State v. Caracoglia

Citation38 A.3d 226,134 Conn.App. 175
Decision Date13 March 2012
Docket NumberNo. 32699.,32699.
CourtAppellate Court of Connecticut
PartiesSTATE of Connecticut v. Salvatore CARACOGLIA.

OPINION TEXT STARTS HERE

Salvatore Caracoglia, pro se, the appellant (defendant).

Melissa L. Streeto, assistant state's attorney, with whom, on the brief, were Timothy J. Liston, state's attorney, and Jeffrey Doskos, supervisory assistant state's attorney, for the appellee (state).

GRUENDEL, BEACH and FLYNN, Js.

FLYNN, J.

The self-represented defendant, Salvatore Caracoglia, appeals from the judgment of conviction of two counts of the infraction of creating a public disturbance in violation of General Statutes § 53a–181a (a)(1) and (2), respectively. He was convicted after a court trial and has appealed on grounds that: (1) both subdivisions of the statute are facially vague, (2) the court improperly overruled the defendant's objection to an amendment to the information, (3) the court improperly overruled a defense “objection” to the state's failure to produce a tape recording of a 911 emergency telephone call made in connection with the incident that gave rise to the charges, (4) the defendant improperly was denied the right to a trial by jury, (5) the court denied the defendant's right to compulsory process to require the attendance of certain witnesses in his defense case and (6) the evidence did not suffice to establish the required mens rea for the commission of the infractions. We affirm the judgment of the trial court.

The record reveals the following procedural history and facts, which the trial court reasonably could have found. The Middletown Chamber of Commerce maintains a kiosk near 386 Main Street in Middletown where the public can post flyers and other paperwork to publicize job openings, activities and events taking place throughout the town. Sometime between noon and 12:30 p.m. on October 24, 2009, the defendant was using a large hammer stapler to staple flyers onto the kiosk in such a manner as to cover and to obscure the other business and activity flyers already in place. By the time the defendant had covered at least two rows of flyers, Elizabeth Santangelo (Mrs. Santangelo), a member of the Chamber of Commerce, had exited 386 Main Street and began removing the defendant's flyers out of concern that they were obstructing the view of the flyers that were underneath. Mrs. Santangelo was not positioned near the defendant, and the defendant had his back toward her when she began removing the flyers. At no point during her subsequent interaction with the defendant did Mrs. Santangelo become physical or touch him.

The defendant confronted Mrs. Santangelo once he realized that she was removing his flyers. Mrs. Santangelo explained that the kiosk was maintained by the local Chamber of Commerce and that the defendant could not obstruct the other flyers. The defendant insisted that he had a right to post his flyers and yelled at Mrs. Santangelo in a loud manner. As Mrs. Santangelo continued her attempt to converse with the defendant, the defendant grabbed her shirt, which prompted her to yell: “Don't touch me.” The defendant took a step toward Mrs. Santangelo and raised the hammer stapler over his head in a threatening manner.1 Mrs. Santangelo stated, “go ahead hit me,” to which the defendant responded, “I don't have to hit you,” adding that he “could punch [her] and knock [her] down.” Mrs. Santangelo felt threatened and terrorized.

Officer Brian White of the Middletown police department was dispatched to the scene and arrived at approximately 12:30 p.m. Once Mrs. Santangelo was aware of the officer's presence, she recommenced the removal of the defendant's obstructive flyers from the kiosk. The defendant, acting in an angry and agitated state, as witnessed by Officer White, then approached Mrs. Santangelo and struck her on the right forearm. The defendant acknowledged that he made physical contact with Mrs. Santangelo, but claimed that he only “used [his] hand to move her hand” away from the flyers. The defendant also admitted to raising the hammer stapler over his head and acknowledged placing it into his vehicle prior to the arrival of the police. After a court trial, the court, Vitale, J., rendered a judgment of conviction on July 28, 2010, of two counts of the infraction of creating a public disturbance in violation of § 53a–181a (a)(1) and (2), respectively. This appeal followed.

I

We first address the defendant's facial vagueness claim. There are two categories of impermissible vagueness of statutes. The first is facial vagueness in which no matter what the factual setting, the challenged legislative enactment is so lacking in standards and so amorphous as to give a person subject to it no real notice of what it proscribes so that conduct can be conformed to it. The second category is vagueness as applied to a particular factual situation. The defendant's claim is that § 53a–181a (a)(1) and (2), creating infractions of creating a public disturbance, are vague and that they impinged on his first amendment rights. We therefore analyze the claim as one of unconstitutional facial vagueness and reject his contention in reliance on our Supreme Court's decision in State v. Indrisano, 228 Conn. 795, 801, 804, 640 A.2d 986 (1994), in which the court determined in examining a similar claim made in relation to a similar statute that the language of the statute was not facially vague.

[A] penal statute [must] define [a] criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.... [This concept] embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement.... [T]he [most] important aspect of the vagueness doctrine is not actual notice ... but ... the requirement that a legislature establish minimal guidelines to govern law enforcement.... Thus, [i]n order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited ... and must not impermissibly [delegate] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.... Finally, [i]f the meaning of a statute can be fairly ascertained [the] statute will not be void for vagueness ... for [i]n most English words and phrases there lurk uncertainties.... [T]he statute must contain some core meaning within which the defendant's actions clearly fall.... References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute's meaning to determine if it gives fair warning....

“For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue.... [T]o prevail on his claim, the defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement.” (Internal quotation marks omitted.) State v. Stephens, 301 Conn. 791, 801–802, 22 A.3d 1262 (2011).

In the present case, the defendant claims that the creating a public disturbance infractions violated his first amendment right to free speech. We therefore review and analyze this appellate claim as challenging the constitutionality of the statute on its face, because the defendant claims that the statute is vague and ambiguous in that it lacks a core meaning. We examine the words of the statute and prior judicial gloss put on it to determine whether the statute gives proper notice of the conduct it proscribes so that it does not impinge on free speech rights guaranteed by the first amendment to the United States constitution. See State v. Ryan, 48 Conn.App. 148, 153–54, 709 A.2d 21, cert. denied, 244 Conn. 930, 711 A.2d 729, cert. denied, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998).

Our Supreme Court in State v. Indrisano, supra, 228 Conn. at 809, 640 A.2d 986, adopted a judicial gloss on a similarly worded statute prohibiting the misdemeanor of disorderly conduct in violation of General Statutes § 53a–182. Like the statutory infractions of which the defendant was convicted, the disorderly conduct statute requires that the state prove that the defendant's predominant intent was to cause, what a reasonable person operating under contemporary community standards would consider, a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation or a feeling of anxiety as to threatened danger or harm. Id., at 810, 640 A.2d 986. The court stated that a defendant's “predominant intent must be to cause inconvenience, annoyance or alarm, rather than to exercise his constitutional rights.” Id., at 809, 640 A.2d 986. It also defined inconvenience as representing “something that disturbs or impedes,” annoyance as representing “vexation; a deep effect of provoking or disturbing,” and finally alarm as “filled with anxiety as to threatening danger or harm.” Id., at 810, 640 A.2d 986. The court held that as to mens rea, the predominant intent must be “to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.” Id.

The defendant acknowledges that the disorderly conduct language so construed by the court in Indrisano is identical to the language of the creating a public disturbance statute. Our Supreme...

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