State v. Linares

• Decision Date: 04 November 1993
• Docket Number: No. 10910,10910
• Citation: 32 Conn.App. 656,630 A.2d 1340
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kathaleen LINARES.

Page 1340

630 A.2d 1340

32 Conn.App. 656

STATE of Connecticut v. Kathaleen LINARES.

No. 10910.

Appellate Court of Connecticut.

Argued Oct. 28, 1992.

Decided July 23, 1993.

Certifications Granted Limited to the Following Issues Oct.

28 and Nov. 4, 1993.

Erin K. Olsen, Certified Legal Intern, with whom was Timothy H. Everett, Hartford, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were John M. Bailey, Chief State's Atty., Joan Alexander, Deputy Asst. State's Atty., and Michael Yavinsky, Law Student Intern, for appellee (state).

Before DUPONT, C.J., and HEIMAN and SCHALLER, JJ.

DUPONT, Chief Judge.

The defendant appeals from a judgment of conviction of General Statutes § 2-1d(a)(2)(C) and (E). ¹ The conviction resulted from a plea of nolo contendere pursuant to General Statutes § 54-94a ² after her motion to dismiss the information, which charged violations of subsections (C) and (E) in the conjunctive, was denied. She claims, on appeal and in her motion to dismiss, that her state and federal constitutional rights of free speech were abridged by enforcement of § 2-1d(a)(2)(C) and (E) and that the subsections of which she was convicted were unconstitutional under both the federal ³ and the state constitutions ⁴ because they are vague on their face and as applied to her on the particular facts of this case, and because they are overbroad.

If the defendant is correct in her assertion that both subsections are overbroad or vague under either constitution, we need not address her claim that the statute abridges her right of free speech under either constitution because the conclusion that both subsections are constitutionally infirm would require us to set aside her conviction. We, therefore, first consider the constitutionality of the subsections of the statute under decisional law relating to the constitutional claims of vagueness and overbreadth.

The warrantless arrest of the defendant arose from an incident that occurred on February 7, 1990, in the gallery of the House of Representatives in the state capitol building. The trial court, in a written memorandum of decision, found certain facts on the basis of its review of video and audio tapes of the occurrence. The court determined that the defendant and others were attending the state of the state address of then Governor William A. O'Neill to the legislature. During the governor's speech, the defendant and others unfurled a banner that read "We Demand Lesbian And Gay Rights, Bill," ⁵ and shouted, "gay rights, lesbian rights." The defendant and others were promptly and peacefully removed from the gallery by the capitol police and later arrested. The chanting and the removal of the defendant interrupted the governor's speech for approximately two minutes.

The court concluded as a matter of law that the gallery of the House is a limited public forum, and that the statute is directed toward behavior, not the content of the expression. The court did not deal specifically with the two independent subsections, but lumped them together in its determination that the defendant's first amendment rights were not violated and that the statute was not void for vagueness or overbreadth. Consequently, the court denied the defendant's motion to dismiss.

The defendant's plea of nolo contendere was not an express admission of guilt but a consent to be punished as though she was guilty. State v. Godek, 182 Conn. 353, 363-65, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981). No evidentiary hearing was requested or held by the trial court prior to the plea. ⁶ Here, the defendant pleaded nolo contendere to two subsections of the General Statutes, was automatically found guilty of both and fined $90. ⁷ Conjunctive pleading is a legitimate practice of charging a single offense by one or more specified means, which is allowed by Practice Book § 618. There can be two means by which one crime is committed. State v. Cofone, 164 Conn. 162, 166, 319 A.2d 381 (1972).

The defendant claims, on the basis of Brown v. K.N.D. Corporation, 205 Conn. 8, 529 A.2d 1292 (1987), that our standard of review in this case requires that we conduct a de novo review of the record to make an independent determination of the facts. The defendant claims that Brown applies not only to civil but to criminal cases. ⁸ Brown held that an independent appellate determination in first amendment freedom of expression cases is required if first amendment rights are not vindicated in the trial court and the defendant is punished for the exercise of them. We need not decide if Brown applies to criminal cases allegedly involving freedom of speech, as well as to civil defamation cases, because here the facts are not in dispute, and an independent review by us would not result in different findings. Both the state and the defendant implicitly agree that the facts, as given by the state, are sufficient to support the defendant's conviction had she been tried, if the statute is constitutional. See State v. Ball, 226 Conn. 265, 268 n. 3, 627 A.2d 892 (1993).

Relatively few decisions involving statutes that allegedly regulate protected speech rest directly on the proscriptions of the first amendment or of state constitutional proscriptions, but instead turn on constitutional due process considerations. A statute may be unconstitutionally vague or overbroad even though no activities prohibited by it are specifically protected by either constitution. That is so because a vague or overbroad statute, whether or not it involves protected speech, violates the due process clauses of both constitutions. ⁹ An analysis of a statute that implicates first amendment rights to determine if it is vague or overbroad may, however, indirectly lead to the protection of free speech as guaranteed by the state and federal constitutions.

To determine whether a statute with several subparts can survive a facial challenge because it is claimed to be overbroad or vague when measured against the first amendment, we first review the entire statute ¹⁰ in order to determine whether it does implicate free speech. "For first amendment purposes, facial constitutional scrutiny of a criminal statute is warranted if the statute makes unlawful 'a substantial amount of [allegedly] constitutionally protected conduct' even if other parts of the statute may have a legitimate application." State v. Ball, supra at 271, 627 A.2d 892. Even if only one subsection of a statute facially involves protected speech, the statute implicates the first amendment. Id. at 272, 627 A.2d 892.

There is no decisional guidance for reviewing this statute because it has not been interpreted by a Connecticut court nor has anyone, to the knowledge of the parties, been arrested pursuant to it. ¹¹ General Statutes § 2-1d(a)(2) prohibits a person who intends to disturb, disrupt or interfere with any session, meeting or proceeding of the General Assembly whether within or outside the presence of the General Assembly from (A) engaging in violent, tumultuous or threatening behavior or (B) using abusive or obscene language or making an obscene gesture or (C) making unreasonable noise or (D) refusing to comply with a lawful order of the police or a member of the office of the state capitol security to disperse or (E) performing any other act that disturbs, disrupts or interferes with such a session, meeting or proceeding. The first portion of the statute defines the requisite intent to interfere with the legislative process, and the remainder contains five specific prohibited ways of interfering, disturbing or disrupting the legislative process. Although the defendant is charged only with those subsections that prohibit making unreasonable noise and performing any other act that disturbs, disrupts or interferes with a legislative proceeding, we examine all of the subsections to determine if one or more facially prohibit expressive conduct or speech rather than disruptive behavior. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).

The only subsection of the statute that facially relates to speech is (B), which prohibits obscene language. All of the remaining subsections involve conduct. The question is whether any one of them implicates the communicative aspects of the prohibited conduct. Conduct can be expressive and communicate an idea. Speech and conduct may coalesce in one act. Spence v. Washington, 418 U.S. 405, 409-11, 94 S.Ct. 2727, 2729-31, 41 L.Ed.2d 842 (1974). A statute that makes it a criminal offense to refuse to comply with a lawful order of the police to disperse is not unconstitutional as violative of the first amendment. Colten v. Kentucky, supra. Chanting words may be noise or speech, and unfurling a banner with words on it may be conduct involving speech. We conclude that one or more of the subsections implicates the first amendment.

That determination has a clear impact on the defendant's claim that subsections (C) and (E) are unconstitutionally void because they are vague. When a statute involves the possibility of an infringement on free speech, its meaning on its face must be capable of precise ascertainment in order to survive a void for vagueness challenge. Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1322, 12 L.Ed.2d 377 (1964); State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987). If a statute is challenged for the same reason but does not involve the first amendment, the determination of constitutionality is dependent on the statute's applicability to the particular facts. State v. Proto, supra at 697, 526 A.2d 1297.

When the first amendment is implicated, the defendant may challenge the validity of the statute's application to marginal situations on the ground of vagueness even though his own conduct may fall within the statute's proscription. State v. Pickering, 180 Conn. 54, 58 n. 3, 428 A.2d 322 (1980). This principle...