State v. Malone ( 2023 )

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STATE OF CONNECTICUT v. ERICK MALONE
(SC 20654)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Alexander, Js.
Syllabus
The defendant appealed from the trial court’s denial of his motion to dismiss
a murder charge that the state had reinstituted against him after his
first prosecution was terminated when the trial court accepted the state’s
entry of a nolle prosequi and denied, without prejudice, an earlier motion
to dismiss in the first prosecution. The state had entered the nolle
prosequi pursuant to statute (§ 54-56b) on the basis of the disappearance
of two witnesses the state deemed material to its prosecution of the
defendant. In the second prosecution, which was commenced approxi-
mately eight months after the first prosecution was terminated, the
defendant, in support of his motion to dismiss, claimed, inter alia, that
new evidence detailed in the indictment in the second prosecution estab-
lished that the missing witnesses were not material and that the state
had violated his right to a speedy trial by intentionally delaying the
prosecution. Held:
The trial court’s denial of the defendant’s motion to dismiss the murder
charge in the second prosecution did not constitute a final judgment,
and, accordingly, this court dismissed the defendant’s appeal for lack
of jurisdiction:
This court has consistently held that the denial of a motion to dismiss
based on speedy trial grounds is not a final judgment and does not
constitute an immediately appealable interlocutory ruling under the first
prong of the test set forth in State v. Curcio (191 Conn. 27), as the denial
of a motion to dismiss based on speedy trial grounds does not terminate
the underlying criminal proceedings.
Moreover, the defendant could not prevail on his claim that, because
the trial court in the first prosecution denied his motion to dismiss
without prejudice, the trial court’s denial of the motion to dismiss in the
second prosecution was appealable under the first prong of Curcio, the
defendant having failed to cite authority supporting the proposition that
such a combination of rulings led to the termination of a separate and
distinct proceeding when the state refiled the murder charge against
him and the trial court again declined to dismiss it.
Furthermore, the defendant failed to establish his right to an immediate
appeal under the second prong of Curcio, under which an otherwise
interlocutory ruling is appealable when the ruling so concludes the rights
of the parties that further proceedings cannot affect them, as the defen-
dant could challenge on appeal the denial of his motion to dismiss on
speedy trial grounds if he is convicted, and a reviewing court could find
that his right to a speedy trial was violated, reverse his conviction, and
remand with direction to grant his motion to dismiss, and, therefore,
immediate appellate review was not necessary to prevent the loss of the
defendant’s rights.
Argued December 21, 2022—officially released May 10, 2023*
Procedural History
Substitute information, in the first case, charging the
defendant with the crime of murder, brought to the
Superior Court in the judicial district of Waterbury,
where the court, Hon. Roland D. Fasano, judge trial
referee, accepted the state’s entry of a nolle prosequi
and denied the defendant’s motion to dismiss; there-
after, substitute information in the second case, charg-
ing the defendant with the crimes of murder, reckless
endangerment in the first degree, carrying a pistol with-
out a permit, illegal discharge of a firearm and criminal
possession of a pistol or revolver, brought to the Supe-
rior Court in the judicial district of Waterbury, where
the court, Iannotti, J., denied the defendant’s motion to
dismiss, and the defendant appealed. Appeal dismissed.
Laila M. G. Haswell, senior assistant public defender,
with whom, on the brief, was John Cizik, Jr., senior
assistant public defender, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Terence D. Mariani, Jr., senior assistant state’s
attorney, for the appellee (state).
Opinion
D’AURIA, J. In this interlocutory appeal, the defen-
dant, Erick Malone, asks this court to determine
whether the trial court erroneously denied his motion
to dismiss criminal charges the state has reinstituted
against him after the state previously entered and the
trial court accepted a nolle prosequi on the ground that
the state was unable to locate material witnesses. More
specifically, the defendant claims that the trial court
erred in denying his motion because the state intention-
ally had delayed the prosecution in violation of his right
to a speedy trial. We do not address the merits of this
claim because we agree with the state that the denial
of the defendant’s motion to dismiss does not constitute
a final judgment. Accordingly, we dismiss this appeal
for lack of jurisdiction.
The following facts and procedural history are rele-
vant to this appeal. On January 6, 2017, the defendant
was arrested pursuant to a warrant and charged with
murder in violation of General Statutes § 53a-54a, reck-
less endangerment in the first degree in violation of
General Statutes § 53a-63, carrying a pistol without a
permit in violation of General Statutes § 29-35 (a),
unlawful discharge of a firearm in violation of General
Statutes § 53-203, and criminal possession of a firearm
in violation of § 53a-217c (first prosecution).1 These
charges related to the November 5, 2016 shooting death
of Jahliek Dieudonne. The defendant’s privately retained
counsel, Tara L. Knight, thereafter filed a motion for a
speedy trial, which the court, Crawford, J., granted.
Days later, jury selection began.
After completion of jury selection, but before the jury
was sworn and evidence began, the state sought to
enter a nolle of this prosecution, pursuant to General
Statutes § 54-56b,2 based on the disappearance of two
witnesses. Specifically, the state asserted that the two
witnesses had told the police that they were with the
defendant shortly after Dieudonne’s death and that he
admitted to shooting the victim. The state also repre-
sented that the two witnesses had informed the police
that the defendant said that he needed to get out of
town, specifically, to New York, and that he wanted to
burn his car. One of the two witnesses, the state related,
also had told the police that the defendant gave him
the jacket that the defendant was wearing at the time
of the shooting. The state further represented to the
trial court that it had searched extensively for the two
witnesses, including, but not limited to, visiting all
known addresses, contacting relatives and known asso-
ciates of the witnesses, and surveying the neighbor-
hoods that the witnesses frequented. The state also
asserted that the witnesses were material to the case,
as they were friends of the defendant who had no motive
to fabricate their testimony that the defendant had
admitted to them his responsibility for the shooting.
Knight objected to the entry of a nolle prosequi and
requested, in the alternative, that the court dismiss the
charges or grant a continuance of the trial, although she
did not specify the length of the requested continuance.
Specifically, Knight argued that the state had failed to
establish that the missing witnesses were material to
its case and contended that entering the nolle would
violate the defendant’s constitutional right to a speedy
trial, which he had just exercised by filing a motion for
a speedy trial that the court then granted. As to the
missing witnesses’ materiality, defense counsel argued
that the missing witnesses were not necessary to the
state’s case because another eyewitness was available
to testify, and the state also had consciousness of guilt
evidence it could propound. As to the speedy trial claim,
Knight argued that the first prosecution had been pend-
ing for one and one-half years when the defendant filed
his speedy trial motion, the jury already had been
selected, and evidence was supposed to begin the fol-
lowing day.
The trial court, Hon. Roland D. Fasano, judge trial
referee, accepted the nolle prosequi and denied the
defendant’s motion to dismiss ‘‘without prejudice.’’ In
so ruling, the court stated: ‘‘If, in fact, this case is reinsti-
tuted at some later point, I think there are some signifi-
cant issues as to whether or not that should be allowed,
but, for now, the nolle is noted. . . . The prosecution
is not going forward. The dismissal’s without prejudice,3
so you can raise this again, and that’s where we’ll stand.’’
(Footnote added.) The prosecutor then stated that,
‘‘despite our efforts . . . to locate these people, at this
point, we have no leads that we’re kind of waiting on.
I intend to kind of regroup and see if we can find any
other avenues.’’ The court responded that ‘‘there are a
few issues we’re all concerned about. Whether or not—
there’s a thirteen month limit, whether or not, if you—
if you, at some later date, come up with witnesses,
particularly in the face of a speedy trial and all the
proceedings to this point, there’s some real issues, but
that’s where I’m leaving it right now.’’
Approximately eight months later, the defendant was
rearrested and charged in a new indictment with a single
count of murder (second prosecution). The defendant,
now represented by the Office of the Public Defender,
moved to dismiss the second prosecution, arguing that
new evidence described in the new indictment proved
that the missing witnesses from the first prosecution
were not material because they were not included in
the new arrest warrant. Rather, the state had discovered
the new evidence (a different eyewitness to the crime)
the day after the court accepted the nolle in the first
prosecution. The defendant claimed that the new arrest
warrant showed that the state intentionally had delayed
the prosecution in violation of his right to a speedy
trial. The defendant also claimed that, because of the
state’s delay in the prosecution, he lost the ability to
have the counsel of his choice represent him at trial,
as he could no longer afford to pay Knight, whom he
had hired during the first prosecution.
The trial court, Iannotti, J., denied the motion to
dismiss and, in a memorandum of decision, ruled that
the defendant’s right to a speedy trial was not violated,
as a nolle prosequi leaves a defendant ‘‘free and unen-
cumbered by the nolled charge . . . .’’ (Emphasis omit-
ted; internal quotation marks omitted.); see State v.
Smith, 289 Conn. 598, 611, 960 A.2d 993 (2008). Judge
Iannotti explained that, in terminating the first prosecu-
tion by accepting the nolle prosequi, Judge Fasano was
entitled to rely on the state’s representations that there
were two material witnesses who had disappeared.
Judge Fasano was not required to take evidence or
make findings of fact and was not permitted to substi-
tute his judgment for that of the prosecutor. Judge Ian-
notti also determined that the entry of a nolle in the
first prosecution was not contrary to the manifest public
interest, as the state had clearly established that the
two witnesses were material and could not be located.
Finally, as to the defendant’s right to counsel claim,
Judge Iannotti ruled that the defendant’s right to coun-
sel of choice was not violated, as a defendant may not
insist on representation by an attorney he cannot afford
to pay. The defendant appealed to the Appellate Court,
challenging Judge Iannotti’s denial of his motion to
dismiss the second prosecution.
Before filing his appellate brief, the defendant filed
a motion for permission to file a late appeal of Judge
Fasano’s May 7, 2018 ruling denying his motion to dis-
miss in the first prosecution. The state filed a timely
opposition. We then transferred the defendant’s appeal
of Judge Iannotti’s ruling to this court and assumed
jurisdiction over the defendant’s motion for permission
to file a late appeal. See General Statutes § 51-199 (c)
and Practice Book § 65-1. We took no action on the
defendant’s motion other than to provide the parties in
this appeal the opportunity in their appellate briefs to
supplement the reasons contained in their respective
filings regarding that motion.
In a separate order issued today, this court has denied
the defendant’s motion for permission to file a late
appeal. See State v. Malone, 346 Conn. 1012, ,
A.3d (2023). What remains at issue, therefore, is
only the defendant’s interlocutory appeal challenging
Judge Iannotti’s denial of his motion to dismiss in the
second prosecution. We now dismiss this appeal for a
lack of subject matter jurisdiction because Judge Ian-
notti’s order was not a final judgment.
‘‘[E]xcept insofar as the legislature has specifically
provided for an interlocutory appeal or other form of
interlocutory appellate review . . . appellate jurisdic-
tion is limited to final judgments of the trial court.’’
(Citations omitted; internal quotation marks omitted.)
