State v. Culmo

• Citation: 642 A.2d 90,43 Conn.Supp. 46
• Decision Date: 03 August 1993
• Docket Number: No. 9,No. 122582,122582,9
• Court: Superior Court of Connecticut
• Parties: STATE of Connecticut v. Robert F. CULMO, Jr.

Page 90

642 A.2d 90

43 Conn.Supp. 46

STATE of Connecticut v. Robert F. CULMO, Jr.

No. 122582.

Superior Court of Connecticut,

Geographical Area No. 9

at Middletown.

Aug. 3, 1993.

John M. Cashmon, Asst. State's Atty., for the State.

Breg & Breg, Waterbury, for defendant.

LAVINE, Judge.

The defendant, Robert F. Culmo, Jr., who is charged with two counts of stalking in the second degree in violation of General Statutes § 53a-181d, ¹ moved pursuant to Practice Book § 815 to dismiss this prosecution on the grounds that the statute defining the offense is unconstitutional. The defendant contends that this statute, enacted as part of Connecticut's prohibition against "stalking," violates his rights under the state ² and federal constitutions because it is vague and overbroad on its face and invites abuse by police and prosecutorial agencies enforcing the law. The state responds that the issue is not ripe for review at this stage of the proceedings and that the statute is neither vague nor overbroad. ³

For the following reasons, the court finds that § 53a-181d, while not entirely free from ambiguity, is sufficiently definite to enable a person of common intelligence to know what conduct is prohibited. The motions to dismiss are denied because the defendant has failed to meet his significant burden of demonstrating that the statute is unconstitutional.

The defendant was arrested in December, 1992, on a warrant alleging that he had committed two counts of stalking in the second degree in violation of § 53a-181d. The affidavit in support of the arrest warrant application recited the following allegations: On November 16, 1992, the alleged victim complained to the Clinton police department that she had been followed by the defendant, her neighbor, while she had gone shopping on October 23 and October 25 of that year. The complaint stated that on October 23, the defendant had followed her while she was shopping at a local Stop & Shop. The complainant stated that the defendant left the store before her, and that when she went out to her car, she noticed the defendant sitting in his car two rows behind where she was parked, with the motor of his car running. The complainant stated that she put her groceries in her car and waited, and that the defendant drove around the parking lot and parked a couple of spaces behind her. The complainant told the police that she then drove out of the shopping center parking area and headed home. The defendant followed very close behind her, almost running into her vehicle. The complainant evaded the defendant, however, and drove home.

On October 25, 1992, according to the complainant, she was shopping at another grocery store when she noticed the defendant following her in the aisles. She looked outside the store window and saw that the defendant's car was parked alongside her car.

The complainant stated that she feared that the defendant was going to do something to her. She stated also that the defendant drives or walks up and down her street, which is at the rear of his property. According to the affidavit, the complainant further stated that her husband had filed a complaint with the Connecticut state police alleging that the defendant had run him off the road. Based on these allegations, and others, issuance of an arrest warrant was authorized.

Following the granting of a portion of the defendant's motion for a bill of particulars dated January 29, 1993, seeking more information about the offenses alleged, the state, on February 19, 1993, filed a substitute information, the present charging document, accusing the defendant of two counts of stalking in the second degree. Count one charged that "at the Town or City of Clinton, in the vicinity of 215 East Main Street on or about the 23rd day of October, 1992, the said Robert Culmo, Jr., at around 8 p.m., with intent to cause reasonable fear for the physical safety of another person, namely Kathleen Banks, while said Culmo was in a motor vehicle and on foot, did willfully and repeatedly follow and lie in wait for Kathleen Banks, in a manner likely to cause another person, namely Kathleen Banks, to reasonably fear for her physical safety, all in violation of Section 53a-181d of the Connecticut General Statutes."

The second count charged that the state "further accuses Robert Culmo, Jr., of stalking and charges that at the Town of Clinton at 266 East Main St., on or about the 25th day of October, 1992, around 7:45 a.m., the said Robert Culmo, Jr., with intent to cause reasonable fear for the physical safety of another person, namely Kathleen Banks, while said Culmo was in a motor vehicle and on foot, did willfully and repeatedly follow and lie in wait for Kathleen Banks in a manner likely to cause another person, namely Kathleen Banks, to reasonably fear for her physical safety, all in violation of Section 53a-181d of the Connecticut General Statutes."

