State v. Indrisano

• Decision Date: 05 April 1994
• Docket Number: No. 14631,14631
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Albert INDRISANO.

Page 986

640 A.2d 986

228 Conn. 795

STATE of Connecticut v. Albert INDRISANO.

No. 14631.

Supreme Court of Connecticut.

Argued April 28, 1993.

Decided April 5, 1994.

Edward F. Hennessey, with whom were Linda L. Morkan, and, on the brief, Louis VanDyck, Sally S. King and Michael G. Zuk, Hartford, for appellant (defendant).

Rita M. Shair, Asst. State's Atty., with whom were Eugene Callahan, State's Atty., and, on the brief, Warren Murray, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and BORDEN, BERDON, KATZ and FOTI, JJ.

BORDEN, Associate Justice.

The dispositive issue of this appeal is whether certain portions of the disorderly conduct statute, namely, General Statutes § 53a-182(a)(1) and (2), ¹ are unconstitutionally vague under the fourteenth amendment to the United States constitution. The defendant, Albert Indrisano, was convicted, after a court trial, of disorderly conduct in violation of General Statutes § 53a-182(a)(1) and (2). ²

The defendant appealed to the Appellate Court from the judgment of conviction. The Appellate Court rejected the defendant's constitutional claims that the statute is vague on its face and as applied to him, on the grounds that the defendant had failed to raise these claims at trial and that the appellate record was inadequate to review them. State v. Indrisano, 29 Conn.App. 283, 287, 613 A.2d 1375 (1992). ³ The Appellate Court also rejected the defendant's nonconstitutional claims, namely, that the evidence presented at trial was insufficient to support his conviction, that the trial court had improperly rejected his claim of permissible use of force in defense of stolen property, and that the trial court had improperly excluded certain statements on grounds of hearsay. Id. Accordingly, the Appellate Court affirmed the defendant's conviction.

We granted the defendant's petition for certification to appeal limited to the following issues: "(1) Was the Appellate Court correct in concluding that the record was insufficient, pursuant to State v. Golding, 213 Conn. 233 (1989), to permit adequate appellate review of the defendant's claims that, on its face and as applied, General Statutes § 53a-182 was void for vagueness under the state and federal constitutions? (2) Is General Statutes § 53a-182 void for vagueness on its face and as applied to this case, under the state and federal constitutions?" ⁴ State v. Indrisano, 224 Conn. 914, 617 A.2d 168 (1992). We reverse the judgment of the Appellate Court and remand the case for a new trial.

The Appellate Court set forth the relevant facts: "On September 26, 1988, David Andrews Printing, a Norwalk business, entered into a lease agreement with the Eaton Financial Corporation of Massachusetts for the use of a copy machine. The agreement provided, inter alia, that Eaton, as lessor, retained the right to repossess the machine in the event that Andrews defaulted on the required payments. After Andrews compiled a history of delinquent payments, Eaton gave notice in January, 1991, that the Norwalk business was again late in making payment and demanded the return of the copier. Eaton then instructed the defendant [an employee] either to collect the outstanding debt or to repossess the machine. On January 22, 1991, the defendant traveled to Norwalk to carry out his instructions.

"Andrews' office space included a common area shared with another tenant, Bonnie Orgovan. Andrews had placed the copy machine in this common area for its exclusive use. At 10 a.m., the defendant entered the common area and encountered Orgovan. He explained that he had come to collect the overdue payments or, alternatively, take possession of the copier. Gordon Anderson, also present in the common area, testified that the defendant entered the room waving a clipboard and that he was 'very strident.' Orgovan then explained to the defendant that the owners were unavailable but would return shortly. Orgovan resumed her work and left the defendant in the common area with Anderson and the copy machine.