State v. Garcia, 233 Conn. 44, 63, 658 A.2d 947 (1995),
overruled in part on other grounds by State v. Jacobs,
265 Conn. 396, 828 A.2d 587 (2003). ‘‘In a criminal pro-
ceeding, there is no final judgment until the imposition
of a sentence. . . . The general rule is . . . that inter-
locutory orders in criminal cases are not immediately
appealable.’’ (Citations omitted; internal quotation marks
omitted.) State v. Fielding, 296 Conn. 26, 36, 994 A.2d
96 (2010). However, we have recognized that certain
interlocutory orders may be final judgments for appeal
purposes if they fit within either prong of the test estab-
lished in State v. Curcio, 191 Conn. 27, 31, 463 A.2d
566 (1983). Under Curcio, ‘‘[a]n otherwise interlocutory
order is appealable in two circumstances: (1) [when]
the order or action terminates a separate and distinct
proceeding, or (2) [when] the order or action so con-
cludes the rights of the parties that further proceedings
cannot affect them.’’ Id.In the present case, the state contends that the denial
of the defendant’s motion to dismiss the second prose-
cution was not an appealable final judgment under
either prong of Curcio because the trial court’s denial
of the defendant’s motion to dismiss the second prose-
cution did not terminate the underlying criminal pro-
ceeding, and the defendant has failed to identify a right
that he presently holds in the pending case that will
be irretrievably lost if he is not permitted to appeal
immediately. The defendant counters that Judge Ian-
notti’s ruling constitutes a final judgment because, if
he is not allowed to appeal the trial court’s denial of
his motion to dismiss the second prosecution before
trial, he will face the irreparable harm of being harassed
by the state by being charged again after his speedy
trial rights were granted by the court in the first prosecu-
tion and then taken away by the state through its use
of the missing witness nolle. He also argues that, ‘‘until
jeopardy attaches, this court has jurisdiction to hear
the appeal.’’ We agree with the state that the defendant
has failed to satisfy either prong of Curcio.
We have held that Curcio’s first prong ‘‘demands that
the proceeding [that] spawned the appeal be indepen-
dent of the main action. . . . This means that the sepa-
rate and distinct proceeding, though related to the cen-
tral cause, must be severable therefrom. The question
to be asked is whether the main action could proceed
independent of the ancillary proceeding.’’ (Internal quo-
tation marks omitted.) State v. Bemer, 339 Conn. 528,
537, 262 A.3d 1 (2021). Applying this standard, we have
consistently held that the denial of a motion to dismiss
based on speedy trial grounds is not a final judgment.
See, e.g., State v. Anderson, 318 Conn. 680, 698–99 n.6,
122 A.3d 254 (2015); State v. Parker, 194 Conn. 650,
652 n.4, 485 A.2d 139 (1984); see also United States v.
MacDonald, 435 U.S. 850, 857, 98 S. Ct. 1547, 56 L.
Ed. 2d 18 (1978). Nor is it an immediately appealable
interlocutory ruling under the first prong of Curcio
because the denial of a defendant’s motion to dismiss on
speedy trial grounds does not terminate the underlying
criminal proceedings, as a trial has not yet occurred.
See State v. Ahern, 42 Conn. App. 144, 146, 678 A.2d
975 (1996).
Nevertheless, the defendant argues that, in this case,
because the trial court denied his motion to dismiss
the first prosecution without prejudice, that matter was
not finally concluded until the trial court denied his
motion to dismiss the second prosecution. The denial
of the motion to dismiss the second prosecution, he
contends, ‘‘terminate[d] a separate and distinct pro-
ceeding,’’ permitting an interlocutory appeal under the
first prong of the Curcio test. We are not persuaded by
this novel argument, which appears to be no more than
an attempt to use this appeal to revive his claim that
Judge Fasano erroneously denied his earlier motion to
dismiss the first prosecution. The defendant could have
appealed the entry of the nolle when Judge Fasano
accepted it in the first prosecution and at the same time
denied the defendant’s motion to dismiss the murder
charge. See State v. Lloyd, 185 Conn. 199, 207, 440 A.2d
867 (1981) (‘‘[a]lthough no immediate appeal would
ordinarily lie solely from the entry of a nolle prosequi
. . . or solely from the denial of a speedy trial claim
. . . this case is different’’ (citations omitted)). He did
not appeal, however, and this court today denied his
motion for permission to file a late appeal that ruling
for failure to establish good cause. See State v. Malone,
supra, 346 Conn. .
