State v. Richard P. , 179 Conn. App. 676 ( 2018 )

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STATE OF CONNECTICUT v. RICHARD P.*
(AC 39368)
Lavine, Sheldon and Prescott, Js.
Syllabus
The state appealed to this court from the judgment of the trial court dismiss-
ing its charges against the defendant of sexual assault in the fourth
degree and risk of injury to a child in connection with his alleged physical
and sexual abuse of his minor children. Prior to trial, the state informed
the court that it was entering a nolle prosequi because the children’s
mother had sent a letter indicating that she and the children had relo-
cated to London, England, and would not be returning to the United
States, and, thus, that they were beyond the reach of the state’s power
to compel their attendance at trial. The children’s mother also requested
that the state not contact her further. The court noted the nolle prosequi
and granted the defendant’s motion to dismiss the charges, concluding
that the state had not sufficiently represented that a material witness
had died, disappeared or became disabled within the meaning of the
applicable statute (§ 54-56b). The court determined that the mother and
the children were material witnesses who were not unavailable but who,
instead, were unwilling to assist the state. On the granting of permission,
the state appealed to this court. Held:
1. The state could not prevail on its claim that the minor children had
‘‘become disabled’’ within the meaning of § 54-56b because their mother
took them back to their native England and, thus, as a result of their
age and location, they lacked the legal ability to return to Connecticut
and their attendance at trial could not be compelled by the state; the
state’s claim that § 54-56b should be interpreted to apply in circum-
stances where a material witness is ‘‘unavailable’’ was unavailing, as
the legislature, having used ‘‘unavailable’’ in other statutes, chose not
to use it in § 54-56b or to explicitly express its intent, as it has in other
statutes, to include circumstances in which a witness is beyond the
reach of process, which indicated that it intended to sweep less broadly
when it chose not to include the term unavailable in § 54-56b, and this
court rejected the state’s claim that the statutory phrase ‘‘has . . .
become disabled’’ should be interpreted to include circumstances in
which a witness cannot be compelled to testify for reasons that extend
beyond any physical or mental disability of the witness, as such an
expansive definition would risk rendering superfluous the other two
exceptions in § 54-56b, namely, death and disappearance, the passive
nature of the phrase was not suggestive of a process in which an event
or condition stripped the state of its ability to compel a witness’ atten-
dance at trial, and the statutory language did not apply to the factual
circumstances here, where the children, through their mother, decided
not to cooperate in the prosecution of this matter by voluntarily placing
themselves beyond the reach of the state’s ability to compel their atten-
dance at trial.
2. This court found unavailing the state’s claim that the term ‘‘disappeared’’
in § 54-56b should be construed to mean absence from the jurisdiction
and to include circumstances in which the state knows the location of
a witness but the witness is beyond the reach of legal process to compel
his or her attendance at trial and the witness is not expected to return
to the jurisdiction; such a construction would do violence to the common
and ordinary meaning of ‘‘disappeared,’’ the children here did not vanish
from sight, as their location was known to the state and they were not in
hiding, and this court was confined to the statute as it is presently written.
Argued October 5, 2017—officially released February 13, 2018
Procedural History
Information charging the defendant with two counts
of the crime of risk of injury to a child and one count
of the crime of sexual assault in the fourth degree,
brought to the Superior Court in the judicial district
of Danbury, where the court, Eschuk, J., denied the
defendant’s motion for a hearing to challenge a certain
affidavit; thereafter, the state entered a nolle prosequi
as to all charges; subsequently, the court, Russo, J.,
granted the defendant’s motion to dismiss and rendered
judgment thereon, from which the state, on the granting
of permission, appealed to this court. Affirmed.
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).
Opinion
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, there-
fore, 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 misunder-
stood the other child, whom she thought had reported
sexual abuse to her. The police department then con-
ducted an investigation that included a forensic inter-
view of the children by a multi-disciplinary team.
On April 27, 2013, the defendant was arrested pursu-
ant 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 war-
rant. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct.
2674, 57 L. Ed. 2d 667 (1978). In that motion, the defen-
dant asserted that the investigating officer intentionally
or recklessly had misrepresented the content of state-
ments made by the children during the forensic inter-
view of the children.2
Following a review of various submissions by the
state and the defendant, the court, Eschuk, J., con-
cluded 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 prob-
able 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 rea-
sons 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. Seden-
sky 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 defen-
dant 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 circum-
stances 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 dis-
missal for two reasons. First, it contends that the chil-
dren ‘‘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
I
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 omit-
ted.) 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 informa-
tion. 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 dis-
cretion. 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 prose-
cuting official that a material witness has died, disap-
peared or become disabled or that material evidence
has disappeared or been destroyed and that a further
investigation is therefore necessary.’’ (Citations omit-
ted; 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 represen-
tation 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 prosecu-
tor 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 construc-
tion 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 con-
struction 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 deter-
mine, in a reasoned manner, the meaning of the statu-
tory 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 con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing 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 reason-
able interpretation.’’ (Internal quotation marks omit-
ted.) 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 omit-
ted.) Housatonic Railroad Co. v. Commissioner of Rev-
enue 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 deter-
mined 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 than
one plausible interpretation.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Jackson, 153
Conn. App. 639, 643–44, 103 A.3d 166 (2014), cert.
denied, 315 Conn. 912, 106 A.3d 305 (2015).
II
We first address the state’s assertion that the minor
children have ‘‘become disabled’’ within the meaning
of the statute because their mother took them back to
their native England and thus, as a result of their age
and location, they lack the legal ability to return to
Connecticut and the state is therefore unable to compel
their attendance at trial.7 In other words, the state con-
tends that the statutory phrase ‘‘has . . . become dis-
abled’’ should be construed to include not only a
physical or mental disability that would prevent a wit-
ness from testifying, but also a ‘‘legal’’ disability that
would prevent the state from compelling the witness
to testify. In advancing this assertion, the state argues
that the phrase ‘‘has . . . become disabled’’ should be
construed to be synonymous with ‘‘has . . . become
unavailable,’’ as that term is typically used in related
contexts regarding witnesses.
We begin with the words of § 54-56b, which provides
in relevant part: ‘‘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 prose-
cutions 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 . . . .’’8
The state concedes, as it must, that the legislature
did not choose to employ the expansive term ‘‘unavail-
able’’ in § 54-56b. The phrase ‘‘unavailable’’ is a term of
art when used with respect to witnesses, although its
meaning often varies depending on the circumstances
in which it is used. See, e.g., Conn. Code Evid. § 8-6,
commentary (‘‘At common law, the definition of
unavailability varied with the individual hearsay excep-
tion. . . . Section 8-6 eschews a uniform definition of
unavailability.’’ [Citations omitted.]); Practice Book
§ 43-40 (2) (for purposes of calculating speedy trial
deadline, ‘‘any essential witness shall be considered
unavailable whenever such person’s whereabouts are
known but his or her presence for trial cannot be
obtained by due diligence or he or she resists appearing
at or being returned for trial’’); Practice Book§ 23-39;9
see also Practice Book § 40-56;10 Fed. R. Evid. 804 (a).11
The legislature has included the term ‘‘unavailable’’
with respect to witnesses in other statutes. See, e.g.,
General Statutes §§ 54-86l, 52-180, 52-148b (b) (1), 46b-
129 (k) (4) and (5), and 17a-11 (f) (5). Presumably, it
chose not to do so when it enacted § 54-56b. ‘‘[A] court
must construe a statute as written. . . . Courts may
not by construction supply omissions . . . or add
exceptions merely because it appears that good reasons
exist for adding them. . . . The intent of the legisla-
ture, as this court has repeatedly observed, is to be
found not in what the legislature meant to say, but in
the meaning of what it did say. . . . It is axiomatic that
the court itself cannot rewrite a statute to accomplish
a particular result. That is a function of the legislature.’’
