State v. Gaymon

Citation899 A.2d 715,96 Conn.App. 244
Decision Date27 June 2006
Docket NumberNo. 25981.,25981.
CourtAppellate Court of Connecticut
PartiesSTATE of Connecticut v. Gregory GAYMON.

Charles F. Willson, special public defender, for the appellant (defendant).

Robert M. Brennan, senior assistant state's attorney, for the appellee (state).

BISHOP, McLACHLAN and PELLEGRINO, Js.

PELLEGRINO, J.

The defendant, Gregory Gaymon, appeals from the judgment of conviction, rendered after a jury trial, of breach of the peace in the second degree in violation of General Statutes § 53a-181(a)(3). On appeal, the defendant claims that (1) the trial court improperly instructed the jury and (2) there was insufficient evidence to support his conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2003, the defendant was released from a term of incarceration and began serving a five year probationary period. On March 11, 2004, the defendant's probation officer, Gregory Fasold, went to the defendant's residence with two other probation officers and two Bridgeport police officers in order to arrest the defendant for violating his probation. When the five officers arrived, they observed the defendant on the front porch. They handcuffed the defendant and informed him that they were arresting him for violating his probation. The defendant then began to swear at Fasold and told him, "I'm going to kick your fucking ass." Because the defendant had become angry, Fasold backed away from him. One of the other probation officers then placed leg irons on the defendant. As the officers led him from the porch, he continued swearing at Fasold and then spit in his face. Although the officers had intended to transport the defendant in the probation officers' vehicle, they decided to place him instead in the police cruiser because it contained a protective barrier between the front and back seats.

Subsequently, the defendant's probation was revoked and he received a sentence of ten years incarceration, execution suspended after five years, followed by three years of probation.1 The state then filed a substitute information charging the defendant in connection with his behavior during his arrest for violation of probation. After a trial, the jury returned a verdict of not guilty on one count of assault of public safety personnel and a verdict of guilty on one count of breach of the peace in the second degree. The court rendered judgment in accordance with the verdict and sentenced the defendant to six months incarceration, consecutive to his sentence for violation of probation. This appeal followed.

I

The defendant first claims that the court improperly failed to instruct the jury that when the target of inflammatory language is a probation officer, the offensiveness of that language must be extreme in order to support a conviction of breach of the peace in the second degree. The defendant did not request such an instruction at trial and did not object to the court's charge, but he now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).2 We determine that the record is adequate for review and that the claim is of constitutional magnitude,3 but we conclude that the omission of the instruction did not deprive the defendant of a fair trial.

"When a challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled. . . . [T]he charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied. . . is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result." (Citation omitted; internal quotation marks omitted.) State v. Straub, 90 Conn.App. 147, 152-53, 877 A.2d 866, cert. denied, 275 Conn. 927, 883 A.2d 1252 (2005).

We begin by examining the elements of the crime of breach of the peace in the second degree. Section 53a181 (a) provides in relevant part: "A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person . . . (3) threatens to commit any crime against another person or such other person's property. . . ." That statute prohibits "[t]rue threats," in which "the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur." (Internal quotation marks omitted.) State v. DeLoreto, 265 Conn. 145, 154, 827 A.2d 671 (2003).

Whether a statement constitutes a true threat "is governed by an objective standard — whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." (Internal quotation marks omitted.) Id., at 156, 827 A.2d 671. "[A]lleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners." (Internal quotation marks omitted.) Id. Furthermore, "the threat need not be imminent to constitute a constitutionally punishable true threat." Id., at 159, 827 A.2d 671.

In addition to true threats, "[t]hreatening statements that do not rise to the level of a true threat may nonetheless constitute fighting words that could be criminalized under [§ 53a-181(a)(3)]. . . ." Id., at 168, 827 A.2d 671. Fighting words consist of "speech that has a direct tendency to cause imminent acts of violence or an immediate breach of the peace. Such speech must be of such a nature that it is likely to provoke the average person to retaliation." (Internal quotation marks omitted.) State v. Szymkiewicz, 237 Conn. 613, 620, 678 A.2d 473 (1996).

Whether a statement constitutes a true threat or fighting words prohibited by § 53a-181(a)(3) is a question of law subject to de novo review. See Reid v. Commissioner of Correction, 93 Conn.App. 95, 108, 887 A.2d 937 (2006); see also State v. DeLoreto, supra, 265 Conn. at 152-53, 827 A.2d 671. "[I]n cases raising First Amendment issues [the United States Supreme Court has] repeatedly held that an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." (Internal quotation marks omitted.) DiMartino v. Richens, 263 Conn. 639, 662, 822 A.2d 205 (2003).

On the basis of our independent examination of the whole record, we conclude that the defendant's statements to Fasold constituted true threats. The defendant swore at Fasold and told him, "I'm going to kick your fucking ass." Although the defendant already had been handcuffed, his statements nonetheless caused Fasold to back away from him and led one of the other probation officers to place leg irons on him. The defendant then continued swearing at Fasold and spit in his face. In view of the defendant's behavior, the probation officers changed their plan to transport him in their vehicle and instead placed him in the police cruiser. Considering the entire factual context, a reasonable person would foresee that Fasold interpreted the defendant's statements as a serious expression of intent to harm. The defendant points out that he did not raise his fist or make any other gestures toward Fasold besides spitting at him, but the lack of such additional movements does not detract from the serious expression of intent to harm contained in his statements.

We acknowledge that our Supreme Court has adopted a distinction between police officers and civilians when the inflammatory statements at issue constitute fighting words. Section 53a-181(a)(3) "potentially could encompass that class of statements that, while they would qualify as fighting words for the ordinary citizen, are not offensive enough to provoke a police officer to violence . . . . [W]hen a police officer is...

To continue reading

Request your trial
19 cases
  • State v. Buhl
    • United States
    • Supreme Court of Connecticut
    • June 14, 2016
    ...of such a nature that it is likely to provoke the average person to retaliation." (Internal quotation marks omitted.) State v. Gaymon, 96 Conn. App. 244, 248, 899 A.2d 715, cert. denied, 280 Conn. 906, 907 A.2d 92 (2006). Connecticut cases holding that the state must prove that the speech c......
  • State v. Taveras
    • United States
    • Appellate Court of Connecticut
    • July 17, 2018
    ...subsection consistent with the first amendment." State v. DeLoreto , supra, 265 Conn. at 168, 827 A.2d 671 ; see also State v. Gaymon , 96 Conn. App. 244, 248, 899 A.2d 715, cert. denied, 280 Conn. 906, 907 A.2d 92 (2006).Therefore, to establish a violation of § 53a-181 (a) under either sub......
  • State v. Buhl
    • United States
    • Supreme Court of Connecticut
    • June 21, 2016
    ...of such a nature that it is likely to provoke the average person to retaliation.” (Internal quotation marks omitted.) State v. Gaymon, 96 Conn.App. 244, 248, 899 A.2d 715, cert. denied, 280 Conn. 906, 907 A.2d 92 (2006).Connecticut cases holding that the state must prove that the speech con......
  • State v. Krijger
    • United States
    • Appellate Court of Connecticut
    • August 2, 2011
    ...“Come on, right now”; and, “I'm going to kick your ass,” constituted true threats [internal quotation marks omitted] ); State v. Gaymon, 96 Conn.App. 244, 899 A.2d 715 (holding that “ ‘I'm going to kick your fucking ass' ” was true threat), cert. denied, 280 Conn. 906, 907 A.2d 92 (2006). W......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT