and stated that she was experiencing bouts of depression and
crying, the defendant’s friend had contacted her to urge her not to testify
against the defendant, and she still thought about the incident frequently
and it bothered her a great deal. J had been scheduled to travel to
Connecticut to testify at the defendant’s trial, but, after a storm cancelled
her planned transportation, she contacted the prosecutor to inform her
that she would be unable to return to Connecticut to testify. During her
conversation with the prosecutor, J requested help in finding counseling
and indicated that she was afraid to testify and wanted to get on with
her life. On the basis of these factual allegations, the prosecutor con-
tended that J had become disabled for purposes of § 54-56b. At a hearing
before the trial court on the prosecutor’s motion, the prosecutor reiter-
ated that she was relying on, inter alia, J’s statements indicating that
she was going through bouts of depression and crying. The defendant
argued that J was unable to testify due to her fear of testifying, and
that fear was not sufficient to constitute a disability for purposes of
§ 54-56b, that J had elected not to return to Connecticut, and that the
prosecutor had chosen not to serve her with a material witness sub-
poena. The trial court observed that its role was not to receive evidence
or to make a finding as to whether J was disabled, but to determine
whether the prosecutor, in entering the nolle, was exercising her discre-
tion in a manner that was clearly contrary to manifest public interest.
In finding that the prosecutor was not abusing her discretion, the court
relied on the facts that the prosecutor alleged during the hearing, viewed
in light of the prosecutor’s years of experience litigating domestic vio-
lence cases. The court thereupon accepted the entry of the nolle and
denied the defendant’s motion for dismissal, and the defendant appealed.
Held that the trial court properly relied on the prosecutor’s representa-
tions to find that the prosecutor was not exercising her discretion in a
manner clearly contrary to manifest public interest and, accordingly,
properly allowed the nolle to enter; contrary to the defendant’s represen-
tation of the record, the prosecutor did not rely solely on J’s stated fear
of testifying in asserting that J had become disabled for purposes of
§ 54-56b, but made various representations consistent with the position
that J suffered from a disability that prevented her from being able to
testify due to the emotional trauma she had experienced as a victim of
domestic violence, including that J suffered from depression and needed
counseling, and nothing in the record suggested that the prosecutor
acted with an intent to harass the defendant or otherwise was acting
in abuse of her discretion.
Argued November 6, 2018—officially released May 14, 2019
Procedural History
Substitute information charging the defendant, in the
alternative, with the crimes of strangulation in the sec-
ond 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 defen-
dant 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 attor-
ney, and Judy Ann Stevens, senior assistant state’s
attorney, for the appellee (state).
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 objec-
tion 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 defen-
dant’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 compro-
mised 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 Gen-
eral 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 defen-
dant 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 counsel-
ing, 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 fur-
ther argued that the issue before the court in determin-
ing 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 indi-
cating 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 repre-
sented that the state could not proceed without J’s
testimony and contended that J was disabled.4 The pros-
ecutor’s statements in support of her representation
that J was disabled demonstrate that she relied on multi-
ple 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 vio-
lence. Specifically, the prosecutor pointed not only to
J’s ‘‘fear,’’ but also to her ‘‘depression’’ and ‘‘emo-
tional 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 asser-
tion 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 disabil-
ity 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 determi-
nation 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 con-
stitute a disability for purposes of § 54-56b. The defen-
dant 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 prosecutor’s represen-
tations that J was depressed and suffering from ‘‘emo-
tional issues,’’ and that she had requested help in finding
counseling services.
The court issued its decision from the bench, begin-
ning with the observation that its role was not to receive
evidence or to make a finding as to whether J was
disabled, but only to determine whether, in entering
the nolle, the prosecutor had exercised her discretion in
a manner that was ‘‘clearly contrary to manifest public
interest.’’ State v. Lloyd, supra, 185 Conn. 204. In finding
that the prosecutor had not abused her discretion, the
court relied on the facts alleged by the prosecutor dur-
ing the hearing, viewed in light of the prosecutor’s sev-
enteen years of experience litigating domestic violence
cases. The court accordingly accepted the nolle prose-
qui and denied the defendant’s motion for dismissal.
