State of Connecticut v. Margaret E. McCarroll (2012)

MEMORANDUM OF DECISION RE MOTIONS TO TRANSFER VENUE ¹ HEARING ON FEBRUARY 23, 2012

On February 22, 2012, the defendant, Margaret E. McCarroll, filed motions to transfer venue ² 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 before this court on February 23, 2012.

The defendant moves to transfer venue pursuant to General Statutes § 51–347b.   In her memorandum of law in support of the motions, the defendant argues that she is indigent and deserving of a public defender, but that she is unable to avail herself of those services because she lacks the funds to transport herself to and from Bantam and there is no public transportation option available in the area.   Currently, the defendant has a private attorney, but states that the attorney has asked to withdraw from her case for financial reasons.³  According to the defendant, she would be able to avail herself of the services of a public defender if the case were transferred to the Superior Court in Hartford County, or any other location where public transportation is available to the defendant.

Additionally, the defendant argues that she cannot be forced to take a nolle prosequi, per General Statutes § 54–56b.   According to the defendant, she will be forced to accept a nolle prosequi because she will be unable to pay for counsel to transport her to the courthouse and is unable to afford a rental car for the duration of the trial.   The defendant asserts that the transfer of venue would permit her to reject the proposed nolle prosequi.

Finally, the defendant contends that the present matter is both a civil and criminal case, arising from a civil situation occurring in both Litchfield and Hartford counties.⁴  The defendant asserts that she has been legally residing in Hartford County for seven years and General Statutes § 51–345 permits civil process to be returned to the judicial district where either the plaintiff or the defendant resides.⁵  According to the defendant, because the case is both criminal and civil, transfer of venue to Hartford County is appropriate.

The State did not file an objection to the motions but orally objected at the hearing.   The State argues that the defendant's inconvenience is not enough to warrant change of venue in criminal cases.   Rather, according to the State, the defendant must demonstrate that she is unable to receive a fair and impartial trial in the jurisdiction.   The State contends that the defendant has not met this burden.

Pursuant to General Statutes § 51–352(a), “[e]ach person charged with any offense shall be tried in the judicial district in which the offense was committed, except when it is otherwise provided.”   The phrase “otherwise provided” means “otherwise regulated by statute ․” (Emphasis in original.)   State v. Meehan, 62 Conn. 126, 127, 25 A. 476 (1892).  General Statutes § 51–353 provides that “[a]ny judge holding a criminal session of the superior court may, upon motion, order any criminal case pending in the court to be transferred to the superior court for any other judicial district, and any person bound to appear in the case shall appear before the court for the judicial district to which it is transferred.   The judge ordering the transfer may require an additional recognizance for the appearance of the accused before such court.”  Practice Book § 41–23 provides that “[u]pon motion of the prosecuting authority or the defendant, or upon its own motion, the judicial authority may order that any pending criminal matter be transferred to any other court location:  (1) If the judicial authority is satisfied that a fair and impartial trial cannot be had where the case is pending;  (2) If the defendant and the prosecuting authority consent;  or (3) Where the joint trial of informations is ordered pursuant to Section 41–19 and the cases are pending in different judicial districts or geographical areas.”

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).

In the present case, the defendant has not demonstrated that she is unable to receive a fair and impartial trial.   Accordingly, the motions to transfer venue are denied.

BY ORDER OF THE COURT,

Marano, J.

FOOTNOTES

FN1. Pursuant to Practice Book § 41–23, the defendant should have filed a Motion to Transfer Prosecution..  FN1. Pursuant to Practice Book § 41–23, the defendant should have filed a Motion to Transfer Prosecution.

FN2. The defendant, pro se, filed a motion to transfer venue and the defendant's attorney also filed a separate motion to transfer venue.   The motions filed by the defendant and her attorney are substantively identical and will be addressed collectively..  FN2. The defendant, pro se, filed a motion to transfer venue and the defendant's attorney also filed a separate motion to transfer venue.   The motions filed by the defendant and her attorney are substantively identical and will be addressed collectively.

FN3. In the motion filed by the defendant's attorney, the attorney asserts that the defendant “currently relies on her private attorney for transportation to the Bantam court, which is a strain on her attorney as well who does not practice law in Litchfield County but attends hearings in Bantam just for the defendant and must close down his office for nearly a full day to attend just a single court hearing for this client who cannot even afford to pay him.”   The assertion by the attorney that his representation of the defendant is causing a financial hardship to his law practice, however, is not a proper basis for the granting of a motion to transfer venue in criminal cases..  FN3. In the motion filed by the defendant's attorney, the attorney asserts that the defendant “currently relies on her private attorney for transportation to the Bantam court, which is a strain on her attorney as well who does not practice law in Litchfield County but attends hearings in Bantam just for the defendant and must close down his office for nearly a full day to attend just a single court hearing for this client who cannot even afford to pay him.”   The assertion by the attorney that his representation of the defendant is causing a financial hardship to his law practice, however, is not a proper basis for the granting of a motion to transfer venue in criminal cases.

FN4. The defendant asserts that she and the victim were in a dating relationship, and that the actions underlying the present criminal case resulted from a civil situation between them.   The present matter, however, is a criminal case..  FN4. The defendant asserts that she and the victim were in a dating relationship, and that the actions underlying the present criminal case resulted from a civil situation between them.   The present matter, however, is a criminal case.

FN5. The defendant also argues that the matter was not placed on the family docket prior to being placed on the criminal docket, pursuant to General Statutes § 46b–2.   The defendant asserts that the “[victim] has filed orders in civil court that have qualified the case as family violence.”.  FN5. The defendant also argues that the matter was not placed on the family docket prior to being placed on the criminal docket, pursuant to General Statutes § 46b–2.   The defendant asserts that the “[victim] has filed orders in civil court that have qualified the case as family violence.”

Marano, Richard M., J.