State v. Richard P.State v. Richard P.
The state appealed to this court from the judgment of the trial court dismissing 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 relocated 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 (
1. The state could not prevail on its claim that the minor children had ‘‘become disabled’’ within the meaning of
2. This court found unavailing the state‘s claim that the term ‘‘disappeared’’ in
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
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
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 misunderstood the other child, whom she thought had reported sexual abuse to her. The police deрartment then conducted an investigation that included a forensic interview of the children by a multi-disciplinary team.
On April 27, 2013, the defendant was arrested pursuant to a warrant and charged with sexual assault in the fourth degree in violation of
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 warrant. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). In that motion, the defendant asserted that the investigating officer intentionally or recklessly had misrepresented the сontent of statements made by the children during the forensic interview of the children.2
Following a review of various submissions by the state and the defendant, the court, Eschuk, J., concluded 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
On May 26, 2016, the state and the defendant appeared befоre 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 reasons 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. Sedensky 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 defendant 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
On appeal, the state claims that, under the circumstances 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 dismissal for two reasons. First, it contends that the children ‘‘had become disabled’’ within the meaning of
I
We begin our analysis with a general discussion
‘‘Until the enactment of General Statutes [
In determining whether to accept the state‘s representation 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
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 prosecutor but instead on the meaning of the language
The following principles governing statutory construction 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 determine, in a reasoned manner, the meaning of the statutory 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
‘‘[S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . . .’’ (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue 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 determined 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-
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 contends that the statutory phrase ‘‘has . . . become disabled’’ should be construed to include not only a physical or mental disability that would prevent a witness 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
The state concedes, as it must, that the legislature did not choose to employ the expansive term ‘‘unavailable’’ in
The legislature has included the term ‘‘unavailable’’ with respect to witnesses in other statutes. See, e.g.,
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 Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003). Accordingly, we find it significant that the legislature did not choose to include the term ‘‘unavailable’’ in
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
The state relies on State v. Smith, 289 Conn. 598, 960 A.2d 993 (2008), in support of its assertion that
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 representation 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 wаs ‘‘unavailable’’ because, if called to testify at trial, he was planning to invoke his constitutional privilege against self-incrimination. Id., 606. In deciding the question 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
For these reasons, we decline to acсept the state‘s invitation to import a broad exception for ‘‘unavailable’’ witnesses into
We turn then to the narrower question of whether the statutory phrase ‘‘has . . . become disabled’’ should be interpreted, as the state contends, 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. In this regard, the state argues that because the legislature did not define the phrase ‘‘become disabled,’’ we should ‘‘look to the common understanding of the term as еxpressed in a dictionary.’’ (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, Merriam-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; incapacitate . . . .’’ Random House Webster‘s Unabridged Dictionary (2d Ed. 2001) p. 560. The second definition provided, however, defines ‘‘disable’’ to mean ‘‘to make
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 swallowing up and rendering superfluous the other two exсeptions included by the legislature: death and disappearance.12 Certainly, if a witness has died or disappeared, 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 construed 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
We also find significant that the legislature used the passive phrase ‘‘has . . . become disabled’’ in
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
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 attorney 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
Because the language of
In sum, we conclude that the statutory phrase ‘‘has . . . become disabled’’ in
III
We next address the state‘s claim that the defendant was not entitled to a dismissal of the prosecution
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 fashion that the ‘‘witnesses have passed out of sight and vanished from the state.’’ It also concedes that in ordinary parlance and pursuant to standard dictionary definitions, ‘‘disappeared’’ means ‘‘to pass out of sight either suddenly or gradually; vanish.’’ American Heritage Dictionary of the English Language (New College Edition 1981) p. 374; see also Merriam-Webster‘s Collegiate Dictionary (11th Ed. 2012) p. 355 (‘‘to pass from view’’).
Despite its concessions, the state argues that two cases support its construction of the term ‘‘disappeared.’’ 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
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 sentence 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 ‘‘disappeared,’’ 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
We decline the state‘s invitation to adopt an interpretation 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 profound importance,
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
Because this provision is almost identical to
‘‘(1) the testimony may not be available at the required evidentiary hearing because of physiсal 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.’’
‘‘(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 deposition;
‘‘(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 deposition;
‘‘(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 аbsent 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.’’