State v. Leary

• Decision Date: 27 September 1989
• Docket Number: No. 368980A,368980A
• Citation: 41 Conn.Supp. 525,590 A.2d 494
• Court: Connecticut Superior Court
• Parties: STATE of Connecticut v. Scott LEARY.

Page 494

590 A.2d 494

41 Conn.Supp. 525

STATE of Connecticut v. Scott LEARY.

No. 368980A.

Superior Court of Connecticut Judicial District of Danbury.

Sept. 27, 1989.

Walter D. Flanagan, State's Atty., for the state.

Michael K. Courtney, Assistant Public Defender, for defendant.

MOTTOLESE, Judge.

The defendant was arrested pursuant to a warrant charging him with inciting injury to persons or property in violation of General Statutes § 53a-179a ¹ and conspiracy to commit arson in the third degree in violation of General Statutes § 53a-113. ² The affidavit accompanying the warrant contains a verbatim transcript of a telephone conversation between the defendant and Ronald G. Tolmoff. The call was initiated by Tolmoff to inquire whether the defendant was interested in having Tolmoff make a pipe bomb or bombs that he proposed to use to damage a certain police officer's police car. The officer had been involved in the defendant's prior arrest for sexual assault. This conversation was held two days after a casual meeting between the defendant and Tolmoff's younger brother at which the defendant stated that he wanted to get back at the officer for having arrested him and wanted to put a bomb in his police car.

The defendant has filed a motion to dismiss the information on two grounds. First, he claims that § 53a-179a is unconstitutionally void for vagueness and overbreadth. Secondly, the defendant alleges that the affidavit accompanying the warrant contains a material misstatement and does not contain sufficient reliable information "for a violation of this statute." No challenge is made with respect to the charge of conspiracy to commit arson in the third degree.

The defendant's attack is predicated upon the first and the fourteenth amendments to the United States constitution and articles first, fourth and fifth of the Connecticut constitution. Since no separate analysis under the Connecticut constitution has been furnished by the defendant, the court declines to undertake such an analysis. State v. Herring, 210 Conn. 78, 98 n. 19, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989).

Ordinarily, a trial court's analysis of a constitutional attack on an otherwise validly enacted statute begins with certain basic underlying principles of statutory construction. The most fundamental of these is that the accused is entitled to have a penal statute construed strictly in his favor. State v. Whiteman, 204 Conn. 98, 101, 526 A.2d 869 (1987). This principle is all the more compelling where, as here, the attack is predicated on first amendment grounds. ³ Buckley v. Valeo, 424 U.S. 1, 76-77, 96 S.Ct. 612, 662-63, 46 L.Ed.2d 659 (1976); State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987).

These principles, which have retained their vitality, were recently reiterated by the Connecticut Supreme Court in State v. Breton, 212 Conn. 258, 562 A.2d 1060 (1989). In reviewing these standards, the court discussed the framework used in construing this type of statute. "The party attacking a validly enacted statute, however, bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality. Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, 212 Conn. 83, 100, 561 A.2d 917 (1989); Zapata v. Burns, 207 Conn. 496, 507-508, 542 A.2d 700 (1988); State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987). In choosing between two constructions of a statute, one valid and one constitutionally precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent. See Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, supra [212 Conn. at] 96 ; McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 706, 553 A.2d 596 (1989); Bishop v. Kelly, 206 Conn. 608, 617, 539 A.2d 108 (1988); French v. Amalgamated Local Union 376, 203 Conn. 624, 636-37, 526 A.2d 861 (1987); see also Lublin v. Brown, 168 Conn. 212, 219-20, 362 A.2d 769 (1975). We undertake this search for a constitutionally valid construction when confronted with criminal statutes as well as with civil statutes. State v. Snook, 210 Conn. 244, 251, 555 A.2d 390 (1989); State v. Champagne, 206 Conn. 421, 437, 538 A.2d 193 (1988)." Id., 212 Conn. at 269, 562 A.2d 1060.

Section 53a-179a must now be considered from the dual first amendment perspective of vagueness and overbreadth. It is well recognized that the doctrines of vagueness and overbreadth are so closely related that sometimes the two are functionally indistinguishable. State v. Proto, supra, 203 Conn. at 706, 526 A.2d 1297. At the same time, a vagueness challenge usually is coupled with a due process claim to the effect that the statute is so lacking in clarity and precision as to fail utterly in delineating the ascertainable standards of conduct that due process requires. State v. Schriver, 207 Conn. 456, 464-65, 542 A.2d 686 (1988).