The defendant cites no authority for the proposition
that this combination of rulings—the trial court’s accep-
tance of the nolle and the denial of the motion to dismiss
the first murder prosecution ‘‘without prejudice’’—
leads somehow to the termination of a separate and
distinct proceeding under the first prong of Curcio
when the state refiled the murder charge against him
and the trial court again declined to dismiss it. The
defendant appears to argue that this ‘‘separate and dis-
tinct’’ proceeding remained pending during the eight
months between the trial court’s acceptance of the nolle
of the first prosecution and the state’s commencement
of the second prosecution against him. Like the defen-
dant, we know of no support for this position. Thus,
we once again hold that the denial of a motion to dismiss
on speedy trial grounds is not a final judgment under
the first prong of Curcio. See State v. Anderson, supra,
318 Conn. 698–99 n.6.
As for the second prong of Curcio, an otherwise
interlocutory appeal is reviewable ‘‘[when] the order or
action so concludes the rights of the parties that further
proceedings cannot affect them.’’ State v. Curcio, supra,191 Conn. 31. The second prong of Curcio focuses on
‘‘the potential harm to the appellant’s rights. A presen-
tence order will be deemed final for purposes of appeal
only if it involves a claimed right the legal and practical
value of which would be destroyed if it were not vindi-
cated before trial.’’ (Internal quotation marked omit-
ted.) Id., 33–34. But when the underlying claim involves
the defendant’s right to a speedy trial, the second prong
of Curcio is not satisfied because, if the defendant is
found guilty and sentenced, he can then appeal the
court’s denial of his motion to dismiss on speedy trial
grounds. See State v. Ahern, supra, 42 Conn. App. 146–47
(distinguishing for Curcio purposes right to speedy trial
from right to be free from double jeopardy, which
includes guarantee against being put to trial twice for
same offense). An appellate court can find that his right
to a speedy trial had been violated, reverse his convic-
tion, and remand the case to the trial court with direc-
tion to grant the defendant’s motion to dismiss. As a
result, the defendant’s rights in this case are not so
concluded that further proceedings cannot affect him.
The defendant’s rights can be vindicated on appeal, and,
therefore, ‘‘immediate appellate review is not necessary
to prevent the loss of the rights involved.’’ Id.; see also
State v. Anderson, supra, 318 Conn. 698–99 n.6.
Despite this well established case law, the defendant
argues that he faced irreparable harm when the state
recharged him after the trial court accepted the nolle
in the first prosecution. He contends that the state’s
actions contravene the purpose of the missing witness
nolle statute, which he explains is intended ‘‘to prevent
harassment of a defendant by charging, dismissing, and
[recharging] without placing a defendant in jeopardy.’’
United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert.
denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.
Ct. 1767, 14 L. Ed. 2d 700 (1965). This argument is one
that the defendant may seek to raise on appeal if he is
convicted after trial, however. Although the first prose-
cution is terminated, that does not mean that the defen-
dant cannot raise a speedy trial claim on appeal from
the second prosecution. If he does, nothing prevents
him from maintaining that the state’s actions in the first
prosecution should inform any appellate review of the
trial court’s rejection of his speedy trial claim in the
second prosecution. We express no opinion about the
strength of such an argument, but the fact that he can
seek to raise it rebuts any argument that the defendant
faces irreparable harm if this court does not address
the trial court’s denial of his motion to dismiss the second
prosecution.
Because the defendant has failed to satisfy either prong
of Curcio, we dismiss the appeal for lack of jurisdiction.
The appeal is dismissed.
In this opinion the other justices concurred.
* May 10, 2023, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
In a substitute information, the state later charged the defendant with a
single count of murder. The court file of the first prosecution was mistakenly
deemed erased and destroyed, but the trial court granted the defendant’s
motion to reconstruct the file and to restore it as a public record.
2
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.’’
3
The trial court clearly must have meant that its denial of the defendant’s
motion to dismiss was without prejudice, as it was not dismissing the case.