State v. Lloyd

• Decision Date: 04 August 1981
• Citation: 185 Conn. 199,440 A.2d 867
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bruce Elmore LLOYD.

Page 867

440 A.2d 867

185 Conn. 199

STATE of Connecticut v. Bruce Elmore LLOYD.

Supreme Court of Connecticut.

Argued June 12, 1981.

Decided Aug. 4, 1981.

Jason E. Pearl, New Britain, with whom was Alan L. Robertson, Jr., New Britain, for appellant (defendant).

Linda K. Lager, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Mary M. Galvin, Asst. State's Atty., for appellee (State).

Before BOGDANSKI, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

PETERS, Associate Justice.

This case arises out of a claim of conflict between the state's right to enter a nolle prosequi in a pending prosecution and the defendant's constitutional right to a speedy trial. The defendant, Bruce Elmore Lloyd, was charged with sexual assault in the second degree in violation of General Statutes § 53a-71, risk of injury to a minor child in violation of General Statutes § 53-21, attempt to promote prostitution in violation of General Statutes §§ 53a-86(a) (2) and 53a-49, and permitting prostitution in violation of General Statutes § 53a-89. As trial of his case was about to begin, the state entered a nolle prosequi which the trial court accepted. The defendant's appeal contends that he was denied a speedy trial and that the charges against him should have been dismissed rather than being nolled.

There is no dispute about any of the facts in the record. The defendant was arraigned on the charges against him on November 29, 1978. He has never been incarcerated. He made prompt requests for a speedy trial, and his motion for a speedy trial was granted on August 15, 1979. On September 2, 1980, when he was scheduled for trial, he moved for dismissal of the charges, alleging that the delay of more than a year since the granting of his speedy trial motion constituted a violation of his right to a speedy trial. That motion was heard and denied and the case proceeded to trial with the assembly of a jury panel that was then addressed both by the court and by counsel. The next morning, September 3, 1980, before jury selection had begun, the state asked that the prosecution be terminated pursuant to its power to enter a nolle prosequi. Despite the defendant's objection, the nolle prosequi was entered. The defendant's renewed motion for dismissal on speedy trial grounds was denied at the same time.

The state's right to terminate a prosecution by the entry of a nolle prosequi has its origins in practices recognized at common law. The effect of a nolle prosequi is to end pending proceedings without an acquittal and without placing the defendant in jeopardy. Bucolo v. Adkins, 424 U.S. 641, 642, 96 S.Ct. 1086, 47 L.Ed.2d 301 (1976); see United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971); 4 Wharton, Criminal Procedure (12th Ed. 1976) § 518. Although the entry of a nolle prosequi results in the defendant's release from custody, he can, within thirteen months; General Statutes § 54-142a(c); be tried again upon a new information and a new arrest. Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 5, 273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S.Ct. 931, 28 L.Ed.2d 218 (1971); See v. Gosselin, 133 Conn. 158, 161, 48 A.2d 560 (1946). Until the enactment of General Statutes § 54-46 (now § 54-56b) in 1975, ¹ and the promulgation of Practice Book § 2137 (now § 726) in 1976, the power to enter a nolle prosequi was discretionary with the state's attorney; neither the approval of the court nor the consent of the defendant was required. State v. Main, 31 Conn. 572, 576 (1863); State v. Anonymous, 32 Conn.Sup. 501, 502-503, 337 A.2d 336 (1975). See Kosicki, "The Function of Nolle Prosequi and Motion to Dismiss in Connecticut," 36 Conn.B.J. 159, 161 (1962).

The principles that today govern the entry of a nolle prosequi place some restrictions on the prosecuting attorney's formerly unfettered discretion. Although the decision to initiate a nolle prosequi still rests with the state's attorney, the statute and the rules now permit the defendant to object to a nolle prosequi and to demand either a trial or a dismissal except "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 been destroyed and that a further investigation is therefore necessary." General Statutes § 54-46 ² (now § 54-56b); and see Practice Book § 726. ³

In the present case, the defendant made a timely objection to the nolle prosequi. The state thereupon asked the court to accept the entry of the nolle upon its representation that one material witness had died and that the complaining witness had become disabled. The mother of the complaining witness had died in the spring of 1979, prior to the granting of the defendant's motion for a speedy trial on August 15, 1979. The complaining witness was unavailable to testify because, in the medical judgment of her psychiatrist, participation in a criminal trial and especially the rigors of cross-examination would cause her to revert to a psychotic state. The state's attorney asserted that she had not learned of the disability of the complaining witness until the afternoon of September 2, 1980. Previous inquiry had led the state's chief inspector to conclude that the complaining witness would be available to give testimony when called. After hearing from defense counsel, the trial court announced that it was satisfied that a witness had become disabled within the terms of the statutory exception and therefore allowed a nolle prosequi to be entered.

The first issue that we must resolve is whether the state's representation was a sufficient basis for the trial court's acceptance of the nolle prosequi. The defendant does not dispute the factual content of the state's representation. He argues, however, that the death of the complaining witness' mother was too remote in time to warrant a nolle prosequi a year and a half later, and that the disability of the complaining witness was of too long standing to justify a delay for further investigation since, as the state's attorney herself acknowledged, the complaining witness "has been suffering from psychotic episodes for almost two years, or not quite, since a short time after the alleged date of this incident in October of 1978." The state's answer to this argument is to deny its premise. The state maintains that the trial court lacked authority to inquire into the significance of the state's representation. According to the state, once a prosecutor makes a representation that, on its face, complies with the exception stated in the statute and the practice book, the court has no choice other than to order the entry of the nolle prosequi on the record.

This case is our first opportunity to determine the effect of the enactment of § 54-46 and Practice Book § 726 upon the power of the state's attorney to enter a nolle prosequi. We find the argument of neither party wholly persuasive. On the one hand, we agree with the state that the trial court need not receive evidence, and thus makes no findings of fact, to determine the accuracy of the state's representations. The trial court had no obligation to decide whether the complaining witness was in fact truly disabled. On the other hand, we agree with the defendant that the court's duty to determine whether the statutory exception has been satisfied is not purely ministerial. We note, for example, that the court carefully limited its acceptance of the nolle to the representation with respect to the disabled witness only; we need not decide, therefore, whether the state would have been entitled to rely upon the death of a witness long before its entry of the nolle. The proper test is whether there has been a manifest abuse of prosecutorial discretion. The court must accept the entry of the nolle prosequi for the record unless it is persuaded that the prosecutor's exercise of discretion is clearly contrary to manifest public interest. See United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975), cert. denied sub nom. Woodruff v. United States, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 795 (1976); United States v. Ammidown, 497 F.2d 615, 622 (D.C.Cir.1974) (both decided under Rule 48(1), Federal Rules of Criminal Procedure). This test, similar to that governing the review of the exercise of judicial discretion; see State v. Avcollie, 174 Conn. 100, 110, 384 A.2d 315 (1977); State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 (1975); takes full account of the high standards and the commitment to justice to which state's attorneys adhere as officers of the court and representatives of the people of the state of Connecticut.

Applying the test to the facts before us, we find no error in the decision of the trial court. The trial court was well within its province in determining that the state had satisfied the exception allowing a nolle prosequi to enter despite the defendant's objection. Good faith disagreements about what constitutes disability do not demonstrate a manifest abuse of prosecutorial discretion.

The next issue that we must address is what follows from the trial court's acceptance of the nolle prosequi. The state maintains that this action deprived the trial court of any further jurisdiction to hear the case or to make any rulings in its regard, and deprived this court of jurisdiction to hear an appeal at this time. The defendant claims that the court was then obliged to grant his motion to dismiss for lack of a speedy trial. We will consider each of these positions in turn.

We do not agree with the state that the trial court lost jurisdiction, for all purposes, once the nolle prosequi had been entered on the record. Two recent cases illuminate the court's continuing jurisdiction. In State v. Carr, 172 Conn. 608, 376 A.2d 74 (1977), the issue was the effect of an erroneously accepted guilty plea on dismissal of the original information. We there...