Opinion
L18WCR110138205S.
12-21-2012
STATE of Connecticut v. Margaret E. McCARROLL.
UNPUBLISHED OPINION
MARANO, J.
This court previously denied two motions to transfer venue filed by the defendant, Margaret McCarroll. Thereafter, on April 30, 2012, this case was disposed of by two nolles prosequi. The defendant, Margaret E. McCarroll, now moves, by motion filed on July 10, 2012, to open or set aside the nolles prosequi, and by motion filed on October 11, 2012, to transfer venue from Geographical Area No. 18 at Bantam to the Superior Court in Hartford County at Hartford, or any other location deemed appropriate where public transportation is available. A hearing was held on both motions on November 14, 2012. Both motions are denied.
" Nolle prosequi is nothing but a declaration of the prosecuting officer that he will not prosecute the suit further at that time." State v. Ackerman, 27 Conn.Supp. 209, 211, 234 A.2d 120 (1967); see Black's Law Dictionary (9th Ed.2009) (nolle prosequi is " [a] legal notice that a lawsuit or prosecution has been abandoned").
A
Motion to Open or Set Aside Nolle Prosequi
The defendant seeks an order to vacate the two nolles prosequi entered on April 30, 2012, on the grounds that the proceedings, the decision and her incarceration were in violation of the federal and state constitutions, as well as General Statutes §§ 46b-2, 54-56b, 51-345, 52-121 and 51-353. In essence, the defendant argues that she was forced into the nolles prosequi because her prior motions to transfer venue were denied. According to the plaintiff, as a result of her disability and indigent status, she lacked affordable transportation and the financial resources to attend a trial in Bantam and she feared that, if she did not take the nolles prosequi but rather requested a trial, she would eventually receive a " failure to appear." At the hearing, the plaintiff made clear to the court that " the nolle was accepted against [her] wishes because [she] was not allowed to have a trial which is what [she] wanted." The State did not file an objection to the motion but orally objected at the hearing.
The plaintiff argues that she wants a trial because she wants to prove that she is competent and not suffering from any mental disability or infirmity. See Hr'g Tr. 9, 15, November 14, 2012. The State argued that, even if the nolles prosequi were reopened and a trial was conducted, the trial would not, in any way, address the competence of the plaintiff but rather " would be limited to a determination of the facts behind the complaints regarding her conduct that was the basis for the criminal arrest. The fact that she was given an examination for competency at some point along the road would not even come before a jury, nor would there be any particular finding." Hr'g Tr. 15.
" The State's Attorney's office has broad discretion in seeking to terminate criminal proceedings by a nolle." State v. Cadovius, Superior Court, judicial district of Stamford-Norwalk, Docket No. CR 04 103695 (November 15, 2004, Hickey, J.T.R.) (38 Conn. L. Rptr. 269), citing State v. Lloyd, 185 Conn. 199, 204, 440 A.2d 867 (1981). " 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." State v. Lloyd, supra. The prosecuting authority must enter a nolle " upon the record after a brief statement by the prosecuting authority in open court of the reasons therefor." Practice Book § 39-29. However, General Statutes § 54-56b provides in relevant part: " A nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal ..." See Practice Book § 39-30.
In the present case, the defendant has failed to show that a manifest abuse of prosecutorial discretion occurred, that the prosecutor's exercise of discretion was clearly contrary to manifest public interest, or that, at the time the nolles prosequi were entered, she objected and demanded a trial. Accordingly, the defendant has failed to present an adequate basis to permit this court to open and vacate the nolles prosequi, and, therefore, the motion to open and vacate is denied.
B
Motion to Transfer Venue
The defendant moves to transfer venue of this case, post-nolles, to the Superior Court in Hartford County, or any other location where public transportation is available to the defendant. At oral argument, the defendant acknowledged that the court previously denied her motions to transfer but requested that the court reconsider her request. The defendant's motion is based, primarily, on the ground that she lacks the funds to transport herself to and from Bantam, and there is no public transportation option available in the area. According to the defendant, she would be able to avail herself of the services of a public defender and invoke her right to a speedy trial if the case were transferred to the Superior Court in Hartford County, or any other location where public transportation is available to her. The defendant argues that she is disabled, receives public assistance and is considered financially indigent. Thus, due to her indigent status, the question of venue is not merely one of convenience but also calls into question her rights to trial by jury, right to confront witness and right to counsel. According to the defendant, the failure to transfer venue would be a violation of the Americans with Disabilities Act (" ADA") and General Statutes § 46a-7, as well as a violation of the equal protection clause under the Fourteenth Amendment. The defendant asserts that General Statutes §§ 51-353 and 51-353a as well as Practice Book § 41-23 permit the requested change of venue, without any showing of prejudice against one of the parties. At the hearing on this matter, the defendant argued that she wants to transfer the case to Hartford so that she can financially afford to proceed to trial. The State did not file an objection to the motion but orally objected at the hearing.
At oral argument, the defendant noted that she did attempt to take an appeal from the denial of those motions, but her appeal was denied on procedural grounds.
In criminal cases, defendants do not have an inherent right to a change in venue. " In requesting a change of venue, a defendant bears the burden of showing that he could not otherwise receive a fair and impartial trial. The trial court exercises its discretion in deciding whether to grant such a change of venue ... The trial court's discretion is governed by Practice Book [§ 41-23] ..." (Citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 222, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). " A transfer is necessary if, in the discretion of the trial court, the location of the pending case precludes a fair and impartial trial." State v. Chapman, 33 Conn.App. 205, 208, 635 A.2d 290 (1993).
In the present case, as this court has denied the defendant's request to open and vacate her nolles prosequi, there are no pending criminal cases before the court to transfer. " The effect of a nolle is to terminate the particular prosecution of the defendant without an acquittal and without placing him in jeopardy ... 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 ... 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." (Citations omitted; internal quotation marks omitted.) State v. Richardson, 291 Conn. 426, 430, 969 A.2d 166 (2009).
Therefore, the defendant's motion to transfer venue is denied as moot.