(Internal quotation marks omitted.) Doe v. Norwich
Roman Catholic Diocesan Corp., 279 Conn. 207, 216,
901 A.2d 673 (2006).
This rule of statutory construction has been applied
vigorously in instances in which the legislature has
repeatedly employed a term in other statutes, but did
not use it in the provision to be construed. As our
Supreme Court stated in Viera v. Cohen, 283 Conn.
412, 431, 927 A.2d 843 (2007), ‘‘we underscore that the
legislature frequently has used the term withdrawal.
. . . Typically, the omission of a word otherwise used
in the statutes suggests that the legislature intended
a different meaning for the alternate term.’’ (Citation
omitted; internal quotation marks omitted.) ‘‘Where a
statute, with reference to one subject contains a given
provision, the omission of such provision from a similar
statute concerning a related subject . . . is significant
to show that a different intention existed.’’ (Internal
quotation marks omitted.) Hatt v. Burlington Coat Fac-
tory, 263 Conn. 279, 310, 819 A.2d 260 (2003). Accord-
ingly, we find it significant that the legislature did not
choose to include the term ‘‘unavailable’’ in § 54-56b.
Moreover, in other statutes concerning witnesses, the
legislature explicitly has expressed its intent to include
circumstances in which a witness is beyond the reach
of process, or cannot be found, and thus cannot be
compelled to testify. For example, in General Statutes
§ 52-160, the legislature provided that ‘‘[i]f any witness
in a civil action is beyond the reach of the process of
the courts of this state, or cannot be found . . . [a
transcript of his or her recorded testimony in] a former
trial of the action . . . shall be admissible in evidence,
in the discretion of the court . . . .’’ Presumably, the
legislature chose not to employ the same or similar
language in § 54-56b, thereby indicating an intent that
§ 54-56b sweep less broadly.
The state relies on State v. Smith, 289 Conn. 598, 960
A.2d 993 (2008), in support of its assertion that § 54-
56b should be interpreted to apply in circumstances
where a material witness is ‘‘unavailable.’’ Specifically,
the state relies on the following statement by our
Supreme Court in Smith: ‘‘Section 54-56b allows the
entry of a nolle prosequi upon a representation to the
court by the prosecuting official that a material witness
is unavailable to testify.’’ (Internal quotation marks
omitted.) Id., 609. This statement, however, is undeni-
ably dictum.
In Smith, the court was asked to decide the specific
question of whether the trial court must conduct an
evidentiary hearing before accepting the state’s repre-
sentation as to the reasons why it was choosing to enter
a nolle prosequi. Id. The prosecutor in that case had
represented to the trial court that a witness was
‘‘unavailable’’ because, if called to testify at trial, he
was planning to invoke his constitutional privilege
against self-incrimination. Id., 606. In deciding the ques-
tion of the need for an evidentiary hearing, the court
in Smith made clear that it was unnecessary to decide
any broader questions regarding the meaning of the
language in § 54-56b or Practice Book § 39-30 by noting
that ‘‘the defendant does not dispute that [the witness’]
invocation of this privilege falls within [these provi-
sions], only that the trial court improperly relied on the
state’s representation as evidence.’’ Id., 609 n.16. The
court in Smith never analyzed the relevant language in
the statute and rules of practice but merely assumed
without deciding that the witness’ ‘‘unavailability’’ fell
within the language of these provisions. Accordingly,
the decision in Smith does not advance the state’s con-
struction of the statute.
For these reasons, we decline to accept the state’s
invitation to import a broad exception for ‘‘unavailable’’
witnesses into § 54-56b. We must presume from the
legislature’s use of the term ‘‘unavailable’’ in other sec-
tions of the General Statutes that the legislature
intended to sweep less broadly when it chose not to
include the term ‘‘unavailable’’ in § 54-56b.
