State v. Cummings
| Decision Date | 28 October 1997 |
| Docket Number | No. 14275,14275 |
| Citation | 701 A.2d 663,46 Conn.App. 661 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Darryl CUMMINGS. |
James K. Filan, Jr., Bridgeport, with whom, on the brief, was Craig S. Meuser, Law Student Intern, for appellant (defendant).
John A. East III, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and Joseph J. Harry, Assistant State's Attorney, for appellee (State).
Before EDWARD Y. O'CONNELL, C.J., and FOTI and HEIMAN, JJ.
The defendant appeals from the judgment of conviction, rendered after a jury trial, of stalking in the first degree in violation of General Statutes § 53a-181c (a)(2), stalking in the second degree in violation of General Statutes § 53a-181d, two counts of harassment in the second degree in violation of General Statutes § 53a-183 (a)(3), disorderly conduct in violation of General Statutes § 53a-182 (a)(2), and criminal violation of a protective order in violation of General Statutes § 53a-110b. On appeal, the defendant claims that three statutes under which he was charged and convicted, §§ 53a-181d, 53a-182 (a)(2) and 53a-183 (a)(3), are facially vague and, therefore, unconstitutional under both the state and federal constitutions. 1 He also claims that the trial court improperly (1) admitted evidence of his prior criminal convictions, (2) failed to deliver limiting instructions concerning that evidence, (3) instructed on the essential elements of the stalking charges, and (4) imposed a sentence without a court-ordered psychiatric evaluation. The defendant also claims that the evidence presented at trial was insufficient to support his conviction for stalking in the first and second degree, harassment in the second degree and criminal violation of a protective order. We reverse the judgment in part and affirm it in part.
The jury reasonably could have found the following facts. The defendant and the victim were involved in a romantic relationship for two years. The victim ended the relationship on October 2, 1992, and left for a vacation the next day. On October 16, 1992, upon returning home from her trip, the victim went to dinner with the defendant. She told the defendant that that meeting was not a date and that their romantic relationship was over. The defendant, nevertheless, pressed for reconciliation.
Subsequently, the defendant began to telephone the victim at her family home and at her workplace. He also called and visited her friends and family to inquire about the victim and to plead with them to listen to his side of the story.
In November, 1992, the defendant confronted the victim when she got into her car as she left work. As she turned the key in the ignition, the defendant jumped into her car. He shoved a bank card in her face and told her to withdraw money from his account to reimburse her for a debt he owed her. The victim screamed and ordered the defendant out of her car and he left. The victim reported the incident to the Wilton police department, but did not have the defendant arrested.
On January 27, 1993, the defendant went to a restaurant where the victim and three friends were having dinner. He remained at the restaurant until they left. Although he lived in the opposite direction from where the victim lived, the defendant followed them almost to the victim's home.
On January 28, 1993, the defendant appeared at the gym where the victim was a member. As she left the gym, the defendant approached her, carrying a flower, and pleading with her to listen to him. The victim ignored him. The defendant grabbed her arm and did not permit her to get into her car. She ran back to the gym and found someone there to escort her to her car. When she left the gym the second time, she saw the defendant's truck drive past her and out of the parking lot. On her way home, she noticed that his truck was one or two cars in front of her. To avoid further confrontation, the victim went to a girlfriend's house. She was upset and related the incident to her friend. The defendant drove by her friend's house and parked down the street. The friend drove the victim to the victim's parents' house. The victim later filed a complaint with the Trumbull police department, and the defendant was arrested.
The victim obtained a protective order against the defendant based on these incidents. The protective order prohibited the defendant from telephoning the victim or coming within 1000 feet of her. It further prevented the defendant from imposing any restraints on the person or liberty of the victim, and ordered that the defendant refrain from threatening, harassing, assaulting, molesting or sexually assaulting the victim and that he refrain from entering the family dwelling or the dwelling occupied by the victim.
In June, 1993, the victim and a girlfriend were at a bar. The defendant was there also and followed her around the bar, waving and staring at her. The victim eventually left the bar with her friend. The next day, the victim went to a park in Trumbull with her friend. The defendant drove into the park, turned around and drove out. 2 The victim and her friend went to the park again the following day. The defendant again drove into the park, turned around and drove out.
Also in June, 1993, the victim went to a bar in Bridgeport. As she prepared to pay her bill and leave, she noticed the defendant leaving. A restaurant employee informed her that the defendant had paid her bill. The victim then went to another bar to meet some friends. The defendant also went there and approached the victim. He was crying and pleading with her to talk to him. The victim shouted an obscenity at him and left with a friend.
In July, 1993, the defendant telephoned the victim at work and explained that he was going to send her the money he owed her. She hung up as soon as she recognized his voice.
In August, 1993, the victim moved into an apartment with a friend. The two women began to receive a number of hang up telephone calls. On August 29, 1993, the defendant telephoned the victim at least twelve consecutive times. The victim again filed a complaint with the Trumbull police department. While a police officer was at the victim's apartment, the defendant passed by in his truck. The defendant was arrested as a result of that incident.
The next incident occurred on October 16, 1993. The victim was a bridesmaid in a friend's wedding. The defendant had not been invited. The victim left the wedding in a limousine and noticed the defendant's truck a few cars behind her. He eventually passed the limousine and appeared at the reception, but left before the victim arrived.
On October 29, 1993, the victim and her roommate hosted a Halloween party. The defendant telephoned their apartment. The victim's roommate answered and recognized the defendant's voice. He stated that "this is [the victim's] worst nightmare" before hanging up the telephone.
In March, 1994, the defendant again telephoned the victim at work. He claimed that he was going to pay her the money he owed her. The victim hung up, left work and filed a complaint with the Wilton police department.
The defendant claims that §§ 53a-181d, 53a-182 (a)(2) and 53a-183 (a)(3) are unconstitutionally vague. 3 Because he did not preserve this claim at trial, he seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). 4
"The doctrine [of vagueness] requires statutes to provide fair notice of the conduct to which they pertain and to establish minimum guidelines to govern law enforcement." State v. Indrisano, 228 Conn. 795, 802, 640 A.2d 986 (1994). Our Supreme Court based its analysis in Indrisano on the three standards set out by the United States Supreme Court for evaluating vagueness. "First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.... [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law....
"Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates 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 applications.... Therefore, a legislature [must] establish minimal guidelines to govern law enforcement....
"Third, but related, where a vague statue abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms." (Citations omitted; internal quotation marks omitted.) Id. at 802-803, 640 A.2d 986. 5
Section 53a-181d (a) provides: "A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety." The defendant claims that the statute is facially vague because the terms "repeatedly," "follows," and "lies in wait" are ambiguous and are not statutorily defined. We are unpersuaded.
The claim that the statute is unconstitutional on its face is foreclosed by our decision in State v. Marsala, 44 Conn.App. 84, 97, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). In Marsala, we adopted the Superior Court's decision in State v. Culmo, 43 Conn.Supp. 46, 67, 642 A.2d 90 (1993), stating that " ...
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