This appeal followed.5
Translated from Latin, the term ‘‘nolle prosequi’’
means ‘‘to be unwilling to prosecute.’’ Webster’s New
International Dictionary (2d Ed. 1941) p. 1465; see also
Black’s Law Dictionary (10th Ed. 2014) p. 1210 (‘‘not
to wish to prosecute’’). We have explained that ‘‘a nolle
is, except when limited by statute or rule of practice
. . . a unilateral act by a prosecutor, which ends the
pending proceedings without an acquittal and without
placing the defendant in jeopardy.’’ (Citations omitted;
internal quotation marks omitted.) Cislo v. Shelton, 240
Conn. 590, 599 n.9, 692 A.2d 1255 (1997). ‘‘Although
the entry of a nolle prosequi results in the defendant’s
release from custody, he can . . . be tried again upon
a new information and a new arrest.’’ (Citation omitted.)
State v. Lloyd, supra, 185 Conn. 201; see Practice Book
§ 39-31 (‘‘The entry of a nolle prosequi terminates the
prosecution and the defendant shall be released from
custody. If subsequently the prosecuting authority
decides to proceed against the defendant, a new prose-
cution must be initiated.’’).
Section 54-56b strikes a balance between ‘‘the state’s
right to enter a nolle prosequi in a pending prosecution
and the defendant’s constitutional right to a speedy
trial.’’ State v. Lloyd, supra, 185 Conn. 200. ‘‘Until the
enactment of General Statutes § 54-46 (now § 54-56b)
in 1975, and the promulgation of Practice Book § 2137
[now § 39-30] in 1976,6 the power to enter a nolle prose-
qui was discretionary with the state’s attorney; neither
the approval of the court nor the consent of the defen-
dant was required.’’ (Footnote added.) Id., 201. Pursuant
to § 54-56b, that discretion is no longer without limit. As
a general rule, a nolle may not enter over a defendant’s
objection and demand for a trial or dismissal. See Gen-
eral Statutes § 54-56b. Although there is an exception
to that general rule when the prosecutor represents to
the court that ‘‘a material witness has died, disappeared
or become disabled or that material evidence has disap-
peared or has been destroyed and that a further investi-
gation is therefore necessary’’; General Statutes § 54-
56b; the prosecutor’s exercise of discretion in entering
the nolle is subject to review by the court for abuse of
discretion. See State v. Lloyd, supra, 204. We emphasize,
however, that once the prosecutor has represented that
one of the exceptions applies, the trial court must allow
the nolle to enter unless it concludes that the prosecutor
has abused her discretion in arriving at that decision.
As we have explained, ‘‘[t]he 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.’’ (Emphasis
added.) Id.
The level of judicial review of the exercise of prosecu-
torial discretion is a deferential one, akin to ‘‘the review
of the exercise of judicial discretion . . . .’’ Id. In Lloyd,
when this court first interpreted the effect of § 54-56b
on the prosecutor’s discretion to enter a nolle, we
explained that, in determining whether a prosecutor’s
representations were sufficient to overcome a defen-
dant’s objection, the trial court ‘‘need not receive evi-
dence, and thus makes no findings of fact, to determine
the accuracy of the state’s representations.’’ Id. Our
interpretation of § 54-56b did not suggest that the stat-
ute shifted power from the executive to the judiciary
by allowing the judiciary to substitute its judgment for
that of the executive.
The authorities that we relied on in Lloyd support
the view that, rather than inviting courts to substitute
their judgment for that of the prosecutor, the limited
purpose of § 54-56b was to protect defendants from
abuses of prosecutorial discretion. One of the primary
decisions on which we relied, United States v. Cowan,
524 F.2d 504 (5th Cir. 1975), cert. denied sub nom.
Woodruff v. United States, 425 U.S. 971, 96 S. Ct. 2168,
48 L. Ed. 2d 795 (1976), explains the rationale underlying
the deferential level of review applied to the prosecu-
tor’s entry of a nolle. In that case, the United States
Court of Appeals for the Fifth Circuit reversed the judg-
ment of the federal District Court, which had denied
the prosecutor’s motion to dismiss pending criminal
proceedings pursuant to rule 48 (a) of the Federal Rules
of Criminal Procedure and, when the government
refused to proceed, appointed special prosecutors. Id.,
505. Rule 48 of the Federal Rules of Criminal Procedure
provides in relevant part: ‘‘(a) The government may,
with leave of court, dismiss an indictment, information
or complaint. The government may not dismiss the pros-
ecution during trial without the defendant’s consent.
. . .’’ (Emphasis added.) The Fifth Circuit explained
that the issue presented in the appeal was ‘‘the extent
to which the phrase ‘[with] leave of court’ in [r]ule 48
(a) limits or conditions the [common-law] power of the
[government] to dismiss an indictment without leave
of court.’’ United States v. Cowan, supra, 505–506.
Similar to § 54-46b, rule 48 (a) of the Federal Rules of
Criminal Procedure has modified the previous, absolute
authority enjoyed by federal prosecutors to dismiss
charges. The phrase ‘‘with leave of court’’ established
a judicial check on that formerly absolute power. See
id., 513. The court explained that the rule was not
intended, however, ‘‘to confer on the [j]udiciary the
power and authority to usurp or interfere with the good
faith exercise of the [e]xecutive power to take care that
the laws are faithfully executed. [Rule 48 (a)] was not
promulgated to shift absolute power from the [e]xecu-
tive to the [j]udicial [b]ranch. Rather, it was intended
as a power to check power. The [e]xecutive remains
the absolute judge of whether a prosecution should be
initiated and the first and presumptively the best judge
of whether a pending prosecution should be terminated.
The exercise of its discretion with respect to the termi-
nation of pending prosecutions should not be judicially
disturbed unless clearly contrary to manifest public
interest. In this way, the essential function of each
branch is synchronized to achieve a balance that serves
both practical and constitutional values.’’ Id.; see also
United States v. Ammidown, 497 F.2d 615, 620 (D.C.
Cir. 1973) (observing that role conferred on judiciary
by rule 48 [a] of Federal Rules of Criminal Procedure
was ‘‘role of guarding against abuse of prosecutorial
discretion’’). Like rule 48 (a), § 54-46b allows for a defer-
ential review by the courts of a prosecutor’s entry of
a nolle, solely to protect against prosecutorial abuses
of discretion.7
It is highly significant that a prosecutor is an officer
of the court, who owes a duty of candor to the tribunal.
See Rules of Professional Conduct 3.3. Due to their
function, in fact, prosecutors are held to an even higher
standard than other attorneys. We have observed that
‘‘[the prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.’’
(Internal quotation marks omitted.) State v. Medrano,
308 Conn. 604, 612, 65 A.3d 503 (2013); see also A.B.A.,
Standards for Criminal Justice: Prosecution Function
(4th Ed. 2015) standard 3-1.2 (b) (‘‘The primary duty of
the prosecutor is to seek justice within the bounds of
the law, not merely to convict. The prosecutor serves
the public interest and should act with integrity and
balanced judgment to increase public safety both by
pursuing appropriate criminal charges of appropriate
severity, and by exercising discretion to not pursue
criminal charges in appropriate circumstances. The
prosecutor should seek to protect the innocent and
convict the guilty, consider the interests of victims and
witnesses, and respect the constitutional and legal
rights of all persons, including suspects and defen-
dants.’’ [Emphasis added.]), available at https://
www.americanbar.org/groups/criminal justice/
standards/ProsecutionFunctionFourthEdition.
Our decision today should not be read to suggest that
trial courts should function as ‘‘rubber stamps’’ for a
prosecutor’s decision to enter a nolle. Abuse of discre-
tion review is precisely what it sounds like—upon a
defendant’s objection, § 54-56b requires a court to
review the prosecutor’s decision to enter a nolle for
abuse of discretion, on the basis of the prosecutor’s
representations at the hearing. The mere fact that the
court’s review is a deferential one does not mean that,
in every instance, a court must accept the nolle. A recent
decision of the Appellate Court provides a helpful illus-
tration. In State v. Richard P., 179 Conn. App. 676, 678,
680, 181 A.3d 107, cert. denied, 328 Conn. 924, 181 A.3d
567 (2018), the Appellate Court affirmed the judgment
of dismissal rendered by the trial court after the state
entered a nolle and the defendant objected. In that case,
the defendant had been charged ‘‘with various offenses
arising from his alleged physical and sexual abuse of
his children.’’ Id., 678. When the state entered a nolle,
it represented to the court that the children and their
mother were ‘‘ ‘unavailable’ ’’ because they had moved
to London, England. Id., 680. In response, the defendant
moved to dismiss the charges, and, in support, submit-
ted a letter from the mother, which the court reviewed,
in which the mother expressed dissatisfaction with the
manner in which the state had conducted its investiga-
tion and handled the case. Id. The mother closed the
letter by requesting: ‘‘ ‘Please do not contact me again.’ ’’
Id., 680 n.3. The trial court granted the motion to dismiss
on the basis that the prosecutor had not ‘‘sufficiently
represented that a material witness had died, disap-
peared, or become disabled within the meaning of § 54-
56b and Practice Book § 39-30 . . . .’’ Id., 681. On
appeal, the state contended, inter alia, that the two
children ‘‘ ‘had become disabled’ ’’ within the meaning
of § 54-56b. Id. The state argued that the children had
become ‘‘disabled’’ when their mother relocated them
to England because, due to their age and location, they
lacked the legal ability to return to Connecticut to tes-
tify. Id., 685. The Appellate Court rejected that argument
and also rejected the state’s expansion of the term ‘‘dis-
abled’’ to extend beyond situations that involve a
‘‘ ‘[g]ood faith disagreement about what constitutes dis-
ability’ ’’ pursuant to Lloyd. Id., 683 n.6, quoting State
v. Lloyd, supra, 185 Conn. 205.
In the present case, in contrast to State v. Richard
P., supra, 179 Conn. App. 676, the prosecutor’s represen-
tations fell within the range of a good faith disagreement
regarding the meaning of ‘‘disabled’’ pursuant to § 54-
56b. Accordingly, the trial court properly relied on those
representations to find that the prosecutor was not
abusing her discretion in a manner clearly contrary to
manifest public interest. Contrary to the defendant’s
representation of the record, the prosecutor did not
rely solely on J’s stated fear of testifying in asserting
that J had ‘‘become disabled’’ for purposes of § 54-56b.
Instead, as we explained in this opinion, the prosecutor
made various representations consistent with the posi-
tion that J suffered from a disability that prevented
her from being able to testify.8 Those representations
included that J stated that she suffered from bouts of
depression and crying, needed counseling, was afraid
and could not stop thinking about the incident. Nothing
in the record suggests that the prosecutor was acting
with an intent to harass the defendant or otherwise
acting in abuse of her discretion. Given the prosecutor’s
representations, the trial court properly deferred to the
prosecutor’s exercise of discretion and allowed the
nolle to enter.
The decision of the trial court is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 54-56b provides: ‘‘A nolle prosequi may not be entered
as to any count in a complaint or information if the accused objects to the
nolle prosequi and demands either a trial or dismissal, except with respect
to prosecutions in which a nolle prosequi is entered 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 has been destroyed and that a further investigation is therefore necessary.’’
2
The defendant appealed from the decision of the trial court to the Appel-
late Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
In accordance with our policy of protecting the privacy interests of the
victims of domestic violence, we decline to identify J or others through
whom J’s identity may be ascertained. See General Statutes § 54-86e.
4
The defendant does not challenge on appeal the state’s claim that J was
a material witness.
