Opinion
H15NCR180698275T H15NCR1906321308S H15NCR180264758T
01-22-2020
State of Connecticut v. Junior Jumpp
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Keegan, Maureen M., J.
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS AND MOTION TO DISQUALIFY PROSECUTOR
Keegan, J.
On December 9, 2019, the defendant filed three motions to dismiss pursuant to Practice Book § 41-8 and General Statutes § 54-56, and a "motion to disqualify prosecutor." Argument was heard on January 6, 2020.
In docket number CR18-0698275-T, the defendant alleges insufficient cause to justify the continuing of the prosecution and a defect in the institution of the prosecution. He also alleges that there is a due process violation. His argument is that the State’s Attorney for the Hartford Judicial District reviewed the arrest warrant in this case, where the alleged victim was an assistant state’s attorney in Manchester.
Practice Book § 41-8 states in pertinent part that "[t]he following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information (5) Insufficiency of ... cause to justify the bringing or continuing of such information or the placing of the defendant on trial." However, Practice Book § 41-9 states in pertinent part that "[n]o defendant ... who has been arrested pursuant to a warrant may make a motion under subdivisions (5) or (9) of Section 41-8. Therefore, the defendant’s claim of insufficient cause pursuant to the Practice Book is denied.
The defendant also raises the claim of insufficient cause under General Statutes § 54-56. "As our Supreme Court has explained, a trial court is empowered to dismiss a case for insufficient cause under § 54-56 only in the most compelling of circumstances ... Because discretionary prosecutorial decisions, including the decision whether to proceed to trial, ordinarily are unreviewable by the court absent a showing of prosecutorial impropriety, the power to render a dismissal under § 54-56 for insufficient cause is to be sparingly exercised and then only with great caution and awareness of the probable consequences ... In order to ensure that this discretion is exercised in accordance with these principles, it is essential for the court explicitly to weigh all the competing factors and considerations of fundamental fairness to both sides- the defendant, the state and society, and presumably the victim ... This difficult and delicate process necessarily involves a careful consideration by the court of such factors as the strength of the state’s case, the likelihood of conviction, the severity of the crime, its effect on the victim, the strength of the defendant’s defense, the defendant’s personal situation, and all the other myriad factors that underlie a judgment regarding fundamental fairness ... Thus, a trial court’s invocation of its authority to dismiss a case under the insufficient cause prong of § 54-56 can be justified only when: (1) the court expressly and carefully has considered all of the relevant competing factors; and (2) dismissal is supported by overriding equitable considerations." (Emphasis in original; internal quotations marks omitted.) State v. Jimenez-Jaramill, 134 Conn.App. 346, 359, 38 A.3d 239, cert. denied, 305 Conn. 913, 45 A.3d 100 (2012).
"Although [the Supreme Court], like the Appellate Court, [is] not prepared to say that an informed judgment about such factors can never be reached short of trial, certainly such a judgment can be better formed after the court has had the opportunity to view at least one trial of the charges contained in the information sought to be dismissed for insufficient cause." (Internal quotation marks omitted.) State v. Kinchen, 243 Conn. 690, 708 n.15, 707 A.2d 1255 (1998).
The defendant has not yet been tried on the charges in this file. Also, dismissal is not supported by overriding equitable considerations. The motion to dismiss based on a claim of insufficient cause under General Statutes § 54-56 is denied.
The defendant’s claim pursuant to Practice Book § 41-8(1) that there is a defect in the institution of the prosecution is denied as well. State’s Attorney Hardy’s reviewing of the arrest warrant does not rise to the level of a defect in the institution of the prosecution. The defendant has offered no authority for this claim. In any event, there is no evidence that State’s Attorney Hardy was acting in her "personal interests" when she reviewed and signed the warrant. See ABA, Standards for Criminal Justice: Prosecution Function (4th Ed. 2017), standard 3-1.7(f) ("[t]he prosecutor should not permit the prosecutor’s professional judgment or obligations to be affected by the prosecutor’s personal, political, financial, professional, business, property, or other interests or relationships"); NDAA, National Prosecution Standards (3rd Ed. 2009), standard 1-3.3(d) ("[t]he prosecutor should excuse himself or herself from any investigation, prosecution, or other matter where personal interests of the prosecutor would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in an objective manner may be compromised").
Finally, the defendant’s bare assertion that there is a due process violation is denied. The defendant has cited no authority to support his claim that the facts alleged constitute a violation of due process of law.
In docket number CR19-0321308-S, the defendant also alleges insufficient cause to justify the continuing of the prosecution, a defect in the institution of the prosecution, and a due process violation. His argument in this case is that Assistant State’s Attorney Marcia Pillsbury and Inspector Steve Sartor participated in the preparation of the arrest warrant, and they are potential witnesses since they were present in the courtroom when the alleged offense occurred.