We turn then to the narrower question of whether the
statutory phrase ‘‘has . . . become disabled’’ should
be interpreted, as the state contends, to include circum-
stances in which a witness cannot be compelled to
testify for reasons that extend beyond any physical or
mental disability of the witness. In this regard, the state
argues that because the legislature did not define the
phrase ‘‘become disabled,’’ we should ‘‘look to the com-
mon understanding of the term as expressed in a dic-
tionary.’’ (Internal quotation marks omitted.) State v.
Agron, 323 Conn. 629, 635, 148 A.3d 1052 (2016).
Unsurprisingly, resort to dictionary definitions does
not yield an easy or uniform answer. For example, Mer-
riam-Webster’s Collegiate Dictionary defines ‘‘disabled’’
to mean ‘‘incapacitated by illness or injury.’’ Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2012) p. 355.
Webster’s Unabridged Dictionary defines ‘‘disable,’’
when used as a verb, to mean ‘‘1. to make unable or
unfit; weaken or destroy the capability of; cripple; inca-
pacitate . . . .’’ Random House Webster’s Unabridged
Dictionary (2d Ed. 2001) p. 560. The second definition
provided, however, defines ‘‘disable’’ to mean ‘‘to make
legally incapable.’’ Id. Black’s Law Dictionary defines
‘‘disable’’ to mean: ‘‘to take away the ability of, to render
incapable of proper and effective action.’’ Black’s Law
Dictionary (5th Ed. 1979) p. 416. Both the defendant and
the state attempt to ‘‘cherry-pick’’ dictionary definitions
that they contend support their respective positions,
but, in our view, resort to dictionary definitions does
not yield a clear or obvious answer, and the meaning
of ‘‘disabled’’ often varies significantly depending on
the context in which it is used.
The essence of the state’s argument is that, by
employing the phrase, ‘‘has . . . become disabled,’’ the
legislature intended that the defendant not be entitled
to a dismissal following the entry of a nolle prosequi
in any instance in which a material witness in the case
cannot be compelled by the state to testify. Such an
expansive definition of that phrase, however, risks swal-
lowing up and rendering superfluous the other two
exceptions included by the legislature: death and disap-
pearance.12 Certainly, if a witness has died or disap-
peared, the state will be unable to compel his or her
testimony because it will be unable to serve a subpoena
on that witness.13
Moreover, the state’s proffered definition of the
phrase ‘‘has . . . become disabled’’ simply is, in our
view, an alternative argument why it should be con-
strued to mean ‘‘has . . . become unavailable’’ as that
phrase is often used with respect to witnesses. For the
reasons we previously have stated, however, we find
it significant that the legislature has used the term
‘‘unavailable’’ in other statutes but has not chosen to
use it in § 54-56b.
We also find significant that the legislature used the
passive phrase ‘‘has . . . become disabled’’ in § 54-56b.
In our view, this language suggests that the process by
which the witness became disabled was one in which
an event or condition beyond the voluntary choice of
the witness or his guardian not to cooperate with the
state now prevents that witness from being able to
testify in the matter. Stated another way, the language
is not suggestive of a process in which an event or
condition has stripped the state of its ability to compel
the witness’ attendance at trial. In this case, the children
(through their mother) have decided not to cooperate
in the prosecution of this matter by voluntarily placing
themselves beyond the reach of the state’s ability to
compel their attendance at trial.14 The state’s assertion
that the legislature intended to include such a factual
circumstance within the statutory exception by
employing the phrase ‘‘has . . . become disabled’’ is
simply not persuasive.
Finally, the state’s reliance on New Milford Savings
Bank v. Jajer, 52 Conn. App. 69, 726 A.2d 604 (1999), is
misplaced. In New Milford Savings Bank, a foreclosure
action, this court was tasked with construing General
Statutes § 52-235b, which provides: ‘‘If, prior to judg-
ment, an attorney for any reason ceases to be a member
of the bar or becomes physically or mentally incapaci-
tated or otherwise disabled so as to prevent him from
appearing in court in an action in which he has appeared
for a client, further proceedings shall not be taken in
the action against the client, without leave of the court,
until thirty days after notice to appear in person or by
another attorney has been served upon the client either
personally or in such manner as the court directs.’’
