State v. Bellamy

• Decision Date: 23 July 1985
• Docket Number: No. 2967,2967
• Citation: 4 Conn.App. 520,495 A.2d 724
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Frank BELLAMY.

Page 724

495 A.2d 724

4 Conn.App. 520

STATE of Connecticut v. Frank BELLAMY.

No. 2967.

Appellate Court of Connecticut.

Argued May 7, 1985.

Decided July 23, 1985.

Steven M. Sellers, Deputy Asst. State's Atty., with whom, on the brief, was James L. Radda, Deputy Asst. State's Atty., for appellant (state).

Clarance J. Jones, New Haven, for appellee (defendant).

Before DUPONT, C.P.J., and HULL and BORDEN, JJ.

BORDEN, Judge.

The defendant was arrested pursuant to a warrant and charged in an information with the crime of harassment in violation of General Statutes § 53a-183. Upon the defendant's timely motion, the trial court dismissed the information on three separate bases: (1) there was no probable cause for the issuance of the warrant; (2) since the state's "offer of proof" showed that no violation of General Statutes § 53a-183 could have been committed, the information should be dismissed pursuant to General Statutes § 54-56; and (3) the defendant's alleged written communications, which formed the basis of the offense charged, were protected free speech. The state appealed, claiming that the court erred in each of these conclusions and that the information, therefore, should be reinstated. We agree.

I

Before we address the state's claims, it is necessary to resolve an issue involving our subject matter jurisdiction over this appeal. The defendant claims that this appeal by the state is not properly before us because the trial court denied the state permission to appeal, which is required by General Statutes § 54-96. We hold that, under the circumstances of this case, we do have subject matter jurisdiction over the appeal.

On March 22, 1983, the trial court granted the defendant's motion to dismiss and denied the state's prompt, oral motion for permission to appeal. On May 17, 1983, in response to a motion for review filed by the state, the Appellate Session of the Superior Court ordered the trial court to articulate the basis of its denial of permission to appeal, in particular to specify the facts found, the principles of law applied to the facts and the reasons for its conclusions. On May 31, 1983, the trial court further articulated its decision by specifying the reasons for its granting of the motion to dismiss but not specifying its reasons for the denial of permission to the state to appeal. On June 28, 1983, the Appellate Session granted the state's motion for review and set aside the denial of permission to appeal. Through administrative oversight, however, notice of this decision was not sent to the proper assistant state's attorney handling the case. Upon learning of this, on January 18, 1984, this court reissued the notice of the action of the Appellate Session. The state thereafter promptly filed its appeal in this court.

It is true that, pursuant to General Statutes § 54-96, the permission of the trial court is a prerequisite to the right of the state in a criminal case to appeal, and that ordinarily the discretionary decision of the trial court will not be disturbed. State v. Avcollie, 174 Conn. 100, 109-110, 384 A.2d 315 (1977). ¹ It is also true, however that the statute does not preclude an appeal where the state promptly expressed its intention at the time of the judgment and the court's denial was so arbitrary as to be an extreme abuse of discretion. Id., 110, 384 A.2d 315.

Here, the state promptly requested permission to appeal when the trial court rendered its judgment. In responding to the mandate of the Appellate Session, the court offered no reasons for its denial of permission to appeal. The questions presented to the trial court, and thus to this court, are by no means clear and simple, and are of some consequence. Implicit in the decision of the Appellate Session was the determination that the denial of permission to appeal was, under these circumstances, so arbitrary as to be an extreme abuse of discretion, a determination with which we agree. We conclude, therefore, that the appeal is properly before us.

II

We agree with the state that the trial court erred in holding that the affidavit supporting the arrest warrant did not establish probable cause that the defendant committed the crime of harassment in violation of General Statutes § 53a-183. The applicable part of that statute provides as follows: "(a) A person is guilty of harassment when ... (2) with intent to harass, annoy or alarm another person, he communicates with a person by ... any ... form of written communication, in a manner likely to cause annoyance or alarm...."

The affidavit, signed by Detective Robert J. Cappullo, ² of the New Haven police department, provided essentially as follows: On August 5, 1982, Cappullo responded to a call from the East Shore Waste Water Treatment Plant, where he spoke with the complainant, Moshe Kopman, and his supervisor, Kenneth Maltese. Kopman and Maltese told him that on August 4, 1982, they discovered that seventy-four swastikas had been drawn on a pump sheet, which is a sheet of paper left out on a desk at the plant for the purpose of recording pump readings every two hours. Cappullo made a copy of the pump sheet, but could not reliably process it for fingerprints because everyone at the plant had access to it.

The affidavit further recited that Kopman is an Orthodox Jew who displays himself as such by wearing a small cap on his head and by indicating his beliefs. Until recently, Kopman, who has worked at the plant for two years, worked on a different shift. He is the only Orthodox Jew employed at the plant; the only other Jew is not Orthodox and works on a different shift.

Cappullo attempted unsuccessfully to determine who had drawn the swastikas. No one had seen anyone draw them and no one admitted to having drawn them.

On August 8, 1982, Cappullo again responded to a complaint by Kopman by going to the plant. Kopman and Maltese had another pump sheet, dated August 6, 1982, which had nineteen swastikas drawn on it. They were drawn on the shift on which Kopman works. Cappullo made a copy of this pump sheet.

On August 12, 1982, Cappullo obtained information from Maltese that an employee on Kopman's shift knew who had access to the August 6, 1982 pump sheet between the time it was blank and the time it had the swastikas drawn on it. This employee was Nicholas S. Weted, who came to the police department and gave the following statement: On August 6, 1982, on the midnight shift, Weted put out a blank pump sheet. The defendant, also an employee of the plant, entered the room, picked up the sheet and sat down with it at the desk across from Weted. No one else was in the room. Weted left the room for less than one minute and remained right outside it. The wall of the room is all glass. Weted did not see anyone enter the room. Only the defendant was in the room. Weted reentered the room. The defendant was still at the desk with the sheet in front of him. A co-worker entered the room, and he and the defendant left the room. Weted looked at the sheet and saw the swastikas drawn on it. Weted identified Cappullo's copy of the August 6, 1982 sheet as a copy of the same sheet.

Maltese told Cappullo that the defendant had been an employee for two years and had been acting erratically lately. Cappullo researched the swastika symbol and stated that it was originated in the 1920s by the German Nazi Party, a major premise of which was anti-Semitism.

The standard by which probable cause is gauged is less than the standard of whether a prima facie case is made out. "Instead, all that is required is that the affidavit, read in a common-sense manner, give objective evidence of a fair probability that proscribed activity has occurred." State v. Heinz, 193 Conn. 612, 617, 480 A.2d 452 (1984). In applying that standard we must give "substantial deference ... to the decision of the judicial authority that issued the warrant." Id., 618, 480 A.2d 452.

It is not necessary to go through the specifics of the affidavit, item by item. Suffice it to say that, applying the standard articulated in State v. Heinz, supra, we conclude that the affidavit was sufficient to establish probable cause that the defendant, with the intent to harass, annoy or alarm Kopman, communicated with Kopman by means of the pump sheets with the swastikas on them, and that this was done in a manner likely to cause Kopman annoyance or alarm. ³ General Statutes § 53a-183(a)(2).

III

As an alternate ground of its decision the trial court relied on General Statutes § 54-56. That statute provides that the court "may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial."

The court reasoned that, because the state's "offer of proof" indicated that no violation of General Statutes § 53a-183(a)(2) could have occurred, invocation of General Statutes § 54-56 was appropriate. The state argues that the statute, which permits such a motion to dismiss "at any time," unconstitutionally collides with Practice Book §§ 815(5) and 816, ⁴ which prohibit a defendant who has been arrested pursuant to a warrant from making such a motion. Thus, the state claims, the statute is in violation of the principle of separation of powers and must yield to the Practice Book rule. See, e.g., State v. King, 187 Conn. 292, 296-98, 445 A.2d 901 (1982).

We agree that the trial court erred by applying General Statutes § 54-56 in this case, but for reasons different from those advanced by the state. We conclude that General Statutes § 54-56 simply does not apply to this case. Therefore, we need not decide the constitutional claim of the state.

We note, first, that contrary to the court's assertion, the state did not make any "offer of proof," formally or informally, that the contents of the affidavit would...