State v. Bell

• Decision Date: 26 October 1999
• Docket Number: (AC 17999)
• Citation: 55 Conn. App. 475,739 A.2d 714
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. FRANK BELL

55 Conn. App. 475

739 A.2d 714

STATE OF CONNECTICUT v. FRANK BELL

(AC 17999)

Appellate Court of Connecticut.

Argued June 8, 1999.

Officially Released October 26, 1999.

O'Connell, C. J., and Sullivan and Daly, Js. Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, assistant state's attorney, with whom, on the brief, were Mark S. Solak, state's attorney, and Debra Hughes, assistant state's attorney, for the appellee (state).

Opinion

DALY, J.

The defendant, Frank Bell, appeals from the judgments of conviction, rendered after a trial to the court, of harassment in the second degree in violation of General Statutes § 53a-183 (a) (3), criminal trespass in the first degree in violation of General Statutes § 53a-107 and falsely reporting an incident in violation of General Statutes § 53a-180. The defendant claims that (1) he was improperly convicted on the harassment charge because his telephone calls were protected speech, (2) § 53a-183 (a) (3) is unconstitutionally vague as applied to him, (3) the evidence was insufficient to support his conviction for harassment, (4) the evidence was insufficient to support his conviction for criminal trespass and (5) the evidence was insufficient to support his conviction for falsely reporting an emergency. We affirm two of the judgments and reverse the judgment of conviction of criminal trespass in the first degree. The following facts are necessary for a proper resolution of this appeal. The defendant and Evelyn Grajales, although unmarried, lived together and had two children. Grajales also had a child from a previous relationship, who lived with her and the defendant. At some point, the couple's relationship began to deteriorate. As a result, in April, 1996, Grajales enrolled the children in the family preservation program of Quinnebaug Valley Youth and Family Services (program).¹

On April 2, 1996, the defendant began calling the program to express concern about it. Between April and August, 1996, the defendant made approximately forty-five telephone calls to various employees of the program. Thirty-six of the calls were voice mail messages that were recorded. In these messages, the defendant criticized employees and used language that made them feel threatened with bodily harm to themselves or to their families. Moreover, the defendant used language that the employees construed to mean that he could cause them to be fired, would embarrass them publicly or that they would be subject to divine justice. On September 11, 1996, the defendant was charged with harassment.

On November 4, 1996, the Superior Court entered an order requiring the defendant to vacate the apartment he shared with Grajales and enjoining him from entering or remaining in the building anytime after November 11, 1996.

On November 17, 1996, the defendant went to the apartment complex. Grajales saw him standing near the apartment abutting her apartment. Their children were in the yard of the apartment complex. When the defendant called to his children for a hug, Grajales ordered him to leave and told him that he was violating the court order. She then entered her apartment and called the police, at which point the defendant left. The defendant later was charged with criminal trespass.

On December 16, 1996, the defendant called Detective John H. Wackerman of the Willimantic police department and requested that the police send an officer to Grajales' residence because he believed she was not giving the children an antibiotic that was prescribed for them. In response, Wackerman told the defendant to contact the department of children and families (department) with his complaint, and the defendant responded by hanging up the telephone. Wackerman then called the department and spoke with social worker Jeffrey Cushner, who said that after seeing the children earlier that day, he did not feel that there was a medical emergency with them.

About one hour later, the defendant again called the police. Wackerman, hearing the call on his radio, drove to meet with the defendant. The defendant told him that Grajales' failure to give the children the antibiotic was a "medical emergency." Believing that the defendant was making his second false report of the day, Wackerman arrested him.

I

The defendant first claims that the trial court improperly convicted him of harassment in the second degree because his telephone calls to the program were protected speech. Specifically, the defendant claims he was exercising his federal first amendment right to speak on matters of public concern, since his calls related to the safety and welfare of children. Alternatively, the defendant claims that his speech is protected because it "did not fall into an unprotected category." We disagree.

