Stacy B. v. Southern

• Decision Date: 10 May 2016
• Docket Number: AC 38043
• Court: Connecticut Court of Appeals
• Parties: STACY B. v. ROBERT S.

STACY B. v. ROBERT S.^*

AC 38043

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 5, 2016

May 10, 2016

Alvord, Mullins and Schaller, Js.

(Appeal from Superior Court, judicial district of Waterbury, Hon. Wilson J. Trombley, judge trial referee.)

John R. Williams, for the appellant (defendant).

Craig C. Fishbein, for the appellee (plaintiff).

Opinion

SCHALLER, J. The defendant, Robert S., appeals from the granting of a civil protective order barring the defendant from stalking the plaintiff, Stacy B. On appeal, the defendant claims that the trial court erred in (1) failing to determine that his conduct qualified as constitutionally protected under the first amendment to the United States constitution and article first, §§ 4 and 5, of the Connecticut constitution;¹ and (2) finding that the conduct constituted stalking when the evidence was insufficient. We affirm the judgment of the trial court.

The plaintiff filed an application for a protective order pursuant to General Statutes § 46b-16a² on April 4, 2015, alleging that he was being stalked pursuant to General Statutes § 53a-181d³ by the defendant.⁴ Following a hearing, the trial court granted the plaintiff's application.

After citing the standard for stalking pursuant to § 53a-181d, the court found that "[t]he documentary evidence and the credible testimony of [the plaintiff] clearly demonstrates that [the defendant], having no justification to do so, embarked upon a course of conduct, the purpose of which was to impugn [the plaintiff's] professional competence, humiliate and degrade him as a person and thereby adversely affect, if not destroy, his ability to make a living from his chosen profession as a clinical forensic psychologist, who specializes in threat assessments for government and corporate entities." Specifically, it found that the parties were initially friends, but in 2011, the plaintiff asserted that the defendant began "to show signs of delusion and paranoia and was engaging in bizarre behavior," which motivated him to attempt to distance himself from the defendant. This attempt to distance himself "was unsuccessful and generated bizarre e-mails and voice messages which began to constitute harassment . . . ." The plaintiff filed complaints with the Norwalk Police Department, which resulted in warnings from two separate police officers that the defendant ignored.

The court highlighted a number of incidents that "would cause any reasonable person under the same circumstances to fear for his personal safety and to fear that his employment, business and career [were] thereby threatened." It found that the defendant had provided information regarding the plaintiff to the Connecticut Board of Firearms Permit Examiners, of which the plaintiff was a member, the State Board of Health, the American Psychological Association, and the Los Angeles Police Department, which had invited the defendant to speak as a guest lecturer at a threat management conference. This information consisted of a 2009 ex parte abuse prevention order issued by the Boston Municipal Court against the plaintiff, and various "e-mails and Internet postings . . . showing thata civil judgment, presently unsatisfied, was entered against [the plaintiff] by the Superior Court for the judicial district of New Britain for his nonpayment of a student loan from Jacksonville University. Other postings and . . . blogs questioned whether [the plaintiff] had a Florida criminal record and whether he attended, as claimed, Yale and Harvard Universities. [The plaintiff] denied the existence of any criminal record in any state and asserted at the hearing and in his resume . . . that he completed his predoctoral internship at Yale and his postdoctoral residency at Harvard."

The defendant also made comments about the plaintiff on Psychology Today, an online publication to which the plaintiff submitted several articles, referring to the Boston protective order and the unpaid civil judgment, and claiming that the plaintiff "was a 'dangerous individual' and a 'psychopath,' offering no rational basis to support that unwarranted and defamatory assertion." The defendant also provided "disparaging information about [the plaintiff] to [a security firm for which the plaintiff did consulting work on a routine basis] that was purposed to challenge his professional competence and impugn his character." The defendant "referred company officials to a [website], clearly authored by him, entitled 'The Truth About [Stacy B.],' wherein, inter alia, detailed information about the Boston protective order and the unpaid judgment could be found and wherein he [referred] to [the plaintiff] as 'a very sick man.' " The trial court also stated that the defendant continued to provide copies of the e-mail that he had sent to the Connecticut Board of Firearms Permit Examiners "to several third parties, including [the plaintiff's] past, present and potential clients."

The court also found that "[m]ost concerning to this court is [the plaintiff's] credible claim that one week prior to the filing of [the plaintiff's] application seeking a civil protective order, [the defendant] contacted officials employed by the school system where [the plaintiff's] son is in the fourth grade and where [the plaintiff] is a member of that community's school safety board. [The defendant] apparently warned the school official that [the plaintiff] was 'a danger to children.' This incident, and other alarming and irrational conduct detailed herein, engaged in by [the defendant], has reasonably caused [the plaintiff] to fear that he was being 'hunted' by [the defendant] and to take certain precautions, including obtaining a post office box, registering his new car in his wife's premarital name, and hiring an Internet company to delete any derogatory information about him that was electronically posted."

The court then noted that despite its cautionary advisement that its finding could result in criminal prosecution for stalking and disciplinary action against the defendant, an attorney, for violation of the Rules of Professional Conduct, the defendant had again con-tacted the Los Angeles Police Department regarding the plaintiff, regardless of warnings by both the court and a police officer. It then found that "there is reasonable cause to believe [the defendant] is likely to continue acts that are designed to intimidate or retaliate against [the plaintiff], a finding that is statutorily mandated and is a prerequisite to the granting of the relief sought by [the plaintiff]." It then ordered "that [the plaintiff's] application for a civil protective order is granted. [The defendant] is enjoined from: 1. Assaulting, threatening, abusing, harassing, following, interfering with, or stalking [the plaintiff]; 2. Entering the home of [the plaintiff] or any place in which he may reside and entering the office of [the plaintiff] or any place where he may be employed; 3. Contacting [the plaintiff] in any manner, including by written, electronic or telephone contact, and contacting his home, workplace or others with whom such contact would be likely to cause annoyance or alarm to [the plaintiff]; 4. Contacting any person, including, but not limited to [the plaintiff's] past, current and prospective clients, family members and his child's educators in any manner for any purpose; 5. Creating any fictitious websites the purpose of which is to disseminate any information concerning [the plaintiff]; and 6. Posting any information, whether adverse or otherwise, pertaining to [the plaintiff] on any website for any purpose."

Following the court's judgment, the defendant appealed to this court. In his appeal, he claims that the trial court erred in (1) failing to determine that his conduct qualified as constitutionally protected speech under the first amendment to the United States constitution and article first, §§ 4 and 5, of the Connecticut constitution; and (2) finding that the conduct constituted stalking when the evidence was insufficient. At oral argument before this court, he further asserted that a case recently decided by our Supreme Court, Gleason v. Smolinski, 319 Conn. 394, 125 A.3d 920 (2015), is relevant to his first amendment claim. We conclude that the defendant failed to properly preserve his constitutional claim in the trial court, and failed to present an adequate record for us to review it. We affirm the trial court on the defendant's second claim to the extent that it is sufficiently presented to us.

IFIRST AMENDMENT CLAIM

The defendant claims that the court abused its discretion in granting the plaintiff's application for a civil protective order because his conduct was protected by the first amendment to the United States constitution, or by article first, §§ 4 and 5, of the Connecticut constitution. This claim was not preserved in the trial court. We consider unpreserved claims of constitutional magnitude according to the requirements of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), which thedefendant failed to brief. Due to the defendant's failure to provide sufficient analysis of the requirements of Golding or of the controlling first amendment standard, and the lack of an adequate record to review any such constitutional claim, we decline to review this claim.

In Golding, our Supreme Court held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (...