State v. Albarelli

• Decision Date: 18 February 2011
• Docket Number: No. 09–191.,09–191.
• Citation: 19 A.3d 130,2011 VT 24
• Parties: STATE of Vermontv.Brian ALBARELLI.
• Court: Vermont Supreme Court

19 A.3d 130

2011 VT 24

STATE of Vermont

v.Brian ALBARELLI.

No. 09–191.

Supreme Court of Vermont.

Feb. 18, 2011.

Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Andrew R. Strauss, Deputy State's Attorney, Burlington, for Plaintiff–Appellee.Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Alfred Waldstein, Law Clerk, Montpelier, for Defendant–Appellant.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.DOOLEY, J.

¶ 1. Defendant Brian Albarelli appeals his conviction and sentence for disorderly conduct. He maintains that (1) the jury did not have sufficient evidence of threatening behavior to convict him of disorderly conduct; (2) his waiver of trial counsel was not knowing and intelligent and therefore was ineffective; and (3) the trial court's construction of the disorderly conduct statute was vague and overbroad and accordingly punished constitutionally protected speech. Because we agree that the jury did not have sufficient evidence before it to convict defendant of disorderly conduct, we reverse and do not reach the other issues that defendant raised.

¶ 2. On September 19, 2008, a little more than a month before the United States general election, defendant approached a “Vermonters for Hope” table that was stationed on the Church Street Mall in Burlington.¹ The purpose of the table was to register voters and promote Barack Obama's presidential campaign. On that day, it was staffed by a volunteer. Defendant engaged the volunteer, stating that he was confused and unsure of who to vote for. Although he initially approached the table “sheepishly,” his demeanor soon changed, and his behavior “began to escalate a little.” He started ranting about the Obama candidacy and grew agitated as he talked about Zbigniew Brzezinski, a former National Security Advisor to President Carter who endorsed the Obama campaign. His voice “rose a bit,” he became “more adamant” about what he was saying, and he started to act “like he was on a soap box.” One volunteer noted that at this point his behavior “was very distracting,” and she asked him to leave, stating that she “didn't want to argue with him” and that she didn't “want to have to call the police on [him].” Defendant, however, persisted in his rant. Although much of what he was saying “wasn't making a lot of sense,” witnesses reported that defendant was “loudly expressing his views,” accusing Obama of being a terrorist, and “basically insinuating that [those people] ... approaching the table to register to vote ... were terrorists.” At times, his hands were in his pockets or his arms were crossed across his chest; at other times his hands were “gesturing wildly.” He had been at the table for about 20 minutes when two police officers arrived. The police determined that the table volunteer would press charges against him if defendant did not leave. Defendant then left.

¶ 3. At the time of defendant's actions, the volunteer was on the opposite side of the table, with the table between her and defendant. She testified that she felt threatened during this incident “because [defendant's] voice was raised, he was yelling,” and he was “angry,” and because of “his persistence in staying there,” his “pacing, and his adamancy about what he was saying.” She stated that she felt threatened by “the tone, the escalation of what [defendant was] saying, and the way [he was] saying it,” and because “it was almost ... like [he was] intentionally disrupting me registering ... somebody to vote.” She testified that defendant's conduct was “unnerving” and “I felt threatened. I felt afraid.” At the same time, she noted that she did not believe that defendant was going to hit her—just that he had been “a little close for comfort.”

¶ 4. The second eyewitness who testified was at the table during most of the incident in order to register to vote. She testified that although defendant was “[a]ggressive, hostile, fidgety, [and] nervous” during the incident, she could not recall him making any threats. She stated that he was giving “his views on Obama in ... [a] hostile, aggressive[ ], inappropriate way,” but that she felt that “[defendant] thought that that was the best way to let ... people know what he thought and what he believed to be true” and that “he thought that he was informing [the onlookers].” When she told defendant that she felt that he was expressing himself in an inappropriate way, “[h]e took a few steps closer” so that he was within two to three feet of her and intimated that he did not care how she felt about his behavior. She decided that she “was not talking to someone who was mentally stable.” She “was scared” because “I didn't really know what he was going to do.” She stated that “he was acting irrational ... [h]e was pacing, he was fidgeting, I thought he was on something.” She eventually held a clipboard up between her and defendant “sort of like ... here's the wall, ... don't come any closer,” because she “didn't feel comfortable.”

