State v. Avnayim

• Decision Date: 09 July 1962
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 24 Conn.Supp. 7 STATE of Connecticut v. David E. AVNAYIM. CR 1-3102.

Page 295

185 A.2d 295

1 Conn.Cir.Ct. 348, 24 Conn.Supp. 7

STATE of Connecticut v. David E. AVNAYIM.

CR 1-3102.

Circuit Court of Connecticut, Appellate Division.

Argued April 19, 1962.

Decided July 9, 1962.

David M. Wise, Stamford, for appellant (defendant).

William L. Tierney, Jr., Pros. Atty., for appellee (state).

PRUYN, Judge.

From his conviction of the crimes of disorderly conduct, in violation of § 53-175 of the General Statutes, and of resisting arrest, in violation of § 53-165, the defendant has appealed, assigning as error the conclusion of the trial court that on all the evidence he was guilty of both crimes beyond a reasonable doubt and that § 53-175 is constitutional.

Since the defendant has assigned as error that he was not, upon all the evidence, guilty beyond a reasonable doubt of each of the two crimes mentioned above, there was no finding by the trial court. Cir.Ct.Rule 7.31.1. Accordingly, this court has examined the entire evidence.

The determination of the credibility of the witnesses and the weight to be given to the testimony of each witness is the exclusive function of the trial court, and with its opportunity to observe the witnesses on the stand its conclusion is rarely disturbed. State v. Coulombe, 143 Conn. 604, 607, 124 A.2d 518. It is not the function of this court to substitute its judgment on the facts for that of the trial court.

From the testimony, some of which was conflicting, the court could have reasonably found the following facts. The defendant was traveling south on West Avenue in Stamford and was involved in a collision, in the intersection of West Avenue with Waverly Place, with a car which was being driven easterly on Waverly Place by one Kutnik. A Stamford police officer, Williams, had been traveling north on West Avenue and was stopped for a red light at the intersection at the time of the accident. The light was green for Kutnik. Officer Williams summoned the police department accident car, which was operated by Officer Dujack, who investigated the accident and questioned Kutnik and the defendant. The defendant became belligerent and boisterous, was sarcastic and evasive in his answers, kept shouting, 'None of your business; you are here only to take down numbers; I can say what I want,' and argued, insisting loudly that the light was green in his favor. A crowd of sixty to seventy persons had gathered. Both officers warned the defendant to quiet down and keep his voice down and to answer questions decently or he would be arrested for disorderly conduct. The defendant kept on shouting and repeating his statements, and thereupon Officer Dujack arrested the defendant for disorderly conduct and told him to get into Officer Williams' patrol car. Since the defendant refused and said he was not going to go and that no one was going to put him in the car, Officer Dujack had to take him forcibly and put him in the car. The defendant did not menace, threaten or strike the police officers, nor was it necessary to use handcuffs, nor for Officer Williams to assist Officer Dujack. Eventually, Officer Dujack obtained from the defendant the information necessary for the accident report.

There was considerable testimony as to the operation of the traffic light, and the court held that the state had failed to prove beyond a reasonable doubt that the light was red against the defendant. Therefore, the court found the defendant not guilty of passing a red light.

Section 53-175 of the General Statutes provides as follows: 'Any person who, by offensive or disorderly conduct, annoys or interferes with any person in any place * * *, although such conduct may not amount to an assault or battery,' shall be punished. The crime of disorderly conduct is purely statutory; it did not exist at common law, and, therefore, the basic elements of the crime must be found in the language of the statute. State v. Reynolds, 243 Minn. 196, 66 N.W.2d 886. The term 'disorderly conduct' signifies generally 'any behavior that is contrary to law, and more particularly such as tends to disturb the public peace or decorum, scandalize the community, or shock the public sense of morality.' Black, Law Dictionary (3d Ed.). 'The word 'disorderly' is a word that is almost self-explanatory as it is ordinarily used. When used in a legal sense it has a well established meaning relating to the public peace and good order. When the term is used in relation to public offenses it means that a situation over which the individual has control is not being regulated by the restraint of morality; that compliance with the restraints of good order and law is lacking. 'Disorderly conduct' generally means some act which tends to breach the peace or to disturb those people who may hear or see it. For a person to be guilty of disorderly conduct the public or some member thereof must be disturbed.' State v. Reynolds, supra, 199, 66 N.W.2d 889. There are two elements which must concur in order to constitute the crime: the conduct of the accused and the effect of such conduct on a member of the public. There must be an annoyance to or interference with someone in a public place by conduct which is offensive or disorderly. People v. St. Clair, 90 App.Div. 239, 86 N.Y.S. 77 (N.Y.).

The statute is not intended to prevent a person from protesting his innocence or from questioning a police officer or complaining against a policeman's unlawful actions but he must do so in a quiet and respectable way and not in such a way as to create a commotion or disturbance. Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 4 L.Ed.2d 654; People on Complaint of Koehler v. Magnes, 187 N.Y.S. 913 (Gen.Sess.); 27 C.J.S. Disorderly Conduct § 1(4) f p. 519. Although the defendant was not obliged to answer the questions asked by the police and could not be legally arrested for refusing to do so, his belligerent and boisterous conduct, apart from his right to refuse to answer questions and apart from his right to protest his innocence, was such as to create a commotion or disturbance and thus render him liable to arrest for disorderly conduct.

The defendant argues that § 53-175 is unconstitutional because it fails to set up any definite standards, that the words 'offensive' and 'disorderly' are vague and not sufficiently explicit so that one can know what conduct is prohibited, and that...