Reid v. Commissioner of Correction

• Decision Date: 10 January 2006
• Docket Number: No. 24947.,24947.
• Citation: 93 Conn.App. 95,887 A.2d 937
• Court: Connecticut Supreme Court
• Parties: Benjamin REID v. COMMISSIONER OF CORRECTION.

Page 937

887 A.2d 937

93 Conn.App. 95

Benjamin REID v. COMMISSIONER OF CORRECTION.

No. 24947.

Appellate Court of Connecticut.

Argued October 25, 2005.

Decided January 10, 2006.

Jeffrey C. Kestenband, Middletown, for the appellant (petitioner).

Terrence M. O'Neill, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Rebecca Rodriguez, legal intern, for the appellee (respondent).

SCHALLER, DRANGINIS and BISHOP, Js.

SCHALLER, J.

The petitioner, Benjamin Reid, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that the condition of his parole that his release not be "incompatible with the welfare of society" was not void for vagueness and therefore constitutional. We affirm the judgment of the habeas court.

The following facts and procedural history are germane to our discussion. In 1957, the petitioner was convicted of murder and sentenced to death. His death sentence was commuted to life in prison and, in 1985, the petitioner was released on parole. On November 19, 1985, the petitioner signed a document that set forth the conditions of his parole. Paragraph eleven of the document stated: "Your release on parole is based upon the conclusion of the Parole Panel that there is a reasonable probability that you will live and remain at liberty without violating the law and that your release is not incompatible with the welfare of society. In the event that you engage in conduct in the future which renders this conclusion no longer valid, then your parole will be revoked or modified accordingly."¹ The terms of the petitioner's parole permitted him to reside in the commonwealth of Massachusetts. He complied with the conditions of his parole for several years.

In April, 1996, the petitioner was introduced to Karen Bryant, an ordained elder in the United Methodist Church and the pastor of the Church of All Nations in Boston, Massachusetts. The petitioner attended a counseling session with Bryant. Her initial impressions were that the petitioner was a "very sweet, gentle, humble, scared, vulnerable, confused human being who needed help." The petitioner, however, had not revealed to Bryant the extent of his criminal history. At the end of the session, Bryant invited the petitioner to attend her church and to participate in various activities, such as group sessions and prayer meetings.

The petitioner falsely informed Bryant that soon he would be a "free man. . . ." He claimed to be terrified by the thought of living without the oversight of his parole conditions. At that point, the petitioner had been living in a homeless shelter, and asked Bryant to hold $600 that he had received so that it would not be stolen.² Bryant agreed to that request and, because several thefts had occurred at the church, placed the petitioner's money in her personal bank account.

Bryant then noticed a change in the petitioner. He began to form an "obsessive" attachment to her.³ For example, the petitioner would stop by the church on a daily basis to see her and tell her that "God sent [her] to be [his]." He presented her with gifts of flowers and perfume. Finally, although it was common behavior for the individuals in the church to hug one another, the petitioner intensified his physical contact with Bryant and would touch her "waist and down below. . . ." Bryant indicated to the petitioner that this type of physical contact was inappropriate and not acceptable.⁴ The petitioner's unwarranted touching reached its apex during the week of May 13, 1996, during an incident in Bryant's office. As the two began to hug, the petitioner placed his hands on Bryant's buttocks and thrust his pelvis into her, so as to simulate sexual intercourse. Bryant immediately separated from the petitioner and told him that he had to leave. The petitioner smiled strangely and stated, "That's all right babe, I will wait for you to know."

The petitioner displayed hostility toward Bryant following her return from a three day conference in Maine. Bryant noticed the change in the petitioner following her business trip. She described him as "deadly cold." The petitioner made statements to Bryant that caused her to be concerned for her safety. Specifically, he stated: "You fucking bitch, your ass is grass, I see how it is. I promise I'm going to bring you down. You are history." He expanded on that by telling her that he was "going to bring [her] down by the end of the week" and promised her that she was going to suffer. Bryant informed the petitioner that he was threatening her life and causing her to be frightened. She told him that if he did not cease such conduct, she would be forced to inform the police department. She reminded the petitioner of the likely effect that would have on his status as a parolee. The petitioner responded: "You go right ahead and call the police and put me in prison. I do not care what happens to me. I am not happy in prison or out of prison. I just want one thing. I want to see you suffer. You put me in prison, I will drag you into court, I will put your name in the newspapers. I promise you, you bitch, one way or the other, I'm going to bring you down." Those statements, along with the look on the petitioner's face, caused Bryant great distress.⁵ The petitioner made a similarly threatening telephone call to Bryant's residence.

On May 28, 1996, Bryant and the building manager of the church, Samuel Barrows, waited in her office so that she could return the balance of the petitioner's money to him.⁶ After she gave him the money, the petitioner stated: "Now, I am going to do what I have to do. . . ." After the petitioner left, Barrows cautioned Bryant that the petitioner's "face of hate meant business" and that she should contact the police. Bryant notified the police and obtained a restraining order against the petitioner. Criminal charges also were filed against the petitioner, alleging that he had sexually assaulted Bryant. As a result of those charges, a warrant was issued for his arrest.

A parole violation report was completed on June 5, 1996. It alleged that the petitioner violated his parole on the basis of his conduct on May 28, 1996, that led the Suffolk Superior Court to issue a restraining order for threats made to Bryant. The board of parole (board) issued a notice of parole violation to the petitioner that indicated that he had violated paragraph eleven of the conditions of his parole.⁷ Specifically, the notice stated: "By virtue of your actions on or about [May 28, 1996] with respect to the following: Boston, Mass. Police Incident Report, Restraining Order issued by Suffolk Superior Court for threats on a life, and details found within said documents as well as the victim's statement, you are in violation of the above Parole condition."

A hearing was held before the board on January 7, 1997. At the conclusion of that hearing, the board revoked the petitioner's parole.⁸ In a letter dated January 8, 1997, the board notified the petitioner of the reasons for the revocation. In the letter, the board specifically credited Bryant's testimony and explained that it had found that the petitioner's testimony lacked credibility. The board indicated that through Bryant's testimony, it was established that the petitioner had made unwanted sexual advances and contact with Bryant and had threatened her, resulting in the issuance of a restraining order by the Massachusetts court. The board ultimately found that the prior determination that his release on parole would not be incompatible with the welfare of society was therefore no longer valid.⁹

On December 27, 2001, the petitioner filed a four count petition for a writ of habeas corpus. On November 19, 2003, the court issued its memorandum of decision denying the petition. The court, inter alia, rejected the petitioner's claim that the phrase "incompatible with the welfare of society" was unconstitutionally vague. On December 5, 2003, the court granted the petition for certification to appeal. Additional facts will be set forth as necessary.

On appeal, the sole issue raised by the petitioner is that the condition of his parole that his release not be "incompatible with the welfare of society" is unconstitutionally vague. Before we can reach the merits of his claim, however, we must first determine whether that condition is subject to a facial challenge or limited to consideration on the basis of the facts presented. We conclude that because the challenged condition does not substantially implicate the petitioner's first amendment rights, our review is limited to an as applied vagueness challenge.

At the outset, we set forth certain legal principles that guide our resolution of the petitioner's appeal. "[I]n passing upon the constitutionality of a legislative act, we will make every presumption and intendment in favor of its validity. . . . The party challenging a statute's constitutionality has a heavy burden of proof; the unconstitutionality must be proven beyond all reasonable doubt." (Internal quotation marks omitted.) Rudy's Limousine Service, Inc. v. Dept. of Transportation, 78 Conn.App. 80, 89, 826 A.2d 1161 (2003); see also Hammond v. Commissioner of Correction, 259 Conn. 855, 876, 792 A.2d 774 (2002).¹⁰ Accordingly, "[t]he court will indulge in every presumption in favor of the statute's constitutionality [and][w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear." (Citation omitted; internal quotation marks omitted.) State v. Long, 268 Conn. 508, 521, 847 A.2d 862, cert. denied, ___ U.S. ___, 125 S.Ct. 424, 160 L.Ed.2d 340 (2004).

The petitioner has raised a constitutional vagueness challenge. Our Supreme Court has stated that "[t]he void for vagueness doctrine is a procedural due process concept...