State v. Cook

• Decision Date: 03 June 2008
• Docket Number: No. 17995.,17995.
• Citation: State v. Cook, 287 Conn. 237, 947 A.2d 307 (Conn. 2008)
• Parties: STATE of Connecticut v. Daniel COOK.
• Court: Connecticut Supreme Court

947 A.2d 307

287 Conn. 237

STATE of Connecticut v.Daniel COOK.

No. 17995.

Supreme Court of Connecticut.

Argued January 2, 2008.

Decided June 3, 2008.

Kent Drager, senior assistant public defender, for the appellant(defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Marc R. Durso, assistant state's attorney, for the appellee(state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA and SCHALLER, Js.

PALMER, J.

Following an incident in which the defendant, Daniel Cook, allegedly threatened another person with a table leg, a jury found him guilty of carrying a dangerous weapon in violation of General Statutes §§ 53-206(a)¹and53a-3(7).²The trial court rendered judgment in accordance with the jury verdict,³ and the defendant appealed.⁴On appeal, the defendant claims that (1)the trial court improperly failed to instruct the jury that the state was required to prove that the defendant's use or threatened use of the table leg constituted a "true threat," that is, a serious expression of an intent to commit an act of unlawful violence against another, and (2) because the evidence adduced at trial was insufficient to support such a finding, he is entitled to a judgment of acquittal.We agree with the defendant's claim of instructional impropriety but disagree with his claim of evidentiary insufficiency.We therefore reverse the judgment of conviction and remand the case for a new trial.

The jury reasonably could have found the following facts.In 2004, the defendant, a sixty-two year old man with mental and emotional problems, had been living in an apartment building located at 71 Truman Street in Bridgeport for approximately six years.In March 2004, Peter DelFranco, who then was seventy-one years old, moved into the apartment next door to the defendant.The two men got along well at first, but the relationship between them soon soured.In mid-April, DelFranco placed the first of numerous calls to the Bridgeport police complaining that he was being kept awake at night by the sound of water running in the defendant's bathroom, and by a radio, which he could hear through the "paper" thin walls separating the defendant's and DelFranco's apartments.Police who responded to the calls informed DelFranco that there was nothing that they could do and that he should complain to the building manager, which he did.Around this time, DelFranco commenced a petition drive among the other residents of the building to have the defendant evicted, and, thereafter, the landlord commenced a summary process action against the defendant.An attorney friend of DelFranco told him that if the defendant were to be arrested for some reason, that fact could be used against him in the eviction proceeding.

In the afternoon on June 28, 2004, DelFranco was in his apartment when a neighbor knocked on his door and informed him that the defendant was riding the building elevator with a wooden table leg in his hand.DelFranco immediately went out into the hallway and sat down in a chair located near the elevator to wait for the defendant.Soon thereafter, the elevator door opened, and the defendant appeared, carrying the table leg.DelFranco told the defendant, "[t]hat's a weapon because you got a piece of metal sticking out the top of it."While waving the table leg, the defendant responded, "[t]his is for you if you bother me anymore."DelFranco asked the defendant to repeat what he had said and then asked him, "[w]hat are you shaking that at me for?"DelFranco then told the defendant that if he did "it again ... [he would] call the police."The defendant laughed at DelFranco and again waved the table leg.According to DelFranco, he then went into his apartment and, with the door to his apartment open, called the police.Upon returning to the hallway, DelFranco resumed his seat near the elevator and observed that the defendant was still there, "waving" the table leg.

Shortly thereafter, Bridgeport police officer Eric Norton was dispatched to 71 Truman Street in response to a call that, according to the police, had been placed by the defendant, not DelFranco.Upon arriving, Norton proceeded to the defendant's apartment, where the defendant informed Norton that DelFranco previously had threatened him with a gun and had waved a cane at him earlier in the day.⁵Norton next spoke to DelFranco, who still was sitting in the hallway.DelFranco told Norton that he and the defendant were engaged in an ongoing dispute and that, earlier in the day, the defendant had waved a table leg at him and had threatened to hit him with it.Norton then went back to speak with the defendant, who told Norton that he carried the table leg for protection.Norton spoke to another building resident, Ralph A. Defeo, who informed him that, although he had not heard the defendant make any threatening remarks to DelFranco, he had seen him earlier in the day waving the table leg.⁶

The defendant subsequently was arrested and charged with threatening in the second degree in violation of General Statutes § 53a-62(a)(1), carrying a dangerous weapon in violation of §§ 53-206(a)and53a-3(7), and disorderly conduct in violation of General Statutes § 53a-182(a)(1).The case proceeded to a jury trial.At the close of the state's evidence, the trial court granted the defendant's motion for a judgment of acquittal with respect to the disorderly conduct charge.Thereafter, the jury found the defendant not guilty of the charge of threatening in the second degree and guilty of the charge of carrying a dangerous weapon.This appeal followed.

I

The defendant first claims that the trial court's jury instructions were constitutionally deficient.Specifically, the defendant contends that because, under §§ 53-206and53a-3(7), the state must establish that he used the table leg in a threatening manner, the trial court was required to instruct the jury that it could not find the defendant guilty as charged unless it found that the defendant's conduct constituted a "true threat."In support of his claim, the defendant maintains that, unless that judicial gloss is placed on §§ 53-206and53a-3(7), the offense of carrying a dangerous weapon is constitutionally overbroad⁷ in violation of the first and fourteenth amendments to the United States constitution.⁸The defendant further claims that the trial court's failure to instruct the jury in that manner was harmful error.We agree with the defendant.⁹

Before turning to the merits of the defendant's claim, we set forth the trial court's jury instructions with respect to the charge of carrying a dangerous weapon.The court instructed the jury in relevant part: "In count two of the information, [the defendant] is charged with carrying a dangerous weapon.Under § 53-206 ... a person is prohibited from carrying on his person a dangerous instrument.In order for you to find the defendant guilty of this charge, the state must prove two elements beyond a reasonable doubt.[First] a dangerous instrument existed.If you find that a dangerous instrument existed, you must also find that ... [the] dangerous instrument was carried on the person of the defendant on June 28, 2004.

"I will now review those two elements with you.The first element the state must prove beyond a reasonable doubt is that a dangerous instrument existed.I charge you that the table leg that is in evidence ... is not a dangerous instrument per se.Whether or not the table leg became a dangerous instrument in this case is a question of fact for you to decide, a fact which the state must prove beyond a reasonable doubt.

"If you find [that] the table leg was threatened to be used by the defendant in this case, you must consider the table leg's potential for serious physical injury in conjunction with the manner and circumstances of its threatened use.A dangerous instrument is defined by ... § 53a-3(7).That statute provides that a dangerous instrument means any instrument which, under the circumstances in which it was threatened to be used, was capable of causing serious physical injury.Any item, even if harmless under normal use, may be found ... to be a dangerous instrument if, under the circumstances of its threatened use, it is readily capable of causing serious physical injury.

"The term `serious physical injury' is also defined by a specific statute....Section 53a-3(4) ... provides that a serious physical injury means physical injury which creates a substantial risk of death or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.If you find beyond a reasonable doubt that the table leg was a dangerous instrument due to the circumstances of its threatened use by the defendant, you may move on to the second element.

"The state must also prove beyond a reasonable doubt that the dangerous instrument was carried on the person of the defendant.In other words, you must be satisfied that the defendant had physical possession of a dangerous instrument.If you find that the state has proven beyond a reasonable doubt both of the elements of carrying a dangerous weapon, then you shall find the defendant guilty.On the other hand, if you find that the state has failed to prove beyond a reasonable doubt either one of the elements, you shall ... find the defendant not guilty...."¹⁰

The law governing the defendant's claim is well established."A clear and precise enactment may ... be overbroad if in its reach it prohibits constitutionally protected conduct....A single impermissible application of a statute, however, will not be sufficient to invalidate the statute on its face; rather, to be invalid, a statute must reach a substantial amount of constitutionally protected conduct....A [defendant] may challenge a statute as facially overbroad under the first amendment, even if the [defendant's] conduct falls within the...