5
Prior to oral argument, this court sua sponte ordered the parties to be
prepared to address whether the appeal had become moot in light of the
fact that, by November 6, 2018, when the case was argued to this court,
more than thirteen months had passed since the underlying charges were
nolled, and the functional equivalent of a dismissal had entered by operation
of law. See General Statutes § 54-142a (c) (1) (‘‘Whenever any charge in a
criminal case has been nolled in the Superior Court, or in the Court of
Common Pleas, if at least thirteen months have elapsed since such nolle,
all police and court records and records of the state’s or prosecuting attorney
or the prosecuting grand juror pertaining to such charge shall be erased
. . . .’’); Cislo v. Shelton, 240 Conn. 590, 607–608, 692 A.2d 1255 (1997)
(discussing dismissal by operation of law pursuant to § 54-142a).
At oral argument, the defendant contended that, as to the felony charges,
the case is not moot because the statute of limitations will not run on
those offenses until 2021. Moreover, the defendant argued, a dismissal after
thirteen months pursuant to § 54-142a (c) (1) is one without prejudice as
opposed to a dismissal pursuant to § 54-56b following a defendant’s objection
to the state’s entry of a nolle, which is with prejudice.
We agree with the defendant that the appeal is not moot as to the felony
charges of strangulation in the second degree in violation of General Statutes
(Rev. to 2015) § 53a-64bb and assault in the second degree in violation of
§ 53a-60 (a) (1). The entry of a nolle plus the passage of thirteen months
results in the functional equivalent of a dismissal without prejudice. See
State v. Smith, 289 Conn. 598, 612, 960 A.2d 993 (2008); Cislo v. Shelton,
supra, 240 Conn. 599. ‘‘Such a dismissal does not preclude the state from
filing charges—even the same ones—at a later time, provided that the statute
of limitations has not run.’’ State v. Smith, supra, 612.
Because the statute of limitations had run as to the three misdemeanor
charges—threatening in the second degree in violation of General Statutes
(Rev. to 2015) § 53a-62 (a) (1), unlawful restraint in the second degree in
violation of § 53a-96 (a) and interfering with an emergency call in violation
of § 53a-183b (a), the appeal is moot as to those three charges.
6
Practice Book § 39-30 provides: ‘‘Where a prosecution is initiated by
complaint or information, the defendant may object to the entering of a
nolle prosequi at the time it is offered by the prosecuting authority and may
demand either a trial or a dismissal, except when a nolle prosequi is entered
upon a representation to the judicial authority by the prosecuting authority
that a material witness has died, disappeared or become disabled or that
material evidence has disappeared or has been destroyed and that a further
investigation is therefore necessary.’’
7
We acknowledge that there are substantive differences between § 54-
46b and rule 48 (a) of the Federal Rules of Criminal Procedure. This court
relied in Lloyd on the authorities that interpreted rule 48 (a), however,
merely for the general principles that underlie both rules to guide this court
in balancing, on the one hand, the need to protect defendants against abuses
of prosecutorial discretion, and, on the other hand, the recognition that the
Judicial Branch should not interfere with a prosecutor’s good faith exercise
of prosecutorial discretion.
8
The defendant’s argument that the prosecutor abused her discretion by
failing to attempt to overcome J’s alleged disability by serving her with a
material witness subpoena is unpersuasive. At the hearing, the prosecutor
represented that she had concluded that, as of the time of trial, J was unable
to testify due to her disability. Although a material witness subpoena is
an appropriate measure for a prosecutor to take to overcome a witness’
unwillingness to testify, a subpoena cannot overcome an inability to testify.
The defendant’s argument is implicitly premised on the primary argument
that he advances on appeal—the defendant contends that J was not unable,
but unwilling, to testify. As we explained in this opinion, however, it was
not the task of the trial court—and it is certainly not the task of this court—
to second guess the prosecutor’s judgment that J was disabled.
For similar reasons, the defendant’s argument that, as a matter of statutory
interpretation, the prosecutor’s representations were insufficient to support
a finding by the trial court that J was disabled have no bearing on the
resolution of this appeal. First, as we explained in this opinion, the defen-
dant’s argument incorrectly represents the record. The prosecutor did not
rely solely on J’s fear in representing that J suffered from a disability that
prevented her from being able to testify. Second, the trial court properly
made no finding as to whether J was actually disabled. It properly considered
only whether the prosecutor had abused her discretion in entering the nolle.