Conceding that his claim is unpreserved, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).² We will review his claim pursuant to Golding because the record is adequate for review and the claim is of constitutional magnitude. The defendant's claim, however, fails under the third prong of Golding.

General Statutes § 53a-183 (a) provides in relevant part that "[a] person is guilty of harassment in the second degree when ... (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm."

"The essence of an overbreadth challenge is that a statute that proscribes certain conduct, even though it may have some permissible applications, sweeps within its proscription conduct protected by the first amendment.... Overbroad statutes, like vague ones, inhibit the exercise of constitutionally protected conduct.... A party has standing to raise an overbreadth claim, however, only if there [is] a realistic danger that the statute will significantly compromise recognized First Amendment protections of parties not before the Court...." (Citations omitted; internal quotation marks omitted.) State v. Snyder, 49 Conn. App. 617, 623, 717 A.2d 240 (1998).

The appellate session of the Superior Court previously rejected a claim that § 53a-183 (a) (3) is facially overbroad. "As venerated a place as freedom of speech may hold in the constitutional scheme, reasonable regulation of the place and manner of its exercise has been upheld consistently.... Where the means of communication involves an intrusion upon privacy, the right of free expression must be balanced against the right to be let alone.... A telephone is not a public forum where, in vindication of our liberties, unreceptive listeners need to be exposed to the onslaught of repugnant ideas.... The overbreadth principle is not violated by the unrestricted scope of the messages which the statute may ban because it is the manner and means employed to communicate them which is the subject of the prohibition rather than their content. The statute is not flawed because a recital on the telephone of the most sublime prayer with the intention and effect of harassing the listener would fall within its ban as readily as the most scurrilous epithet. The prohibition is against purposeful harassment by means of a device readily susceptible to abuse as a constant trespasser upon our privacy. That words may be the instrument of annoyance does not insulate such wrongful conduct from criminal liability." (Citations omitted.) State v. Anonymous (1978-4), 34 Conn. Sup. 689, 696, 389 A.2d 1270 (1978).

In a decision denying the petition filed by the defendant in Anonymous (1978-4) for a writ of habeas corpus, the United States Court of Appeals for the Second Circuit also determined that § 53-183 (a) (3) is not unconstitutionally overbroad. Gormley v. Director, Dept. of Probation, 632 F.2d 938, 942 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed.2d 485 (1980). "Clearly the Connecticut statute regulates conduct, not mere speech. What is proscribed is the making of a telephone call, with the requisite intent and in the specified manner." (Emphasis in original.) Id., 941-42. "The asserted overbreadth of the Connecticut statute is circumscribed by the elements of the offense it proscribes. To run afoul of the statute, a telephone call must be made not merely to communicate, but with intent to harass, annoy or alarm and in a manner likely to cause annoyance or alarm. Whether speech actually occurs is irrelevant, since the statute proscribes conduct, whether or not a conversation actually ensues." (Internal quotation marks omitted.) Id., 942.

We conclude that the defendant's telephone calls were not protected speech under the first amendment. Although the defendant claims that the statute prevents him from speaking out on matters of public concern, it merely prohibits purposeful harassment by use of the telephone and does not involve first amendment concerns. The statute proscribes conduct, not the content of the telephone calls. The risk that the statute will have a chilling effect on the exercise of free speech is therefore remote compared with the prevalent misuse of telephones to harass others and to invade their privacy.

II

The defendant's second claim is that § 53a-183 (a) (3) is unconstitutionally vague as applied to him because "he reasonably acted in reliance on the reasonable belief that his conduct was lawful" in expressing his complaints to the program. We disagree.

"The doctrine [of vagueness] requires statutes to provide fair notice of the conduct to which they pertain and to establish minimum guidelines to govern law enforcement. State v. Indrisano, 228 Conn. 795, 802, 640 A.2d 986 (1994). Our Supreme Court based its analysis in Indrisano on the three standards set out by the United States Supreme Court for evaluating vagueness. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence...