State v. Cavallo

Citation200 Conn. 664,513 A.2d 646
CourtSupreme Court of Connecticut
Decision Date05 August 1986
PartiesSTATE of Connecticut v. John CAVALLO.

William J. St. John, Jr., Waterbury, for appellant (defendant).

David S. Shepack, Deputy Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and HEALEY, SHEA, CALLAHAN and KINNEY, JJ.

PETERS, Chief Justice.

The principal issue in this case is whether the Connecticut statute that prohibits tampering with witnesses is unconstitutionally vague. After a jury trial, the defendant, John Cavallo, was convicted of tampering with a witness in violation of General Statutes § 53a-151. He appeals from this judgment.

The jury could reasonably have found the following facts. On several occasions during the early months of 1984, the defendant, a Watertown police officer, allowed a seventeen year old woman to accompany him in his police cruiser. The couple often drank alcohol while together in the cruiser. On April 17, 1984, the chief of the Watertown police department, after learning of the defendant's activities, discharged the defendant from the police force for violating department policies against carrying civilians and using intoxicating liquors in police vehicles. The defendant denied the police chief's allegations and, through his union representative, notified the department that he intended to bring the matter to arbitration.

On April 18, the defendant met with the woman he had entertained in the cruiser and informed her of his dismissal. He told her that if investigators questioned her about their relationship, she should tell them that she had never been in the defendant's police cruiser and should deny any knowledge of the defendant's social use of the vehicle. On April 24, the defendant called the woman in Florida, where she was vacationing, and reiterated these instructions. 1 On May 1, after the woman had returned to Connecticut, the defendant again implored her to tell investigators nothing. During the conversation, he informed her that he was going to sue the town and promised her that he would "reimburse" from the proceeds of the suit anyone who "stuck by him."

When police investigators questioned the woman on May 2, she claimed that she had never been in the defendant's police cruiser and that the defendant was guilty of no misconduct. After the session had ended, the defendant called the woman to determine whether she had divulged any incriminating information and to request that she continue to remain silent about their use of the police cruiser.

The defendant initiated arbitration proceedings on May 14, 1984. On July 10, 1984, the woman gave police investigators a full account of her visits with the defendant in his cruiser and informed them of the defendant's attempts to persuade her to deny that these activities had ever occurred.

On appeal, the defendant raises three claims of error. He argues that: (1) General Statutes § 53a-151 is void for vagueness; (2) the state produced insufficient evidence at trial to support his conviction; and (3) the sentence imposed by the trial court is excessive. We find no error.

I

In his first claim of error, the defendant mounts a twofold attack on the validity of General Statutes § 53a-151 2 under the United States constitution. 3 He initially contends that the statute is impermissibly vague in its application to the facts of this case. He then argues that, even if the statute is valid as applied in this case, it is unconstitutionally vague on its face and should not be enforced. We are persuaded by neither of these contentions.

A

The defendant claims that, because General Statutes § 53a-151 does not clearly define as illegal his conduct in this case, the statute is void for vagueness as applied to him. We disagree.

The standard that we use to determine whether a statute is void for vagueness under the fourteenth amendment to the United States constitution is well established. " 'A statute ... [that] forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. Baggett v. Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377 [1964]; Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 [1926]. Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.' Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 [1975]; State v. Hurliman, 143 Conn. 502, 509, 123 A.2d 767 [1956]." State v. Chetcuti, 173 Conn. 165, 167, 377 A.2d 263 (1977); see Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983); State v. Perruccio, 192 Conn. 154, 158, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S.Ct. 55, 83 L.Ed.2d 6 (1984); State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980).

As applied to the defendant in this case, the language of General Statutes § 53a-151 satisfies this test. According to the statute, "[a] person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding." The defendant does not challenge the precision of the terms "witness" and "official proceeding," which are defined in General Statutes § 53a-146. 4 Instead, he claims that the statute's flaw lies in its failure to define the term "induces or attempts to induce." Ambiguity in this phrase, he argues, made it impossible for him to have known in advance whether the statute proscribed his conduct in this case. We reject this contention.

The language of § 53a-151 plainly warns potential perpetrators that the statute applies to any conduct that is intended to prompt a witness to testify falsely or to refrain from testifying in an official proceeding that the perpetrator believes to be pending or imminent. The legislature's unqualified use of the word "induce" clearly informs persons of ordinary intelligence that any conduct, whether it be physical or verbal, can potentially give rise to criminal liability. Although the statute does not expressly mandate that the perpetrator intend to cause the witness to alter or withhold his testimony, this implicit requirement is apparent when the statute is read as a whole. See Norwich v. Silverberg, 200 Conn. 367, 371, 511 A.2d 336 (1986); Grodis v. Burns, 190 Conn. 39, 44, 459 A.2d 994 (1983); P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159-60, 454 A.2d 1258 (1983). By limiting the statute's application to situations where the perpetrator believes that an official proceeding is pending or about to be instituted, the legislature indicated that it did not envisage outlawing conduct that inadvertently convinces a witness to testify falsely or to refuse to testify. The legislature's choice of the verb "induce" connotes a volitional component of the crime of tampering that would have been absent had it employed a more neutral verb such as "cause." Furthermore, the statute's application to unsuccessful, as well as successful, attempts to induce a witness to render false testimony supports our conclusion that the statute focuses on the mental state of the perpetrator to distinguish culpable conduct from innocent conduct. 5 See II A.L.I., Model Penal Code and Commentaries (1980) § 241.6, comment, 166-71.

The defendant in this case repeatedly instructed a potential witness to fabricate her account of their relationship. He also apparently promised her a possible pecuniary reward for protecting him. In light of the statute's plain language, we cannot say that § 53a-151 did not give the defendant fair warning that this course of conduct was illegal.

B

The defendant next claims that, even if his conduct clearly falls within the proscriptions of General Statutes § 53a-151, the statute is unconstitutionally vague on its face and should not be enforced. 6 We disagree.

Before reaching the merits on this issue, we must, as a preliminary matter, determine whether the defendant has standing to raise this claim. Ordinarily, when a litigant challenges a statute as void for vagueness under the United States constitution, we confine our inquiry to the statute's applicability to the facts of the case. State v. Perruccio, supra, 192 Conn. 158, 471 A.2d 632; State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984). Where, however, a challenged statute, if vague, could intrude on fundamental constitutional guarantees such as first amendment rights, we will refuse to enforce the statute if we find that it is unconstitutionally vague on its face. 7 State v. Pickering, supra, 180 Conn. 57, 57 n. 3, 428 A.2d 322; see Smith v. Goguen, 415 U.S. 566, 573, 573 n. 10, 94 S.Ct. 1242, 1247, 1247 n. 10, 39 L.Ed.2d 605 (1974); Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972); Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959). In this case, General Statutes § 53a-151 applies to inducement, which is a communicative form of conduct. Because such a statute could, if drafted ambiguously, impinge upon rights of expression protected by the first amendment, we will review the defendant's claim that the statute is facially invalid.

Our inquiry into the facial validity of a statute focuses on whether indefiniteness in the meaning of the statute could reasonably create uncertainty over whether the statute prohibits expression that is protected by the first amendment. Such ambiguity is unconstitutional for two reasons: (1) it may deter individuals from exercising their first amendment freedoms for fear of incurring criminal liability and (2) it vests enforcement officials with undue discretion to interfere with the right to freedom of speech. See...

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    ...§ 53a–151, which prevents tampering with witnesses. See State v. Ortiz, supra, 312 Conn. at 568–70, 93 A.3d 1128 ; State v. Cavallo, 200 Conn. 664, 668–69, 513 A.2d 646 (1986).20 Campbell testified at trial that on the evening of the attempted robbery, the defendant expressed concerns to he......
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