The substitute information contained allegations in both counts that the stalking allegedly occurred while the defendant "was in a motor vehicle and on foot," allegations not made in the first information filed.

In both motions to dismiss dated February 4, 1993, and April 8, 1993, and the supporting memoranda, the defendant asserted that the stalking statute violated the due process guarantees of the United States and Connecticut constitutions. The state filed a responsive memorandum on April 23, 1993, to which the defendant replied with another submission dated April 30, 1993. Oral argument was held on May 4, 1993. Following argument, the court requested that the defendant file another memorandum outlining with specificity what first amendment freedoms, or other fundamental constitutional guarantees, were claimed to be implicated by § 53a-181d. By a memorandum dated May 13, 1993, the defendant attempted to do so.

The defendant raises three closely related claims. The first is that § 53a-181d is so vague that the defendant cannot understand what conduct it prohibits. Asserting that the statute implicates fundamental constitutional guarantees, the defendant urges the court to consider the facial validity of the statute, not merely its vagueness as applied to him. Second, but closely related, the defendant argues that the statute is overly broad. The defendant claims that its language brings within its reach constitutionally protected conduct under the first amendment to the United States constitution--as well as the stalking conduct it seeks to make unlawful--and that it should therefore be declared unconstitutional as an encroachment on these protected activities. Third, the defendant contends that the statute's claimed lack of clarity invites abuse by police authorities and prosecutors who must implement it by granting them "unfettered discretion."

Prior to discussing the defendant's claims, a brief discussion of the legislative background of the stalking statute would be helpful. DeFonce Construction Corp. v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985).

Spurred by problems that both celebrities and private citizens were having, California was the first state to pass a stalking law. In 1992, Connecticut's legislature followed suit, enacting General Statutes §§ 53a-181d and 53a-181c. ⁴ Testifying in favor of the stalking statute, Representative Thomas Luby, a principal sponsor, asserted that the proposed legislation "fills a gap" existing between the harassment statutes; General Statutes §§ 53a-182b and 53a-183; the breach of peace statute; General Statutes § 53a-181; and the threatening statute; General Statutes § 53a-62; because existing statutes "tend to require a more direct, a more explicit threat and a different kind of physical conduct and a higher level of fear." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1992 Sess., p. 1287 remarks of Representative Thomas Luby. Asserting that "many violent crimes are preceded by a period of stalking," Luby testified that the stalking law would provide the police with a "tool" to intervene in cases that fell into the gap. Existing statutes do not address "the situation where the criminal does not physically take an act against the person or does not verbally make a direct and immediate threat of harm," but merely stalks the victim, he argued. 35 H.R.Proc., Pt. 9, 1992 Sess., p. 2968. Representative James A. Amann, a supporter of the legislation, cited statistics from the Federal Bureau of Investigation that, he asserted, indicated that one out of every twenty adults will be a victim of stalking behavior and that a significant number of those persons will be victimized by crime. 35 H.R. Proc., Pt. 9, 1992 Sess., p. 2986. Luby stated that among the victims of stalking are children, people who do not know the stalker and spouses or former spouses of the stalker. 35 H.R.Proc., Pt. 9, 1992 Sess., p. 2967. A number of witnesses testified concerning their own or their childrens' experiences of being stalked. One witness described how her daughter had been followed by an unknown man before she was murdered. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1992 Sess., pp. 1297-99. Witnesses testified to the intimidating impact of being stalked and its effect on their lives.

The first question to be answered is whether the defendant has standing to raise the claim that § 53a-181d is facially void due to vagueness. The court concludes that he does.

In determining whether the defendant has standing to attack § 53a-181d as void due to vagueness, the court is guided by well established principles.

When a defendant attacks a statute as being void due to vagueness, normally, a court limits its inquiry to the statute's impact as applied to the facts of the case before it. 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. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984). This rule is intended to prevent courts from being put in the...