¶ 5. Two days later, on September 21, defendant again approached the Vermonters for Hope table, this time accompanied by another young man. The two men “completely cut ... off” the table from the stream of people on Church Street. Though he was not yelling, he was “sort of intense, and angry, and strange,” and one of the volunteers called the police. A uniformed police officer arrived soon thereafter. She asked defendant for his name and what the commotion was about. Defendant offered only that he was expressing his freedom of speech and that he did not have to give his name. When defendant persisted in this position, the officer issued him a citation to appear in court to answer a charge of disorderly conduct.

¶ 6. Defendant was charged in Chittenden District Court with one count of disorderly conduct in violation of 13 V.S.A. § 1026(1), a misdemeanor. The information indicated that the disorderly conduct occurred on September 19, 2008 ² and that defendant “recklessly created a risk of public inconvenience or annoyance when he engaged in violent, tumultuous or threatening behavior, TO WIT, by yelling aggressively.” ³ The charge generally tracked the statutory language, adding the “TO WIT” phrase to explain specifically how defendant violated the statute. Defendant appeared without counsel and indicated that he intended to represent himself, stating that he did not need a lawyer because his case was “clear cut.” After a jury trial, defendant was convicted and was given a sentence of four to five days on a work crew. He obtained counsel and filed a motion to dismiss and for a judgment of acquittal. After argument, and in advance of sentencing, the court denied the motion without explanation. Defendant then appealed to this Court.

¶ 7. Defendant challenges the disorderly conduct conviction on two grounds. First, defendant contends that the State did not present sufficient evidence to prove that he engaged in “threatening behavior.” Second, defendant argues that the trial court's construction of the disorderly conduct statute, 13 V.S.A. § 1026(1), punished constitutionally protected speech. Specifically, defendant maintains that the trial court's jury instruction that, to convict, the jury had to find that defendant “engage[ed] in threatening behavior by yelling aggressively” was erroneous because it permitted conviction based on “the tone and volume of speech with nothing more” and because the phrase “yelling aggressively” is vague and overbroad. Therefore, defendant alleges, the statute as applied to him by the trial court violates the First Amendment to the United States Constitution and Chapter I, Article 13 of the Vermont Constitution.

¶ 8. We do not reach the jury instruction issue because we conclude that the evidence was insufficient to convict. To reach the evidence sufficiency issue, however, we must examine the governing statute and how the court instructed the jury on the elements of the offense.

¶ 9. Disorderly conduct statutes have long raised free speech concerns. See, e.g., Gregory v. City of Chicago, 394 U.S. 111, 121, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969) (Black, J., concurring) (noting “serious First Amendment problems” raised by city disorderly conduct ordinance). In an effort to mitigate such concerns, many states, including Vermont, have modeled their statutes after the Model Penal Code, which limits the types of conduct that can be classified as disorderly. See State v. Read, 165 Vt. 141, 147, 680 A.2d 944, 948 (1996); 13 V.S.A. § 1026; see, e.g., Conn. Gen.Stat. § 53a–182 (2001); N.Y. Penal Law § 240.20 (McKinney 2008); N.D. Cent.Code § 12.1–31–01 (2001). Vermont's disorderly conduct statute provides a common intent element: “with intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof.” 13 V.S.A. § 1026. It then contains five alternative specifications of the criminal conduct. The alternative charged in this case is that defendant engaged “in fighting or in violent, tumultuous or threatening behavior.” Id. § 1026(1). As we have previously held, the language of the statute properly interpreted proscribes conduct, not speech, and therefore does not penalize speech. Read, 165 Vt. at 146, 680 A.2d at 947; see State v. Begins, 147 Vt. 45, 48, 509 A.2d 1007, 1009 (1986) (rejecting vagueness challenge to “violent, tumultuous or threatening behavior” provision in 13 V.S.A. § 1026(1)). Courts considering identical provisions from other states have reached the same conclusion. See e.g., State v. Indrisano, 228 Conn. 795, 640 A.2d 986, 995 (1994) (noting that Connecticut's provision “proscribes conduct”); People v. Stephen, 153 Misc.2d 382, 581 N.Y.S.2d 981, 983 (Crim.Ct.1992) (concluding that relevant subdivision “quite clearly punishes conduct ... rather than speech”); State v. Bornhoeft, 2009 ND 138, ¶ 11, 770 N.W.2d 270 (“It is important to distinguish between disturbing or threatening conduct proscribed by the...