State v. Malone

• Court: Connecticut Supreme Court
• Writing for the Court: D'AURIA, J.
• Decision Date: 10 May 2023
• Docket Number: SC 20654
• Citation: State v. Malone, SC 20654 (Conn. May 10, 2023)
• Parties: STATE OF CONNECTICUT v. ERICK MALONE

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STATE OF CONNECTICUT v. ERICK MALONE

No. SC 20654

Supreme Court of Connecticut

May 10, 2023^[*]

Argued December 21, 2022

Procedural History

Substitute information, in the first case, charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of Waterbury, where the court, Hon Roland D. Fasano, judge trial referee, accepted the state's entry of a nolle prosequi and denied the defendant's motion to dismiss; thereafter, substitute information in the second case, charging the defendant with the crimes of murder, reckless endangerment in the first degree, carrying a pistol without a permit, illegal discharge of a firearm and criminal possession of a pistol or revolver, brought to the Superior Court in the judicial district of Waterbury, where the court Iannotti, J., denied the defendant's motion to dismiss, and the defendant appealed. Appeal dismissed.

LailaM. G. Haswell, senior assistant public defender, with whom, on the brief, was John Cizik, Jr., senior assistant public defender, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Maureen Piatt, state's attorney, and TerenceD. Mariani, Jr., senior assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Ecker and Alexander, Js.

OPINION

D'AURIA, J.

In this interlocutory appeal, the defendant, Erick Malone, asks this court to determine whether the trial court erroneously denied his motion to dismiss criminal charges the state has reinstituted against him after the state previously entered and the trial court accepted a nolle prosequi on the ground that the state was unable to locate material witnesses. More specifically, the defendant claims that the trial court erred in denying his motion because the state intentionally had delayed the prosecution in violation of his right to a speedy trial. We do not address the merits of this claim because we agree with the state that the denial of the defendant's motion to dismiss does not constitute a final judgment. Accordingly, we dismiss this appeal for lack of jurisdiction.

The following facts and procedural history are relevant to this appeal. On January 6, 2017, the defendant was arrested pursuant to a warrant and charged with murder in violation of General Statutes § 53a-54a, reckless endangerment in the first degree in violation of General Statutes § 53a-63, carrying a pistol without a permit in violation of General Statutes § 29-35 (a), unlawful discharge of a firearm in violation of General Statutes § 53-203, and criminal possession of a firearm in violation of § 53a-217c (first prosecution).^[1] These charges related to the November 5, 2016 shooting death of Jahliek Dieudonne. The defendant's privately retained counsel, Tara L. Knight, thereafter filed a motion for a speedy trial, which the court, Crawford, J., granted. Days later, jury selection began.

After completion of jury selection, but before the jury was sworn and evidence began, the state sought to enter a nolle of this prosecution, pursuant to General Statutes § 54-56b,^[2] based on the disappearance of two witnesses. Specifically, the state asserted that the two witnesses had told the police that they were with the defendant shortly after Dieudonne's death and that he admitted to shooting the victim. The state also represented that the two witnesses had informed the police that the defendant said that he needed to get out of town, specifically, to New York, and that he wanted to burn his car. One of the two witnesses, the state related, also had told the police that the defendant gave him the jacket that the defendant was wearing at the time of the shooting. The state further represented to the trial court that it had searched extensively for the two witnesses, including, but not limited to, visiting all known addresses, contacting relatives and known associates of the witnesses, and surveying the neighborhoods that the witnesses frequented. The state also asserted that the witnesses were material to the case, as they were friends of the defendant who had no motive to fabricate their testimony that the defendant had admitted to them his responsibility for the shooting.

Knight objected to the entry of a nolle prosequi and requested, in the alternative, that the court dismiss the charges or grant a continuance of the trial, although she did not specify the length of the requested continuance. Specifically, Knight argued that the state had failed to establish that the missing witnesses were material to its case and contended that entering the nolle would violate the defendant's constitutional right to a speedy trial, which he had just exercised by filing a motion for a speedy trial that the court then granted. As to the missing witnesses' materiality, defense counsel argued that the missing witnesses were not necessary to the state's case because another eyewitness was available to testify, and the state also had consciousness of guilt evidence it could propound. As to the speedy trial claim, Knight argued that the first prosecution had been pending for one and one-half years when the defendant filed his speedy trial motion, the jury already had been selected, and evidence was supposed to begin the following day.

The trial court, Hon. Roland D. Fasano, judge trial referee, accepted the nolle prosequi and denied the defendant's motion to dismiss "without prejudice." In so ruling, the court stated: "If, in fact, this case is reinstituted at some later point, I think there are some significant issues as to whether or not that should be allowed, but, for now, the nolle is noted. . . . The prosecution is not going forward. The dismissal's without prejudice,^[3]so you can raise this again, and that's where we'll stand." (Footnote added.) The prosecutor then stated that, "despite our efforts ... to locate these people, at this point, we have no leads that we're kind of waiting on. I intend to kind of regroup and see if we can find any other avenues." The court responded that "there are a few issues we're all concerned about. Whether or not- there's a thirteen month limit, whether or not, if you- if you, at some later date, come up with witnesses, particularly in the face of a speedy trial and all the proceedings to this point, there's some real issues, but that's where I'm leaving it right now."

Approximately eight months later, the defendant was rearrested and charged in a new indictment with a single count of murder (second prosecution). The defendant, now represented by the Office of the Public Defender, moved to dismiss the second prosecution, arguing that new evidence described in the new indictment proved that the missing witnesses from the first prosecution were not material because they were not included in the new arrest warrant. Rather, the state had discovered the new evidence (a different eyewitness to the crime) the day after the court accepted the nolle in the first prosecution. The defendant claimed that the new arrest warrant showed that the state intentionally had delayed the prosecution in violation of his right to a speedy trial. The defendant also claimed that, because of the state's delay in the prosecution, he lost the ability to have the counsel of his choice represent him at trial, as he could no longer afford to pay Knight, whom he had hired during the first prosecution.

The trial court, Iannotti, J., denied the motion to dismiss and, in a memorandum of decision, ruled that the defendant's right to a speedy trial was not violated, as a nolle prosequi leaves a defendant "free and unencumbered by the nolled charge . . . ." (Emphasis omitted; internal quotation marks omitted.); see State v. Smith, 289 Conn. 598, 611, 960 A.2d 993 (2008). Judge Iannotti explained that, in terminating the first prosecution by accepting the nolle prosequi, Judge Fasano was entitled to rely on the state's representations that there were two material witnesses who had disappeared. Judge Fasano was not required to take evidence or make findings of fact and was not permitted to substitute his judgment for that of the prosecutor. Judge Iannotti also determined that the entry of a nolle in the first prosecution was not contrary to the manifest public interest, as the state had clearly established that the two witnesses were material and could not be located. Finally, as to the defendant's right to counsel claim, Judge Iannotti ruled that the defendant's right to counsel of choice was not violated, as a defendant may not insist on representation by an attorney he cannot afford to pay. The defendant appealed to the Appellate Court, challenging Judge Iannotti's denial of his motion to dismiss the second prosecution.

Before filing his appellate brief, the defendant filed a motion for permission to file a late appeal of Judge Fasano's May 7, 2018 ruling denying his motion to dismiss in the first prosecution. The state filed a timely opposition. We then transferred the defendant's appeal of Judge Iannotti's ruling to this court and assumed jurisdiction over the defendant's motion for permission to file a late appeal. See General Statutes § 51-199 (c) and Practice Book § 65-1. We took no action on the defendant's motion other than to provide the parties in this appeal the opportunity in their appellate briefs to supplement the reasons contained in their respective filings regarding that motion.

In a separate order issued today, this court has denied the defendant's motion for permission to file a late appeal. See State v. Malone, 346 Conn. 1012,, A.3d (2023). What remains at issue, therefore, is only the defendant's interlocutory appeal challenging Judge Iannotti's denial of his motion to dismiss in the second p...