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*********************************************** 
STATE OF CONNECTICUT v. RICKY OWEN

(SC 20127)

Palmer, McDonald, D’Auria, Mullins, Kahn and Ecker, Js.

Syllabus

Pursuant to statute (§ 54-56b), a nolle prosequi may not be entered as to

any count in an information if the accused objects and demands either

a trial or a dismissal, unless the nolle is entered on a representation to

the court by the prosecutor that, inter alia, a material witness has died,

disappeared or become disabled.

The defendant, who had been charged with various crimes in connection

with an alleged assault on J, his girlfriend, appealed from the trial court’s

denial of his motion to dismiss the charges after he objected to the

prosecutor’s entry of a nolle prosequi as to all of the charges. The

prosecutor represented, in her memorandum in support of her motion

seeking to enter the nolle, that J had returned to North Carolina, where

she had lived prior to the alleged assault, J had called the victim’s

advocate and stated that she was experiencing bouts of depression and

crying, the defendant’s friend had contacted her to urge her not to testify

against the defendant, and she still thought about the incident frequently

and it bothered her a great deal. J had been scheduled to travel to

Connecticut to testify at the defendant’s trial, but, after a storm cancelled

her planned transportation, she contacted the prosecutor to inform her

that she would be unable to return to Connecticut to testify. During her

conversation with the prosecutor, J requested help in finding counseling

and indicated that she was afraid to testify and wanted to get on with

her life. On the basis of these factual allegations, the prosecutor contended that J had become disabled for purposes of § 54-56b. At a hearing

before the trial court on the prosecutor’s motion, the prosecutor reiterated that she was relying on, inter alia, J’s statements indicating that

she was going through bouts of depression and crying. The defendant

argued that J was unable to testify due to her fear of testifying, and

that fear was not sufficient to constitute a disability for purposes of

§ 54-56b, that J had elected not to return to Connecticut, and that the

prosecutor had chosen not to serve her with a material witness subpoena. The trial court observed that its role was not to receive evidence

or to make a finding as to whether J was disabled, but to determine

whether the prosecutor, in entering the nolle, was exercising her discretion in a manner that was clearly contrary to manifest public interest.

In finding that the prosecutor was not abusing her discretion, the court

relied on the facts that the prosecutor alleged during the hearing, viewed

in light of the prosecutor’s years of experience litigating domestic violence cases. The court thereupon accepted the entry of the nolle and

denied the defendant’s motion for dismissal, and the defendant appealed.

Held that the trial court properly relied on the prosecutor’s representations to find that the prosecutor was not exercising her discretion in a

manner clearly contrary to manifest public interest and, accordingly,

properly allowed the nolle to enter; contrary to the defendant’s representation of the record, the prosecutor did not rely solely on J’s stated fear

of testifying in asserting that J had become disabled for purposes of

§ 54-56b, but made various representations consistent with the position

that J suffered from a disability that prevented her from being able to

testify due to the emotional trauma she had experienced as a victim of

domestic violence, including that J suffered from depression and needed

counseling, and nothing in the record suggested that the prosecutor

acted with an intent to harass the defendant or otherwise was acting

in abuse of her discretion.

Argued November 6, 2018—officially released May 14, 2019

Procedural History

Substitute information charging the defendant, in the

alternative, with the crimes of strangulation in the second degree, assault in the third degree and unlawful
restraint in the first degree, and with the crimes of

assault in the second degree, threatening in the second

degree, interfering with an emergency call and unlawful

restraint in the second degree, brought to the Superior

Court in the judicial district of Fairfield, geographical

area number two, where the court, Holden, J., accepted

the state’s entry of a nolle prosequi in the case and

denied the defendant’s motion to dismiss, and the defendant appealed. Affirmed.