(Emphasis added.)
The defendant argued in New Milford Savings Bank
that the trial court should not have rendered a judgment
of foreclosure in that case. There, the defendant’s attor-
ney was unable to attend the trial in the foreclosure
matter because he was obligated to appear at a hearing
before another Superior Court that was considering
whether to suspend him from the practice of law after
he pleaded guilty to a felony charge in federal court.
New Milford Savings Bank v. Jajer, supra, 52 Conn.
App. 76–83. Under those circumstances, the defendant
in the foreclosure matter argued that his lawyer had
been ‘‘ ‘otherwise disabled’ ’’ within the meaning of § 52-
235b; id., 77; and therefore the trial should have been
stayed. Id., 77–78. This court agreed, concluding that the
statute applied to circumstances beyond the physical
or mental disability of an attorney to include a circum-
stance in which the attorney was obligated to attend
his own suspension hearing. Id., 81–83.
Because the language of § 52-235b is critically differ-
ent from the language in § 54-56b, we conclude that
this court’s decision in New Milford Savings Bank does
not support the state’s construction of § 54-56b in the
present case. The language of § 52-235b is fundamen-
tally different from that of § 54-56b because it includes
by direct reference a ‘‘physical or mental’’ incapacity
and then explicitly adds language, not present in § 54-
56b, that extends its reach beyond physical or mental
infirmities to include other forms of disability. Indeed,
the decision in New Milford Savings Bank supports
the defendant’s arguments in this case because it pro-
vides yet another example of a situation in which the
legislature has expressed an intent to expand the cover-
age of a statute to circumstances beyond those involv-
ing only a physical or mental disability. The legislature
did not do so in § 54-56b.
In sum, we conclude that the statutory phrase ‘‘has
. . . become disabled’’ in § 54-56b was not intended to
extend to instances in which the state lacks the ability
to compel a witness to testify at trial. Accordingly, we
are not persuaded by the state’s first claim.
III
We next address the state’s claim that the defendant
was not entitled to a dismissal of the prosecution
because it had sufficiently represented that material
witnesses (the children) had ‘‘disappeared’’ within the
meaning of § 54-56b. Specifically, the state argues that
the term ‘‘disappeared’’ must be construed to include
circumstances in which the state knows the location
of a witness but the witness is beyond the reach of
legal process to compel his or her attendance at trial,
and he or she is not expected to return to the jurisdic-
tion. This claim does not warrant much discussion.
In pressing this claim, the state concedes that it
knows the precise location of the witnesses. Despite
this concession, the state argues in a contradictory fash-
ion that the ‘‘witnesses have passed out of sight and
vanished from the state.’’ It also concedes that in ordi-
nary parlance and pursuant to standard dictionary defi-
nitions, ‘‘disappeared’’ means ‘‘to pass out of sight either
suddenly or gradually; vanish.’’ American Heritage Dic-
tionary of the English Language (New College Edition
1981) p. 374; see also Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2012) p. 355 (‘‘to pass from view’’).
Despite its concessions, the state argues that two
cases support its construction of the term ‘‘disap-
peared.’’ First, it relies on this court’s decision in State
v. Maiocco, 5 Conn. App. 347, 354 n.7, 498 A.2d 125,
cert. denied, 197 Conn. 819, 501 A.2d 388 (1985), in
which this court stated with respect to a witness: ‘‘Since
[the witness’] location was known and his return was
expected within three weeks, it cannot be said that he
had disappeared.’’ From this sentence, the state argues
that if ‘‘the witness’ location in Maiocco had been
known, but he had not been expected to return, then,
extrapolating from Maiocco, he arguably would have
qualified as having ‘disappeared’ within the purview of
§ 54-56b.’’
