Opinion
No. CR 07-0212454
November 27, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S DEMAND FOR A TRIAL
In the above captioned matter, the defendant is charged with interfering with an officer in violation of General Statutes § 53a-167a and improper use of a highway in violation of the General Statutes § 53-182. On July 20, 2009, the defendant was brought before the court in regards to a speedy trial motion that he filed pursuant to General Statutes § 54-82c. At the start of the proceeding, the state noted that the defendant was currently serving a sentence of twenty years on a robbery conviction, and that based on the defendant's current sentence it was in the "best discretion of the state" to enter a nolle prosequi for the defendant's pending charges. The defendant objected to the entering of the nolles. The state did not withdraw the offer to nolle the charges and indicated to the court that the nolles were not based on its inability to proceed with the prosecution due to the death, disappearance or disability of a material state's witness, or the disappearance or destruction of material evidence. Because a nolle cannot enter to pending charges against the defendant over his objection without such representations; see General Statutes § 54-56b, Practice Book § 39-30; the court was prepared to dismiss the charges. The defendant, however, objected to the dismissal. The defendant argued that he was entitled to a trial or dismissal under the plain language of General Statutes § 54-56b and Practice Book § 39-30, and that he intended to exercise the choice afforded to him by demanding a trial.
Section 54-82c provides in relevant part:
Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state's attorney or assistant state's attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information.
Section 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 further investigation is therefore necessary.
Section 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.
The court granted defense counsel's request for additional time to brief the issue of whether the defendant, within the context of General Statutes § 54-56b and Practice Book § 39-30, can prevent the court from dismissing the charges and instead demand that the state proceed to trial. A memorandum in support of the defendant's demand for a trial was filed on September 21, 2009. The parties again appeared before the court on September 25, 2009. At that time, the court informed the state that it had until October 16 to reply to the defendant's brief. The state did not file a reply.
For the following reasons, the court denies the defendant's request for a trial and dismisses the charges.
DISCUSSION
The defendant's demand for a trial as opposed to a dismissal presents an issue of statutory interpretation. In construing a statute the court must "determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . . . In seeking to determine that meaning [General Statutes] § 1-2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) State v. Grant, 294 Conn. 151, 157 (2009).
General Statutes § 54-56b 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 . . ." (Emphasis added.) See also Practice Book § 39-30. The statute unambiguously provides a criminal defendant with the right to object to a nolle and demand either a trial or dismissal. See also State v. Curcio, 191 Conn. 27, 36 (1983) (discussing statutory right conferred on the defendant by General Statutes § 54-56b). This right ensures that the charges against a defendant are disposed of with finality. See State v. Talton, 209 Conn. 133, 141 (1988) (there is no reasonable purpose in the enactment of 54-56b other than to give a defendant the right to have a criminal charge disposed of with finality"). Thus, under both the statute and Practice Book, such finality is to be achieved either through a trial of the charges or by their dismissal by the court.
The defendant argues that these provisions afford him not only the right to a final disposition of the charges, but also the right to select the particular means — a trial or a dismissal — by which that disposition will be secured. The court does not agree. Although the statute and Practice Book may each be somewhat imprecise in this regard, the court reads these provisions as granting a defendant only one choice — that of accepting or rejecting the state's offer to nolle the charges. See State v. Smith, 289 Conn. 598, 609-10 (2008) (noting state's broad discretion in seeking to terminate criminal proceedings by a nolle); State v. Lloyd, 185 Conn. 199, 204 (1981) (same). If a defendant accepts the nolle, then the court must enter the nolle and the matter is resolved in that fashion. See Practice Book § 39-31. If, however, a defendant declines the state's offer to nolle the charges and demands a final disposition of the case, then, contrary to the defendant's assertion, it is the state, not the defendant, that determines whether that finality will be brought about by "a trial or dismissal." Upon the defendant's rejection of the nolle, the state may withdraw its offer and proceed to trial on the charges. Alternatively, if the state is of the opinion that a trial of the matter is not in the state's interest, the state may advise the court of that fact and the court will then dismiss the charges. However the state chooses to proceed, the result will ensure that the defendant's case is resolved with the type of finality which the defendant demanded by objecting to and rejecting the state's offer of a nolle.
Section 39-31 provides:
The entry of a nolle prosequi terminates the prosecution and the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated.
As noted earlier, if the state indicates that there is an issue concerning an absent witness or missing evidence; see footnotes 2 and 3 of this opinion; then the charges would not be dismissed and nolles would enter despite the defendant's objection.
The defendant's claim that the statute and Practice Book allow a defendant to elect whether finality will be achieved by a trial or a dismissal fails both for practical and substantive reasons. As the court understands the defendant's argument, he is suggesting that where, as here, a defendant rejects the state's offer of a nolle and the court, after hearing the state's response, is prepared to dismiss the charges, the defendant may reject that dismissal and compel the state to proceed to trial. Not surprisingly, the defendant does not suggest how, in a practical sense, the state could ever be forced to prosecute a case and to conduct a trial after it has indicated its unwillingness to do so.
Pursuant to the defendant's novel claim, however, this court should order just that — that the state prepare its case for trial; appear in court; participate in the jury selection process; call witnesses; cross examine defense witnesses; and advocate in summation for the defendant's conviction — all in a case where the state has determined that the defendant's prosecution is not appropriate in the interests of justice. The defendant does not indicate what the sanction would be if the state refused to participate in the trial process. Presumably, the defendant would not want the charges dismissed, since he rejected such a resolution at the outset. It is therefore an understatement to say that the defendant's proposition would lead to absurd and unworkable results, and this court declines the invitation to compel the state to engage in such charades for the defendant's benefit.
The defendant's claim also lacks substantive merit. According to the defendant's brief, the main concern underlying his demand for a trial is the potential for his prosecution on the charges at some point in the future if they are dismissed at this stage in the proceedings pursuant to General Statutes § 54-56b and Practice Book § 39-30. In other words, the defendant is of the opinion that a dismissal upon his objection to the state's offer to nolle the charges would be equivalent to a dismissal without prejudice. This, however, is not the case.
In State v. Talton, supra, the Connecticut Supreme Court examined the right of a defendant to demand a dismissal under General Statutes § 54-56b. Although there was no helpful legislative history upon which the Court could rely, the Court found it reasonable to assume that the intention in enacting § 54-56b was not to place the defendant in essentially the same position as he would have been had a nolle entered — without a final disposition of the charges lodged against him. State v. Talton, supra, 209 Conn. 141. Consequently, the Court concluded that a dismissal under § 54-56b is "per se a dismissal with prejudice" which "precludes the state from initiating another prosecution for the same offense." Id., 142.
The defendant's concern regarding the potential for another prosecution on the above named charges is therefore unfounded. A dismissal of the charges by the court in the procedural context here will provide the defendant with the finality that he desires and to which he is statutorily entitled.
CONCLUSION
Accordingly, the defendant's request for a trial is denied and the charges against the defendant are dismissed.
In light of this ruling, there is no need for the court to address the merits of the defendant's demand for a speedy trial — a demand reasserted in a letter filed by the defendant with the court on November 13, 2009. The court feels constrained to note, however, that if it were to determine that the defendant's speedy trial rights, under General Statutes § 54-82c, were violated, the court would have no choice but to enter the precise order — an order of dismissal, pursuant to § 54-82d — that the defendant appears to be attempting to avoid.