State v. Richardson, No. 18145.

• Decision Date: 12 May 2009
• Docket Number: No. 18145.
• Citation: 969 A.2d 166,291 Conn. 426
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jewu Thomas RICHARDSON.

969 A.2d 166

291 Conn. 426

STATE of Connecticut v. Jewu Thomas RICHARDSON.

No. 18145.

Supreme Court of Connecticut.

Argued January 8, 2009.

Decided May 12, 2009.

Suzanne Z. Curtis, assistant public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Brian Leslie, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, VERTEFEUILLE, ZARELLA and SULLIVAN, Js.

ZARELLA, J.

The dispositive issue in this appeal is whether the trial court had jurisdiction to consider a motion to dismiss filed after the state entered a nolle prosequi without objection. The defendant, Jewu Thomas Richardson, appeals from the trial court's denial of his motion to dismiss. We conclude that the trial court lacked jurisdiction to entertain the defendant's motion to dismiss.

The record discloses the following relevant facts and procedural history. The defendant was arrested on January 5, 2006, and charged by substitute information with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), and possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a(b). The defendant pleaded not guilty, and the case eventually proceeded to jury selection. On March 14, 2007, prior to the jury being sworn, the state requested a four week continuance, which the trial court, Keegan, J., granted.¹ Two days later, on March 16, 2007, the assistant state's attorney informed the court, Blawie, J.,² that "[t]he state's main witness has become legally unavailable, and the state is therefore entering a missing witness nolle pursuant to [General Statutes §] 54-56b."³ Defense counsel, who had waived the defendant's appearance at the March 16 proceeding, averred that he knew "of no valid basis to object" to the nolle, and the court declared that the nolle was "noted on that basis."

In a pro se motion dated March 29, 2007, the defendant sought to have the charges dismissed with prejudice. In his motion to dismiss, the defendant claimed, inter alia, that the "charges against him [should] be dismissed with prejudice" because the state had failed to show that the nolle was based on the death, disappearance or disability of a material witness as Practice Book § 39-30 requires.⁴ The court held a hearing on April 9, 2007, and denied the defendant's motion to dismiss. The defendant appealed to the Appellate Court from the denial of his motion to dismiss, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. Additional facts will be set forth as necessary.

On appeal, the defendant challenges the trial court's denial of his motion to dismiss, claiming that the state failed to satisfy the specific requirements of § 54-56b when it entered the missing witness nolle. We need not reach this issue, however, because we agree with the state that the trial court was without jurisdiction to consider the defendant's motion to dismiss inasmuch as the defense had not timely objected to the entering of the nolle.

We begin with a brief discussion of the general principles of jurisdiction that bear on our resolution of this appeal. "[T]he question of subject matter jurisdiction is a question of law ... and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case.... We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Citation omitted; internal quotation marks omitted.) Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 703, 894 A.2d 259 (2006). "The Superior Court is a constitutional court of general jurisdiction.... In the absence of statutory or constitutional provisions the limits of its jurisdiction are delineated by the common law." (Citation omitted.) State v. Luzietti, 230 Conn. 427, 431, 646 A.2d 85 (1994).

"The Superior Court's authority over criminal cases is established by the proper presentment of the information ... which is essential to initiate a criminal proceeding." (Internal quotation marks omitted.) State v. Daly, 111 Conn.App. 397, 401-402, 960 A.2d 1040 (2008). "The effect of a nolle is to terminate the particular prosecution of the defendant without an acquittal and without placing him in jeopardy." Id., at 402, 960 A.2d 1040. "Therefore, the nolle places the criminal matter in the same position it held prior to the filing of the information. Indeed, no criminal matter exists until, and if, the prosecution issues a new information against the defendant. As our rules explain, [t]he 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. Practice Book § 39-31. The defendant is accused of no crime, is released from custody unconditionally and is no longer under the authority of the court. It follows that, generally, a court does not have jurisdiction over the case after the entry of a nolle." (Internal quotation marks omitted.) State v. Daly, supra, at 402-403, 960 A.2d 1040. Although this court has recognized a narrow exception to this general rule,⁵ that exception is not applicable in the present case.

In this case, defense counsel waived the defendant's appearance at the March 16, 2007 proceeding in which the state entered the nolle. At the beginning of the proceeding, the assistant state's attorney asked if defense counsel would "[w]aive [the defendant's] appearance," to which counsel replied: "Yes, I'll waive his appearance.... It's my understanding ... that what's going to happen here doesn't require his appearance." Immediately after this exchange, the assistant state's attorney informed the court that he was "entering a missing witness nolle pursuant to [§] 54-56b" because "the state's main witness ha[d] become legally unavailable ...." Immediately thereafter, the court asked defense counsel whether he "wish[ed] to be heard," to which defense counsel replied: "No, Your Honor. I know of no valid basis to object [to the entry of the nolle]...."

On appeal, the defendant does not raise a claim with respect to the propriety of defense counsel's waiver of the defendant's appearance at the March 16 proceeding. In fact, in his reply brief, the defendant concedes that "[w]aiver of the defendant's presence by his attorney on March 16, 2007, is a nonissue in this case...." Nevertheless, the defendant contradictorily asserts, for the first time in his reply brief, that he had a constitutional right to be present at the proceeding in which the state entered the nolle and that he had not agreed to a waiver of that right. Because the defendant failed to raise this issue in his main brief, it is abandoned. See, e.g., State v. Lopez, 280 Conn. 779, 816 n. 25, 911 A.2d 1099 (2007) ("[i]t is a well established principle that arguments cannot be raised for the first time in a reply brief" [internal quotation marks omitted]); see also Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 262 n. 1, 425 A.2d 1289 (1979) ("[t]hose claims of error not briefed are considered abandoned").

Thus, we begin with the premise that the defendant's presence at the nolle proceeding was effectively and properly waived by defense counsel. It is incontrovertible that the defendant, through his counsel, acquiesced in the entry of the missing witness nolle on March 16, 2007. Once the state entered the nolle and the proceeding ended, the trial court was divested of jurisdiction to take any further...