"The defendant then telephoned Eaton and, after receiving permission to repossess the machine, unplugged it and began dragging it backward toward the door. When Orgovan realized what the defendant was doing, she reentered the common area, demanding that he await the return of Andrews' owners. Moreover, she positioned herself between the defendant and the door, which she locked, to prevent him from leaving with the copier. At this point, the defendant exclaimed, 'God damn, I don't have to wait. God damn it!' Directing his attention to Anderson, the defendant said, 'You, old man, stay out of this.' Determined to leave, however, the defendant physically wedged Orgovan away from the door by using his shoulders and buttocks. As soon as this physical contact ensued, Anderson called the police and the confrontation immediately ceased. The entire incident lasted about ten minutes." State v. Indrisano, supra, 29 Conn.App. at 284-86, 613 A.2d 1375.

The trial court found that the defendant had been strident and impatient in his efforts to repossess the machine, and that he had refused reasonable requests to wait until the lessee arrived. The court also found that the defendant had used unreasonable physical force against Orgovan as he had tried to pull the machine through the door. Accordingly, the trial court concluded that the defendant had violated § 53a-182(a)(1) and (2). See footnote 2. This appeal followed.

I

We first address the question of the reviewability of the defendant's claim of unconstitutional vagueness. Because the claim was not raised at trial, it falls within the purview of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which provides in part that a defendant cannot prevail on a constitutional claim unless the record is adequate to consider the claim. See footnote 3. The Appellate Court determined that the record was inadequate under the first prong of Golding. We disagree.

To enable us to review a claim that a statute is facially vague, the record needs to reflect only the fact that the defendant was convicted under the statute in question. To enable us to review a claim that a statute is vague as applied, the record must further reflect the conduct that formed the basis of the defendant's conviction. The record is sufficient to enable us to perform both of these tasks. We therefore advance our analysis to the third prong of Golding, namely, whether the defendant was deprived of his constitutional right to a fair trial because either § 53a-182(a)(1) or (2) is unconstitutionally vague on its face or as applied to the defendant's conduct.

II

The defendant claims that § 53a-182(a)(1) and (2) are unconstitutionally vague on their face and as applied to his conduct. We agree in part and disagree in part. We conclude that: (1) § 53a-182(a)(1) is not subject to facial attack and is not impermissibly vague as applied to the defendant's conduct; (2) § 53a-182(a)(2), as it existed at the time of the defendant's conduct, was impermissibly vague on its face and, therefore, may not validly be applied to the defendant; and (3) it is nonetheless appropriate to apply interpretive gloss to § 53a-182(a)(2) so as to render it sufficiently clear for future cases, and thus, preserve its constitutionality. Because the defendant's conviction rested on a subdivision of the statute that cannot validly be applied to him, however, we reverse the conviction and remand the case for a new trial under § 53a-182(a)(1). ⁵ Certain fundamental principles of constitutional vagueness jurisprudence govern our consideration of the defendant's claims. We note at the outset that, because this case involves a vagueness challenge pursuant to the due process clause of the fourteenth amendment to the United States constitution, rather than our state constitution; see footnote 4; we are bound by applicable United States Supreme Court precedents regarding the vagueness principle. We are not free to interpret the federal constitution so as to recognize greater rights than the United States Supreme Court has specifically refrained from recognizing. See Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).

The purpose of the vagueness doctrine is twofold. The doctrine requires statutes to provide fair notice of the conduct to which they pertain and to establish minimum guidelines to govern law enforcement. The United States Supreme Court has set forth standards 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. Vague laws may trap the innocent by not providing fair warning." Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). "[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." Baggett v. Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377 (1964); see also State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988); State v. Cavallo, 200 Conn. 664, 670, 513 A.2d 646 (1986).

"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." Grayned v. Rockford, supra, 408 U.S. at 108-109, 92 S.Ct. at 2298-2299. Therefore, "a legislature [must] establish minimal guidelines to govern law enforcement." (Internal quotation marks omitted.) Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); see also Connecticut Building Wrecking Co. v. Carothers, 218...