Pamela S. Nagy, assistant public defender, for the

appellant (defendant).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, were John C. Smriga, state’s attorney, and Judy Ann Stevens, senior assistant state’s

attorney, for the appellee (state).
Opinion

KAHN, J. The issue presented in this appeal is

whether the trial court properly determined that the

prosecutor did not abuse her discretion in a manner

clearly contrary to manifest public interest when she

entered a nolle prosequi on the basis that the state’s

material witness had become disabled for purposes of

General Statutes § 54-56b.1 The defendant, Ricky Owen,

appeals from the decision of the trial court allowing

the prosecutor to enter a nolle prosequi over his objection and denying his motion to dismiss the charges.2

The defendant argues that the prosecutor’s basis for

entering the nolle—namely, that her key witness was

‘‘disabled’’ because her fear prevented her from being

able to testify—was insufficient as a matter of law to

establish that the witness was disabled for purposes of

§ 54-56b. The defendant therefore contends that the

trial court improperly relied on its finding—that the

witness was disabled for purposes of § 54-56b—to deny

his motion to dismiss and to allow the nolle to enter

over his objection. The state responds that the defendant’s claim mischaracterizes the representations of the

prosecutor at the time that the nolle entered. According

to the state, rather than simply claiming that the witness

was afraid to testify, the prosecutor represented to the

court that the witness was disabled due to her compromised mental state—and that her statements of fear,

among other things, demonstrated that compromised

mental state. We agree with the state’s characterization

of the prosecutor’s representations to the trial court.

Our review of the record also reveals that, contrary to

the defendant’s claim on appeal, the trial court made

no finding that the witness was—or was not—disabled.

Instead, the court properly grounded its ruling on its

finding that, in entering the nolle, the prosecutor had

not abused her discretion in a manner clearly contrary

to manifest public interest. Accordingly, we affirm the

decision of the trial court.

The record reveals the following relevant facts and

procedural history. On May 31, 2016, the defendant was

arrested in connection with an alleged assault on J,3 his

girlfriend. He was charged with, among other crimes,

strangulation in the second degree in violation of General Statutes (Rev. to 2015) § 53a-64bb, assault in the

second degree in violation of General Statutes § 53a60 (a) (1), unlawful restraint in the second degree in

violation of General Statutes § 53a-96 (a), threatening

in the second degree in violation of General Statutes

(Rev. to 2015) § 53a-62 (a) (1), and interfering with an

emergency call in violation of General Statutes § 53a183b (a). At the defendant’s arraignment, the court

issued a no contact protective order against the defendant as to J.

On January 10, 2017, the day that evidence in the

defendant’s trial was scheduled to begin, the prosecutor
sought to enter a nolle prosequi. In her memorandum

in support of her motion seeking to enter the nolle, the

prosecutor represented that J was a material witness.

The prosecutor also alleged that, on July 21, 2016, J, who

was originally from North Carolina and had returned

to live there following the incident, called the victim’s

advocate and stated that she was experiencing ‘‘bouts

of depression’’ and crying. She also reported to the

victim’s advocate that a friend of the defendant had

contacted her to urge her not to testify against the

defendant. Although J consistently had stated that,

despite her fears, she intended to return to Connecticut

to testify, she also informed the victim’s advocate that

she still thought about the incident and that it bothered

her a great deal. J was scheduled to travel by bus to

Connecticut on Friday, January 6, 2017, but the bus did

not run that day due to a storm in North Carolina. On

the evening of Sunday, January 8, 2017, J contacted the

prosecutor to inform her that she would be unable to

return to Connecticut to testify. During the course of

that conversation, J requested help in finding counseling, indicated that she was afraid to testify and stated

that she wanted to ‘‘get on with her life.’’

Relying on these factual allegations, the prosecutor

contended in her memorandum that J had ‘‘become

disabled’’ for purposes of § 54-56b. The prosecutor further argued that the issue before the court in determining whether to allow the nolle to enter was not whether

J was disabled, but only whether, in entering the nolle,

the prosecutor had abused her discretion in a manner

contrary to public policy. See State v. Lloyd, 185 Conn.

199, 204, 440 A.2d 867 (1981).

The trial court heard argument on the prosecutor’s

motion. At the hearing on the motion, the prosecutor

reiterated her reliance on, inter alia, J’s statements indicating that J was going through bouts of depression

and crying, that she needed counseling, was afraid,

could not stop thinking about the incident and wanted

to get on with her life. The prosecutor further represented that the state could not proceed without J’s

testimony and contended that J was disabled.4 The prosecutor’s statements in support of her representation

that J was disabled demonstrate that she relied on multiple pieces of information to support her conclusion that

J suffered from a disability due to the emotional trauma

that she had experienced as a victim of domestic violence. Specifically, the prosecutor pointed not only to

J’s ‘‘fear,’’ but also to her ‘‘depression’’ and ‘‘emotional issues.’’