Maiocco is not entitled to the weight the state places
on it. First, the state concedes that this statement was
dictum, because the issue in that case was whether the
trial court properly dismissed the case due to the state’s
failure to be prepared for trial. Second, the single sen-
tence relied on by the state is unclear and ambiguous
because it is impossible to determine from that sentence
whether, in finding that the witness had not ‘‘disap-
peared,’’ the court relied on the fact that (1) the witness’
location was known, (2) the witness was expected to
return, or (3) a combination of those two facts.
We are also unpersuaded by the state’s citation to an
out-of-state case, Swindler v. St. Paul Fire & Marine
Ins. Co., 223 Tenn. 304, 444 S.W.2d 147 (1969), for the
proposition that something has disappeared simply
because it cannot be retrieved. That case involved the
‘‘ ‘disappearance’ ’’ of money, not a witness in a criminal
case. Id., 306. Moreover, the court in Swindler was
engaged in the interpretation of an insurance policy; id.,
307; not a statute, and emphasized that its conclusion
regarding the meaning of that term was reached after
considering the adjoining terms in the policy; id., 308;
none of which are present in § 54-56b. Accordingly,
Swindler is inapposite.
We decline the state’s invitation to adopt an interpre-
tation of the term ‘‘disappeared’’ that would define it
as absence from the jurisdiction. Such a construction
would do violence to the common and ordinary meaning
of the term. The children here have not vanished from
sight. Their location is known to the state, and they are
not in hiding.
Although we agree with the state as a general matter
that protecting children from sexual abuse is of pro-
found importance, § 54-56b applies to all criminal prose-
cutions and it is not our role to torture its provisions
simply because the state alleges sexual misconduct
against children in this case. If the legislature wants to
broaden the exceptions for this type of case, or for any
other criminal matters, it may choose to do so. This
court, however, is confined to the statute as it is pres-
ently written.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of
alleged victims of sexual abuse and the crime of risk of injury to a child,
we decline to identify the alleged victim or others through whom the alleged
victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The court granted the state permission to appeal pursuant to General
Statutes § 54-96.
2
The defendant asked that any factual finding made by the trial court
after conducting a Franks evidentiary hearing be considered in deciding
his motion to dismiss for lack of probable cause.
3
In her five page letter, the children’s mother sets forth a number of
criticisms regarding the manner in which the state conducted its investiga-
tion of this case, and in particular, with the forensic interviews of the
children. The concluding paragraph of the letter provides: ‘‘I want you to
stop hurting my family. We have gone through two police investigations
and two [Department of Children and Families]/social services investigations
as well as years of intimidation, threats, and mistreatments by authorities
in CT, plus the devastating impact of the case. The children have settled
permanently into life in the UK after moving back to our home in London
in September, and they have the basic right to have something left of their
childhoods with their father. This case has also harmed my youngest son,
whom we have just found out is autistic. Our family has needed extra
support; instead you have gone out of your way to hurt us. Please do not
contact me again.’’
4
For the reasons we explain in this opinion, we disagree with the trial
court’s broad use of the term ‘‘unavailable’’ in this context, but agree that
the state failed to establish that a material witness had died, disappeared
or become disabled within the meaning of the statute.
5
We disagree with the defendant’s assertion that the state failed to pre-
serve these claims on appeal because it initially had argued only that the
witnesses were ‘‘unavailable’’ and had not relied on the statutory language
that the witnesses were ‘‘disabled’’ or had ‘‘disappeared.’’ The state, in its
memorandum of law filed on June 7, 2016, specifically briefed the meaning
of those statutory terms and the relevant case law. It is also apparent that
the trial court, in rejecting the state’s claim, understood that the state was
relying on the statutory language when it had argued that the witnesses
were ‘‘disabled’’ or had ‘‘disappeared.’’
6
It is true that the court in Lloyd also stated that ‘‘[g]ood faith disagree-
ments about what constitutes disability do not demonstrate a manifest abuse
of prosecutorial discretion.’’ State v. Lloyd, supra, 185 Conn. 205. Read in
context, we view this language as a reference to good faith factual disputes
regarding whether a particular witness is disabled. We do not read the
language as imposing an obligation on the court to defer to the prosecutor’s
interpretation of the meaning of § 54-56b.
7
The state argues on appeal that only the children have ‘‘become disabled’’
in this case. The state does not advance the same argument regarding the
children’s mother despite the fact that she, too, is presumably beyond the
reach of the state’s power to compel her attendance at trial.
8
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.’’
Because this provision is almost identical to § 54-56b and neither party
argues that the two provisions should be interpreted differently, we confine
our analysis to the language of § 54-56b.
9
Practice Book § 23-39 provides: ‘‘(a) Upon leave of the judicial authority,
the testimony of any person may be taken by deposition if the testimony
will be required at an evidentiary hearing and it appears:
‘‘(1) the testimony may not be available at the required evidentiary hearing
because of physical or mental illness or infirmity of the witness; or
‘‘(2) the witness resides out of this state and cannot be compelled to
attend and give testimony; or
‘‘(3) the witness may otherwise be unavailable to testify at the required
evidentiary hearing.
‘‘(b) The admissibility of deposition testimony shall be governed by the
rules of evidence.’’
10
Practice Book § 40-56 provides: ‘‘(a) ‘Unavailable’ as used in Section
40-46 includes situations in which the deponent:
‘‘(1) Is exempted by a ruling of the judicial authority on the ground of
privilege from testifying concerning the subject matter of his or her depo-
sition;
‘‘(2) Persists in refusing to testify concerning the subject matter of his or
her deposition despite an order of the judicial authority to do so;
‘‘(3) Testifies to a lack of memory of the subject matter of his or her depo-
sition;
‘‘(4) Is unable to be present or to testify at a trial or hearing because of
his or her death or physical or mental illness or infirmity; or
‘‘(5) Is absent from the trial or hearing and the proponent of his or her
deposition has been unable to procure his or her attendance by subpoena
or by other reasonable means.
‘‘(b) A deponent is not unavailable as a witness if his or her exemption,
refusal, claim of lack of memory, inability, or absence is the result of the
procurement or wrongdoing by the proponent of his or her deposition for
the purpose of preventing the witness from attending or testifying.’’
11
Most often, the issue of whether a witness is unavailable arises with
respect to the admissibility of hearsay evidence in a court proceeding. Prior
to the adoption of the Connecticut Code of Evidence, our Supreme Court
cited with approval the types of unavailability listed in § 804 of the Federal
Rules of Evidence. See, e.g., State v. Bryant, 202 Conn. 676, 694, 523 A.2d
451 (1987). Section 804 (a) of those rules provides in relevant part: ‘‘A
declarant is considered to be unavailable as a witness if the declarant: (1)
is exempted from testifying about the subject matter of the declarant’s
statement because the court rules that a privilege applies; (2) refuses to
testify about the subject matter despite a court order to do so; (3) testifies
to not remembering the subject matter; (4) cannot be present or testify at
the trial or hearing because of death or a then-existing infirmity, physical
illness, or mental illness; or (5) is absent from the trial or hearing and the
statement’s proponent has not been able, by process or other reasonable
means, to procure . . . [the declarant’s attendance and/or testimony].’’ Fed.
R. Evid. 804 (a).
12
Indeed, the state conceded at oral argument before this court that, at
least under the circumstances of this case, the term disappeared and the
phrase ‘‘has . . . become disabled’’ are synonymous.
13
‘‘[T]here is no helpful [legislative] history pinpointing the intent of the
legislature in enacting § 54-56b . . . .’’ State v. Talton, 209 Conn. 133, 141,
547 A.2d 543 (1988).
14
At oral argument before this court, the state argued that even if the
material witness was an adult, the fact that the witness was beyond the
reach of state’s ability to compel attendance at trial, the statutory exception
would still be satisfied. Thus, the state’s argument does not truly turn on
the fact that the children lack the legal ability to decide to return to the
United States and testify in this matter. Moreover, there is nothing in this
record, including any representation by the state, that the children wish to
testify in this case and that their mother is the sole impediment to obtaining
their testimony.