STATE OF CONNECTICUT v. RICHARD P.*
(AC 39368)
Lavine, Sheldon and Prescott, Js.
officially released February 13, 2018
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Syllabus
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 become disabled within the meaning of the applicable statute (
- 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 circumstances 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’ attendance 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 attendance at trial. - 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
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 policе 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 department 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 stаte‘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 content of statements made by the children during the forensic interview of the children.2
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 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
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 omitted.) 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 information. Indeed, no criminal matter exists until, and if, the prosecution issues a new information against the dеfendant. . . . 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
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 employed by the legislature in
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, wе 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
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 statе is therefore unable to compel their attendance at trial. 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 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 question of the need for an evidentiary hearing, the court in Smith made clear that it was unnecessary to decide any broаder questions regarding the meaning of the language in
For these reasons, we decline to accept the state‘s invitation to import a broad exception for “unavailable” witnesses into
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 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 whiсh 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 swallowing up and rendering superfluous the other two exceptions 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 аrgument 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
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
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
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 considering the adjoining terms in the policy; id., 308; none of which are present in
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.
* In accordance with our рolicy 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
Notes
Because this provision is almost identical to
“(1) the testimony may not be аvailable 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.”
“(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 dеath 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.”