A vagueness attack may take two forms. First, the accused may argue that the particular statute is void for vagueness by virtue of its applicability to the particular facts at issue (the "as applied" analysis). State v. Proto, supra, 203 Conn. at 696, 526 A.2d 1297; State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980). Second, whenever a particular portion of a statute is so vague as to implicate first amendment rights and consequently has a "chilling effect" on the remainder of the statute, its constitutionality is tested for vagueness on its face ("facial" analysis). State v. Proto, supra, 203 Conn. at 697, 526 A.2d 1297. In such a case then, the defendant may challenge the validity of the entire statute even though his own conduct may clearly fall within only one of the statute's proscriptions. See Aptheker v. Secretary of State, 378 U.S. 500, 516, 84 S.Ct. 1659, 1669, 12 L.Ed.2d 992 (1964). If the statute survives constitutional scrutiny on a facial analysis, it may not necessarily survive as an applied analysis.

Whenever a portion of a statute appears to be void for vagueness on its face, thereby threatening to produce a chilling effect on the remainder of the statute which might otherwise be valid, Connecticut courts, like the federal courts, have, whenever possible, applied a "judicial gloss" to the statute to save it from fatal infection and inevitable invalidation. See State v. Schriver, supra, 207 Conn. at 464, 542 A.2d 686. Such judicial gloss may be found in recognized methods of statutory construction including references to judicial opinions involving the same or similar statutes of other jurisdictions, the common law, legal dictionaries or treatises that may be necessary to ascertain a statute's meaning. State v. Proto, supra, 203 Conn. at 699, 526 A.2d 1297; State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984); State v. Pickering, supra, 180 Conn. at 62-63, 428 A.2d 322.

Thus, the elixir of judicial gloss may be extracted from numerous sources and applied liberally to the whole surface of the statute. In State v. Cavallo, 200 Conn. 664, 667, 513 A.2d 646 (1986), the Supreme Court upheld General Statutes § 53a-151 ⁴ against a void for facial vagueness attack. The court held that the word "induce" as used in the statute clearly informs persons of ordinary intelligence that any conduct, either physical or verbal, can potentially give rise to criminal liability. Id., at 669, 513 A.2d 646. The court held that "[a]lthough the statute does not expressly mandate that the perpetrator intend to cause the witness to alter or withhold his testimony, this implicit requirement is apparent when the statute is read as a whole." Id., at 668, 513 A.2d 646. The court reasoned that "[t]he legislature's choice of the verb 'induce' connotes a volitional component of the crime of tampering that would have been absent had it employed a more neutral verb such as 'cause.' " Id., at 669, 513 A.2d 646. Finally, the court stated that "the statute's application to unsuccessful, as well as successful, attempts to induce a witness to render false testimony supports our conclusion that the statute focuses on the mental state of the perpetrator to distinguish culpable conduct from innocent conduct." Id.

In reading the statute at issue here, it is apparent that there is an implicit requirement that the accused intend to cause injury to or destruction of public or private property. Each of the words that the legislature chose to include in the statute clearly connotes the volitional component to accomplish a specific result. As the Cavallo court stated, "[a]s long as intent is a necessary element of the crime under § 53a-151, which penalizes only verbal acts relating to a specific pending prosecution, the statute casts no chilling effect on general exhortations concerning cooperation with judicial proceedings." Id., 200 Conn. at 672, 513 A.2d 646; see also State v. Hawkins, 19 Conn.App. 609, 615, 563 A.2d 745, cert. denied, 212 Conn. 820, 565 A.2d 540 (1989) where the Appellate Court held that the word "provokes" in § 53a-19(c) is imbued with its own aspect of intent.

Thus, the requirement of intent that must be read into § 53a-179a preserves the statute from a constitutional demise under the first amendment.

Judicial gloss may also be found in the decisions of other jurisdictions. The New Jersey courts have upheld a substantially similar statute against a first amendment vagueness challenge. ⁵ State v. Cappon, 118 N.J. Super. 9, 285 A.2d 287 (1971); State v. Hopson, 109 N.J.Super. 382, 263 A.2d 205 (1970), aff'd, 119 N.J.Super. 84, 290 A.2d 295 (1972). Hopson is particularly instructive because of its interpretation of the words "incitement" and "encouragement" as contained in the counterpart statute. As the court stated, "[i]f acts denouncing incitement to crime are void, the legal theories and principles behind an accessory before the...