Several other statements made by the prosecutor at

the hearing further demonstrate that her representation

that J was ‘‘disabled’’ relied on more than a vague assertion regarding J’s fear of testifying. Acknowledging that

she had been unable to find legal precedent supporting

her claim that J’s mental condition constituted a disabil-
ity pursuant to § 54-56b, the prosecutor lamented the

lack of such legal authority, stating that the ‘‘emotional

tumult’’ often experienced by victims, combined with

their fear of the ramifications of cooperating with the

police and prosecutors, ‘‘literally makes them unable

to come forward.’’ With ‘‘supportive counseling,’’ the

prosecutor continued, victims may be able to overcome

their fear of testifying. These statements demonstrate

that, rather than representing that J chose not to testify

because she was afraid, the prosecutor represented to

the court that J was unable to testify due to a disability.

The prosecutor urged the court to find that her determination to enter the nolle on the basis of J’s disability

was not an abuse of her discretion.

The defendant objected to the nolle and moved to

dismiss the charges, focusing solely on one of the facts

that the prosecutor had referenced in representing to

the court that J had become disabled pursuant to § 54-

56b—that J was unable to testify due to her fear. Fear

alone, the defendant contended, is not sufficient to constitute a disability for purposes of § 54-56b. The defendant argued that J merely had elected not to return to

Connecticut to testify and the prosecutor had chosen

not to serve her with a material witness subpoena. The

defendant did not respond to the prosecutor’s representations that J was depressed and suffering from ‘‘emotional issues,’’ and that she had requested help in finding

counseling services.

The court issued its decision from the bench, beginning with the observation that its role was not to receive

evidence or to make a finding as to whether J was

disabled, but only to determine whether, in entering

the nolle, the prosecutor had exercised her discretion in

a manner that was ‘‘clearly contrary to manifest public

interest.’’ State v. Lloyd, supra, 185 Conn. 204. In finding

that the prosecutor had not abused her discretion, the

court relied on the facts alleged by the prosecutor during the hearing, viewed in light of the prosecutor’s seventeen years of experience litigating domestic violence

cases. The court accordingly accepted the nolle prosequi and denied the defendant’s motion for dismissal.

This appeal followed.5

Translated from Latin, the term ‘‘nolle prosequi’’

means ‘‘to be unwilling to prosecute.’’ Webster’s New

International Dictionary (2d Ed. 1941) p. 1465; see also

Black’s Law Dictionary (10th Ed. 2014) p. 1210 (‘‘not

to wish to prosecute’’). We have explained that ‘‘a nolle

is, except when limited by statute or rule of practice

. . . a unilateral act by a prosecutor, which ends the

pending proceedings without an acquittal and without

placing the defendant in jeopardy.’’ (Citations omitted;

internal quotation marks omitted.) Cislo v. Shelton, 240

Conn. 590, 599 n.9, 692 A.2d 1255 (1997). ‘‘Although

the entry of a nolle prosequi results in the defendant’s

release from custody, he can . . . be tried again upon
a new information and a new arrest.’’ (Citation omitted.)

State v. Lloyd, supra, 185 Conn. 201; see Practice Book

§ 39-31 (‘‘The 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.’’).

Section 54-56b strikes a balance between ‘‘the state’s

right to enter a nolle prosequi in a pending prosecution

and the defendant’s constitutional right to a speedy

trial.’’ State v. Lloyd, supra, 185 Conn. 200. ‘‘Until the

enactment of General Statutes § 54-46 (now § 54-56b)

in 1975, and the promulgation of Practice Book § 2137

[now § 39-30] in 1976,6

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.’’ (Footnote added.) Id., 201. Pursuant

to § 54-56b, that discretion is no longer without limit. As

a general rule, a nolle may not enter over a defendant’s

objection and demand for a trial or dismissal. See General Statutes § 54-56b. Although there is an exception

to that general rule when the prosecutor represents to

the court that ‘‘a material witness has died, disappeared

or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary’’; General Statutes § 54-

56b; the prosecutor’s exercise of discretion in entering

the nolle is subject to review by the court for abuse of

discretion. See State v. Lloyd, supra, 204. We emphasize,

however, that once the prosecutor has represented that

one of the exceptions applies, the trial court must allow

the nolle to enter unless it concludes that the prosecutor

has abused her discretion in arriving at that decision.

As we have explained, ‘‘[t]he 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.’’ (Emphasis

added.) Id.

