State v. Kinchen, 15791

• Decision Date: 03 March 1998
• Docket Number: No. 15791,15791
• Citation: 707 A.2d 1255,243 Conn. 690
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut, v. Daryl KINCHEN.

Page 1255

707 A.2d 1255

243 Conn. 690

STATE of Connecticut, v. Daryl KINCHEN.

No. 15791.

Supreme Court of Connecticut.

Argued Dec. 4, 1997.

Decided March 3, 1998.

Robert J. Scheinblum, Assistant State's Attorney, with whom, on the brief, were Eugene J. Callahan, State's Attorney, and Richard J. Colangelo, Jr., Assistant State's Attorney, for appellant (State).

Mark Rademacher, Assistant Public Defender, for appellee (defendant).

Before BORDEN, BERDON, PALMER, McDONALD and PETERS, JJ.

PALMER, Associate Justice.

The sole issue in this appeal, taken by the state with the permission of the trial court, ¹ is whether the trial court had the authority to dismiss, sua sponte, a pending misdemeanor charge against the defendant, Daryl Kinchen, because, in the court's view, the case was not sufficiently important to warrant the time and expense of a jury trial. We conclude that, in the absence of compliance with the relevant statute, General Statutes § 54-56, the trial court did not have such authority. Accordingly, we reverse the judgment of the court dismissing the charge.

The facts relevant to this appeal are undisputed. On October 26, 1995, the defendant was charged by misdemeanor summons and complaint with criminal trespass in the first degree in violation of General Statutes § 53a-107. ² According to the police report on which the complaint was based, the defendant, a former employee of Trudy Toy, Inc. (Trudy Toy), in Norwalk, was fired from his job at that company's manufacturing facility on October 20, 1995. Peter Ogilve, a supervisor with Trudy Toy, told the police that the defendant's employment had been terminated for poor performance and, because of reports that he had been stealing items from an adjacent company that shares warehouse space with Trudy Toy.

On October 26, 1995, Ogilve arrived at the warehouse to find the defendant arguing with another Trudy Toy supervisor, Mario Coppolla. According to Coppolla, he observed the defendant in the warehouse space used by the company adjacent to Trudy Toy, in the vicinity of a pallet of watches. The defendant, who was carrying a bag containing three boxes, informed Coppolla that he had come to the warehouse to speak to Ogilve about his recent job termination. Ogilve instructed the defendant to leave the property and not to return for any reason. Ogilve then observed the defendant leave the premises. ³ Several minutes after the defendant had departed, however, two other Trudy Toy employees saw the defendant return to the area of the warehouse where the pallet of watches was located.

Ogilve reported these events to David Wrinn, a Norwalk police officer, who proceeded to the defendant's home to speak to him about the incident. The defendant denied that he had returned to the warehouse after Ogilve had ordered him to leave. The defendant further stated that the bag he had been carrying contained pamphlets for distribution to a group that he was organizing. Wrinn then served the defendant with a misdemeanor summons and complaint charging him with first degree criminal trespass.

The defendant appeared in court on November 29, 1995, at which time a public defender was appointed to represent him. The defendant entered a plea of not guilty to the charge, and elected to be tried by a jury.

The defendant next appeared in court the following week. At that time, his counsel informed the trial court, Stevens, J., that the state had "made an offer" to the defendant, but that the defendant "doesn't want it. He says he's innocent and wants his trial." The case then was continued for several weeks.

At the defendant's next court appearance on January 5, 1996, his attorney informed the trial court that the defendant, who by then had been incarcerated for a parole violation stemming from the filing of the criminal trespass charge, ⁴ had forwarded to the court a motion for a speedy trial. Although the clerk's office had not yet received the defendant's motion, the court placed the case on the firm jury list and scheduled the case for a pretrial conference.

On January 31, 1996, the defendant again appeared in court. Counsel for the defendant informed the trial court that the defendant wanted the case to be dismissed. Defense counsel further stated, however, to the court: "I've done my research on this and I do not see grounds under [Practice Book § 815] ⁵ for dismissal." Because a pretrial conference on the defendant's case already had been conducted, the trial court ordered that the case be placed on one hour notice for trial.

