State v. Richard P., 179 Conn. App. 676

In 2013 the defendant was charged with sexual assault (fourth degree) and two counts of risk of injury to a child based on allegations by two minor children. Protective orders and a guardian ad litem were appointed.
The defendant sought a Franks hearing, and the trial court found portions of the arrest affidavit were recklessly inaccurate but declined to dismiss for lack of probable cause.
In May 2016 the state entered a nolle prosequi after the children and their mother relocated to London and the mother sent a letter refusing further contact and stating they would not return.
The defendant moved to dismiss under Conn. Gen. Stat. § 54-56b (statute limiting nolle prosequi when accused objects unless prosecutor represents that a material witness has died, disappeared, or become disabled).
The trial court granted dismissal, finding the state had not shown the material witnesses had died, disappeared, or become disabled but were instead unwilling to assist.
The state appealed, arguing (1) the children had “become disabled” because they were legally unable to be compelled to return from England, and (2) the children had “disappeared” within the meaning of § 54-56b because they were beyond the reach of process and not expected to return.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Richard)	Held
Whether “has . . . become disabled” in § 54-56b includes witnesses who are beyond the state’s power to compel (i.e., legally unable to return from abroad)	Phrase should be read to encompass legal unavailability — i.e., witnesses the state cannot compel to attend trial (synonymous with “unavailable”)	Phrase refers to physical or mental incapacity (passive event beyond witness control); relocation voluntarily beyond reach does not qualify	Court held the phrase does not extend to witnesses who are merely beyond reach of process or voluntarily refuse to return; statute does not use “unavailable” so cannot be read that broadly
Whether “disappeared” in § 54-56b covers witnesses whose location is known but who are beyond legal process and not expected to return	“Disappeared” should include absence from jurisdiction when witness cannot be compelled and won’t return	“Disappeared” means to pass out of sight/vanish; known location and lack of concealment contradict “disappeared”	Court held “disappeared” should not be construed as mere absence from jurisdiction or being beyond process when location is known; common meaning requires vanishing from sight

State v. Winer, 286 Conn. 666 (discussion of nolle prosequi and prosecutorial discretion)
State v. Lloyd, 185 Conn. 199 (§ 54-56b limits to nolle prosequi; defendant may demand trial/dismissal except when specified exceptions apply)
State v. Richardson, 291 Conn. 426 (effect of nolle prosequi and need for new prosecution)
State v. Smith, 289 Conn. 598 (addressed “unavailable” witness in dictum; court declined to decide broader statutory meaning)
New Milford Savings Bank v. Jajer, 52 Conn. App. 69 (interpreting statutory “disabled” in different statutory text — distinguished)
Franks v. Delaware, 438 U.S. 154 (basis for defendant’s request for an evidentiary hearing on affidavit veracity)