The level of judicial review of the exercise of prosecutorial discretion is a deferential one, akin to ‘‘the review

of the exercise of judicial discretion . . . .’’ Id. In Lloyd,

when this court first interpreted the effect of § 54-56b

on the prosecutor’s discretion to enter a nolle, we

explained that, in determining whether a prosecutor’s

representations were sufficient to overcome a defendant’s objection, the trial court ‘‘need not receive evidence, and thus makes no findings of fact, to determine

the accuracy of the state’s representations.’’ Id. Our

interpretation of § 54-56b did not suggest that the statute shifted power from the executive to the judiciary

by allowing the judiciary to substitute its judgment for

that of the executive.

The authorities that we relied on in Lloyd support

the view that, rather than inviting courts to substitute

their judgment for that of the prosecutor, the limited
purpose of § 54-56b was to protect defendants from

abuses of prosecutorial discretion. One of the primary

decisions on which we relied, United States v. Cowan,

524 F.2d 504 (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), explains the rationale underlying

the deferential level of review applied to the prosecutor’s entry of a nolle. In that case, the United States

Court of Appeals for the Fifth Circuit reversed the judgment of the federal District Court, which had denied

the prosecutor’s motion to dismiss pending criminal

proceedings pursuant to rule 48 (a) of the Federal Rules

of Criminal Procedure and, when the government

refused to proceed, appointed special prosecutors. Id.,

505. Rule 48 of the Federal Rules of Criminal Procedure

provides in relevant part: ‘‘(a) The government may,

with leave of court, dismiss an indictment, information

or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.

. . .’’ (Emphasis added.) The Fifth Circuit explained

that the issue presented in the appeal was ‘‘the extent

to which the phrase ‘[with] leave of court’ in [r]ule 48

(a) limits or conditions the [common-law] power of the

[government] to dismiss an indictment without leave

of court.’’ United States v. Cowan, supra, 505–506.

Similar to § 54-46b, rule 48 (a) of the Federal Rules of

Criminal Procedure has modified the previous, absolute

authority enjoyed by federal prosecutors to dismiss

charges. The phrase ‘‘with leave of court’’ established

a judicial check on that formerly absolute power. See

id., 513. The court explained that the rule was not

intended, however, ‘‘to confer on the [j]udiciary the

power and authority to usurp or interfere with the good

faith exercise of the [e]xecutive power to take care that

the laws are faithfully executed. [Rule 48 (a)] was not

promulgated to shift absolute power from the [e]xecutive to the [j]udicial [b]ranch. Rather, it was intended

as a power to check power. The [e]xecutive remains

the absolute judge of whether a prosecution should be

initiated and the first and presumptively the best judge

of whether a pending prosecution should be terminated.

The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially

disturbed unless clearly contrary to manifest public

interest. In this way, the essential function of each

branch is synchronized to achieve a balance that serves

both practical and constitutional values.’’ Id.; see also

United States v. Ammidown, 497 F.2d 615, 620 (D.C.

Cir. 1973) (observing that role conferred on judiciary

by rule 48 [a] of Federal Rules of Criminal Procedure

was ‘‘role of guarding against abuse of prosecutorial

discretion’’). Like rule 48 (a), § 54-46b allows for a deferential review by the courts of a prosecutor’s entry of

a nolle, solely to protect against prosecutorial abuses

of discretion.7

It is highly significant that a prosecutor is an officer
of the court, who owes a duty of candor to the tribunal.

See Rules of Professional Conduct 3.3. Due to their

function, in fact, prosecutors are held to an even higher

standard than other attorneys. We have observed that

‘‘[the prosecutor] is not only an officer of the court,

like every attorney, but is also a high public officer,

representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent.’’

(Internal quotation marks omitted.) State v. Medrano,

308 Conn. 604, 612, 65 A.3d 503 (2013); see also A.B.A.,

Standards for Criminal Justice: Prosecution Function

(4th Ed. 2015) standard 3-1.2 (b) (‘‘The primary duty of

the prosecutor is to seek justice within the bounds of

the law, not merely to convict. The prosecutor serves

the public interest and should act with integrity and

balanced judgment to increase public safety both by

pursuing appropriate criminal charges of appropriate

severity, and by exercising discretion to not pursue

criminal charges in appropriate circumstances. The

prosecutor should seek to protect the innocent and

convict the guilty, consider the interests of victims and

witnesses, and respect the constitutional and legal

rights of all persons, including suspects and defendants.’’ [Emphasis added.]), available at https://

www.americanbar.org/groups/criminal justice/

standards/ProsecutionFunctionFourthEdition.

Our decision today should not be read to suggest that

trial courts should function as ‘‘rubber stamps’’ for a

prosecutor’s decision to enter a nolle. Abuse of discretion review is precisely what it sounds like—upon a

defendant’s objection, § 54-56b requires a court to

review the prosecutor’s decision to enter a nolle for

abuse of discretion, on the basis of the prosecutor’s

representations at the hearing. The mere fact that the

court’s review is a deferential one does not mean that,

in every instance, a court must accept the nolle. A recent

decision of the Appellate Court provides a helpful illustration. In State v. Richard P., 179 Conn. App. 676, 678,

680, 181 A.3d 107, cert. denied, 328 Conn. 924, 181 A.3d

567 (2018), the Appellate Court affirmed the judgment

of dismissal rendered by the trial court after the state

entered a nolle and the defendant objected. In that case,

the defendant had been charged ‘‘with various offenses

arising from his alleged physical and sexual abuse of

his children.’’ Id., 678. When the state entered a nolle,

it represented to the court that the children and their

mother were ‘‘ ‘unavailable’ ’’ because they had moved

to London, England. Id., 680. In response, the defendant

moved to dismiss the charges, and, in support, submitted a letter from the mother, which the court reviewed,

in which the mother expressed dissatisfaction with the

manner in which the state had conducted its investigation and handled the case. Id. The mother closed the

letter by requesting: ‘‘ ‘Please do not contact me again.’ ’’

Id., 680 n.3. The trial court granted the motion to dismiss

on the basis that the prosecutor had not ‘‘sufficiently
represented that a material witness had died, disappeared, or become disabled within the meaning of § 54-

56b and Practice Book § 39-30 . . . .’’ Id., 681. On

appeal, the state contended, inter alia, that the two

children ‘‘ ‘had become disabled’ ’’ within the meaning

of § 54-56b. Id. The state argued that the children had

become ‘‘disabled’’ when their mother relocated them

to England because, due to their age and location, they

lacked the legal ability to return to Connecticut to testify. Id., 685. The Appellate Court rejected that argument

and also rejected the state’s expansion of the term ‘‘disabled’’ to extend beyond situations that involve a

‘‘ ‘[g]ood faith disagreement about what constitutes disability’ ’’ pursuant to Lloyd. Id., 683 n.6, quoting State

v. Lloyd, supra, 185 Conn. 205.

In the present case, in contrast to State v. Richard

P., supra, 179 Conn. App. 676, the prosecutor’s representations fell within the range of a good faith disagreement

regarding the meaning of ‘‘disabled’’ pursuant to § 54-

56b. Accordingly, the trial court properly relied on those

representations to find that the prosecutor was not

abusing her discretion in a manner clearly contrary to

manifest public interest. Contrary to the defendant’s

representation of the record, the prosecutor did not

rely solely on J’s stated fear of testifying in asserting

that J had ‘‘become disabled’’ for purposes of § 54-56b.

Instead, as we explained in this opinion, the prosecutor

made various representations consistent with the position that J suffered from a disability that prevented

her from being able to testify.8 Those representations

included that J stated that she suffered from bouts of

depression and crying, needed counseling, was afraid

and could not stop thinking about the incident. Nothing

in the record suggests that the prosecutor was acting

with an intent to harass the defendant or otherwise

acting in abuse of her discretion. Given the prosecutor’s

representations, the trial court properly deferred to the

prosecutor’s exercise of discretion and allowed the

nolle to enter.

The decision of the trial court is affirmed.

In this opinion the other justices concurred.

1 General Statutes § 54-56b provides: ‘‘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, except with respect

to prosecutions in which a nolle prosequi is entered 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 has been destroyed and that a further investigation is therefore necessary.’’

2 The defendant appealed from the decision of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General

Statutes § 51-199 (c) and Practice Book § 65-1.

3

In accordance with our policy of protecting the privacy interests of the

victims of domestic violence, we decline to identify J or others through

whom J’s identity may be ascertained. See General Statutes § 54-86e.

4 The defendant does not challenge on appeal the state’s claim that J was

a material witness.

5 Prior to oral argument, this court sua sponte ordered the parties to be

prepared to address whether the appeal had become moot in light of the

fact that, by November 6, 2018, when the case was argued to this court,
more than thirteen months had passed since the underlying charges were

nolled, and the functional equivalent of a dismissal had entered by operation

of law. See General Statutes § 54-142a (c) (1) (‘‘Whenever any charge in a

criminal case has been nolled in the Superior Court, or in the Court of

Common Pleas, if at least thirteen months have elapsed since such nolle,

all police and court records and records of the state’s or prosecuting attorney

or the prosecuting grand juror pertaining to such charge shall be erased

. . . .’’); Cislo v. Shelton, 240 Conn. 590, 607–608, 692 A.2d 1255 (1997)

(discussing dismissal by operation of law pursuant to § 54-142a).

At oral argument, the defendant contended that, as to the felony charges,

the case is not moot because the statute of limitations will not run on

those offenses until 2021. Moreover, the defendant argued, a dismissal after

thirteen months pursuant to § 54-142a (c) (1) is one without prejudice as

opposed to a dismissal pursuant to § 54-56b following a defendant’s objection

to the state’s entry of a nolle, which is with prejudice.

We agree with the defendant that the appeal is not moot as to the felony

charges of strangulation in the second degree in violation of General Statutes

(Rev. to 2015) § 53a-64bb and assault in the second degree in violation of

§ 53a-60 (a) (1). The entry of a nolle plus the passage of thirteen months

results in the functional equivalent of a dismissal without prejudice. See

State v. Smith, 289 Conn. 598, 612, 960 A.2d 993 (2008); Cislo v. Shelton,

supra, 240 Conn. 599. ‘‘Such a dismissal does not preclude the state from

filing charges—even the same ones—at a later time, provided that the statute

of limitations has not run.’’ State v. Smith, supra, 612.

Because the statute of limitations had run as to the three misdemeanor

charges—threatening in the second degree in violation of General Statutes

(Rev. to 2015) § 53a-62 (a) (1), unlawful restraint in the second degree in

violation of § 53a-96 (a) and interfering with an emergency call in violation

of § 53a-183b (a), the appeal is moot as to those three charges.

6 Practice Book § 39-30 provides: ‘‘Where a prosecution is initiated by

complaint or information, the defendant may object to the entering of a

nolle prosequi at the time it is offered by the prosecuting authority and may

demand either a trial or a dismissal, except when a nolle prosequi is entered

upon a representation to the judicial authority by the prosecuting authority

that a material witness has died, disappeared or become disabled or that

material evidence has disappeared or has been destroyed and that a further

investigation is therefore necessary.’’

7 We acknowledge that there are substantive differences between § 54-

46b and rule 48 (a) of the Federal Rules of Criminal Procedure. This court

relied in Lloyd on the authorities that interpreted rule 48 (a), however,

merely for the general principles that underlie both rules to guide this court

in balancing, on the one hand, the need to protect defendants against abuses

of prosecutorial discretion, and, on the other hand, the recognition that the

Judicial Branch should not interfere with a prosecutor’s good faith exercise

of prosecutorial discretion.

8 The defendant’s argument that the prosecutor abused her discretion by

failing to attempt to overcome J’s alleged disability by serving her with a

material witness subpoena is unpersuasive. At the hearing, the prosecutor

represented that she had concluded that, as of the time of trial, J was unable

to testify due to her disability. Although a material witness subpoena is

an appropriate measure for a prosecutor to take to overcome a witness’

unwillingness to testify, a subpoena cannot overcome an inability to testify.

The defendant’s argument is implicitly premised on the primary argument

that he advances on appeal—the defendant contends that J was not unable,

but unwilling, to testify. As we explained in this opinion, however, it was

not the task of the trial court—and it is certainly not the task of this court—

to second guess the prosecutor’s judgment that J was disabled.

For similar reasons, the defendant’s argument that, as a matter of statutory

interpretation, the prosecutor’s representations were insufficient to support

a finding by the trial court that J was disabled have no bearing on the

resolution of this appeal. First, as we explained in this opinion, the defendant’s argument incorrectly represents the record. The prosecutor did not

rely solely on J’s fear in representing that J suffered from a disability that

prevented her from being able to testify. Second, the trial court properly

made no finding as to whether J was actually disabled. It properly considered

only whether the prosecutor had abused her discretion in entering the nolle.