The defendant appeared in court again on March 20, 1996. The trial court, Dean, J., ⁶ indicated that the case was ready for trial, during the following colloquy between the trial court and the deputy assistant state's attorney:

"The Court: [Y]ou know, we have a lot of serious cases on the jury [list]. We have a burglary [case] right behind this. We have six cases [for which] subpoenas are out behind this case, and in twenty-six years I have never tried a trespassing case to the jury. Never. And I've read this police report and it's simple trespass. ⁷ [It c]ould either be an infraction or [it] could be a trespass first, I suppose. No one was hurt, no injuries. It was just a plain old trespass. Now we have a situation here where clerks are being let go, we have backlogs, and quite frankly, I would be embarrassed to put this [case] before a jury who has taken their time off from work. They don't want to be here and ... sit here and ... listen to something like this. I don't know why you gentlemen cannot resolve this thing. However, I'm going to resolve it. [Deputy assistant state's attorney Richard J.] Colangelo--

"Mr. Colangelo: Yes, Your Honor. I do understand your position and I share your sympathies. Unfortunately--

"The Court: ... Absolutely. And this is for the benefit of--the people of the state of Connecticut [whose] taxes pay for this court and pay for the jurors, and in the great scheme of things when we have burglaries and robberies on the juries that are not being reached and we have something like this--Mr. Colangelo, if you want to substitute an information for trespass--what do you call the simple one, infraction of trespass. I will try it on the spot as a court. ⁸ However, if you don't want to do that, I'm going to dismiss this because--

"Mr. Colangelo: Actually, Your Honor, I do share your concerns [and] sympathy, but it is the defendant that elects a jury trial and the [s]tate does not have any control over that.

"The Court: ... Well, I'm saying--

"Mr. Colangelo: I could very definitely, I could change the charge, but--

"The Court: I'm saying if you would like to get a conviction--

"Mr. Colangelo: No, sir. I am not going to reduce the charge. The defendant is charged with a misdemeanor.

"The Court: Okay, dismissed. Okay.

"Mr. Colangelo: Could I ask for a basis?

"The Court: In the interest of--

"Mr. Colangelo: Permission to appeal. Permission to appeal.

"The Court: Do whatever you want.

"Mr. Colangelo: Thank you.

"The Court: In the interest of justice, the basis that I'm dismissing this is because right behind it is a burglary case. Now this was set down for a speedy trial and it's just a matter of priorities. We can't try all the cases, and when I weigh this case against the burglary or other cases we have here and the expense involved in trying this, and I've examined--I mean nobody--I've examined the police report. Nobody was hurt. It was just a plain old trespass where he had an argument with his former employer.

"Mr. Colangelo: [The defendant] was instructed to leave, [and he] did come back later, Your Honor.

"The Court: ... was instructed to leave and didn't leave. And certainly the infraction would be appropriate in this matter, and--

"Mr. Colangelo: Could I have the report back?

"The Court: ... I just gave it to the clerk. And under the circumstances whereby we have such a backlog, and I talked to [supervisory assistant state's attorney Steven] Weiss and he's got thirty jury trials, the next one is a burglary, and--

"Mr. Colangelo: We have approximately a hundred--well, probably--

"The Court: And for me to spend a week selecting a jury and trying this case, I'm not going to do it. So dismissed.

"Mr. Colangelo: Thank you, Your Honor.

"The Court: All right, the case is dismissed.

"[James Ginnochio, Defense Counsel]: Thank you.

"The Court: Okay. And let's see how much the appeal costs you, Mr. Colangelo. You want to waste some more money?

"Mr. Colangelo: I'm just doing my job, Judge."

The proceeding thereupon concluded.

On appeal, the state claims that, in the circumstances of this case, the trial court's dismissal of the first degree criminal trespass charge constituted an impermissible usurpation of the prosecutor's authority to charge the defendant in violation of the doctrine of separation of powers. The defendant contends that the trial court's dismissal of the charge was not constitutionally impermissible and, further, that the dismissal was authorized by General Statutes § 54-56. ⁹ We agree with the state.

The separation of powers provision of article second of the Connecticut constitution provides in relevant part: "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." "[T]he primary purpose of this constitutional doctrine is to prevent commingling of different powers of government in the same hands.... The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to each branch's independence and performance of assigned powers.... [Thus, t]he separation of powers doctrine serves a dual function: it limits the exercise of power within each branch, yet ensures the independent exercise of that power.... [I]n deciding whether one...