The defendant’s claim of insufficient cause under both the Practice Book and General Statutes is denied for the reasons previously given. The claim of a due process violation is also denied for the reason previously given. The claim of a defect in the institution of the prosecution is denied as well. The assertion that Attorney Pillsbury and Inspector Sartor may be called as witnesses is relevant to the motion to disqualify prosecutor, but has no bearing on the institution of the prosecution.
In docket number CR18-0264758-T, the defendant alleges insufficient cause to justify the continuing of the prosecution, a defect in the institution of the prosecution and a due process violation. His argument in this case is that a police officer and assistant state’s attorney who are alleged victims in other cases participated in the procurement of the thirty-two-count violation of protective order in this case.
The defendant’s claim of insufficient cause under Practice Book § 41-8 is denied for the reason previously stated. The claim of a due process violation is also denied for the reason previously given. With respect to the defendant’s claim of insufficient cause under General Statutes § 54-56, the defendant has already been tried once in this case. However, even if the court were to agree with the defendant that there was an appearance of impropriety in the procurement of the arrest warrant, that is not sufficient justification to dismiss this case. Dismissal is not supported by overriding equitable considerations. Likewise, the actions alleged do not rise to the level of a defect in the institution of the prosecution. Even a lack of probable cause in the arrest warrant would not justify a dismissal of the case. See, e.g., State v. Hansen, 8 Conn.App. 26, 28, 510 A.2d 465, cert. denied, 201 Conn. 806, 515 A.2d 379 (1986) ("the insufficiency of an arrest warrant affidavit to establish probable cause cannot serve as the basis for a motion to dismiss an information"). The defendant’s motion to dismiss on this claim is denied.
The defendant added a claim at oral argument with respect to this motion that Judge Oliver reviewed and signed the warrant despite the fact that the defendant had filed a complaint against him with the Judicial Review Council. The claim of insufficient cause under both the Practice Book and General Statutes is denied for the reasons previously given. The claim of a defect in the institution of the prosecution is also denied. The record is silent as to when the claim was made and whether Judge Oliver was aware of it. Also, pursuant to Practice Book § 1-22(b), "[a] judicial authority is not automatically disqualified from sitting on a proceeding merely because an attorney or party to the proceeding has filed a lawsuit against the judicial authority or filed a complaint against the judicial authority with the Judicial Review Council or an administrative agency." In any event, it does not rise to the level of a defect in the institution of the prosecution. See, e.g., State v. Hansen, supra, 8 Conn.App. 28. The claim of a due process violation is also denied for the reason previously given.
The defendant’s final motion, filed in all three docket numbers, is a "motion to disqualify prosecutor." He alleges a conflict of interest with respect to Assistant State’s Attorney Pillsbury. Specifically, his argument is that Attorney Pillsbury has a working relationship with the alleged victim in docket number CR18-0698275-T, Assistant State’s Attorney Erika Brookman, who signed the warrant in docket number CR18-0264758-T, and that Attorney Pillsbury is a potential witness in docket number CR19-0321308-S.
"The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney." Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993). However, our Supreme Court is clear that "the appearance of impropriety alone is simply too slender a reed on which to rest a disqualification order except in the rarest of cases." (Internal quotation marks omitted.) Id., 399; State v. Bunkley, 202 Conn. 629, 653-54, 522 A.2d 795 (1987). "Although considering the appearance of impropriety may be part of the inherent power of the court to regulate the conduct of attorneys, it will not stand alone to disqualify an attorney in the absence of any indication that the attorney’s representation risks violating the Rules of Professional Conduct." Bergeron v. Mackler, supra, 399-400.
The defendant does not claim that Attorney Pillsbury should be disqualified due to a violation of the Rules of Professional Conduct with respect to her relationship with Attorney Brookman. Rather, the claim is that there is a violation of the Division of Criminal Justice’s Ethical Guidelines for Prosecutors and the National District Attorneys Association National Prosecution Standards. The court does not believe that the relationship between the two assistant state’s attorneys is so close that disqualification of Attorney Pillsbury is required. Also, it does not appear to the court that the allegations involve the personal interests of Attorney Pillsbury. Therefore, this claim is denied.
The claim that Attorney Pillsbury should be disqualified because she is a potential witness also must be denied. Rule 3.7 of the Rules of Professional Conduct prohibits attorneys from acting as advocates at trial where that attorney is likely to be a necessary witness. However, with respect to testimony from a prosecutor, our Supreme Court has adopted the federal compelling need test. "Under this test, the party wishing to call a prosecutor to testify must show that the testimony of the prosecutor is necessary and not merely relevant, and that all other available sources of comparably probative evidence have been exhausted." (Internal quotation marks omitted.) Ullmann v. State, 230 Conn. 698, 717, 647 A.2d 324 (1994).
Assistant State’s Attorney Pillsbury was merely present when the defendant’s attorney entered the allegedly altered document into evidence as an ID exhibit. Her testimony does not appear to be necessary, and therefore, disqualification is not required.
For all the foregoing reasons, the defendant’s motions to dismiss and motion to disqualify prosecutor are denied.