State v. Moulton, No. 18632.

CourtSupreme Court of Connecticut
Writing for the CourtPALMER
Citation78 A.3d 55,310 Conn. 337
PartiesSTATE of Connecticut v. Diana L. MOULTON.
Docket NumberNo. 18632.
Decision Date29 October 2013

310 Conn. 337
78 A.3d 55

STATE of Connecticut
v.
Diana L. MOULTON.

No. 18632.

Supreme Court of Connecticut.

Argued Sept. 18, 2012.
Decided Oct. 29, 2013.


[78 A.3d 59]


Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Michelle Bredefeld, deputy assistant state's attorney, for the appellant (state).

Annacarina Jacob, senior assistant public defender, for the appellee (defendant).


ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH HARPER and VERTEFEUILLE, Js.*

PALMER, J.

[310 Conn. 340]Following an incident in which the defendant, Diana L. Moulton, allegedly threatened a coworker during a telephone call, a jury found her guilty of breach of the peace in the second degree in violation of General Statutes § 53a–181(a)(3)1 and harassment in the second degree in violation of General Statutes § 53a–183 (a)(3).2 The trial court rendered judgment in accordance [310 Conn. 341]with the jury verdict, and the defendant appealed to the Appellate Court, which reversed the judgment of the trial court as to her conviction on both charges. See State v. Moulton, 120 Conn.App. 330, 353, 991 A.2d 728 (2010). With respect to the charge of breach of the peace in the second degree, the Appellate Court concluded that the defendant was entitled to a new trial because the trial court improperly failed to instruct the jury that it could find the defendant guilty only if it determined that the defendant's offending speech was a real or true threat not entitled to protection under the first amendment to the United States constitution.3 See id., at 340, 344, 351, 991 A.2d 728. With respect to the charge of harassment

[78 A.3d 60]

in the second degree, the Appellate Court concluded that the defendant was entitled to a judgment of acquittal on the ground of evidentiary insufficiency because the state conceded that its case was predicated entirely on the defendant's speech; see id., at 351–53, 991 A.2d 728; and, under controlling case law, § 53a–183 (a)(3), the telephone harassment statute, bars conduct relating to the actual making of the call only and not speech of any kind, even speech lacking first amendment protection. See id., at 337–38, 991 A.2d 728.

We granted the state's petition for certification, limited to the following two issues: First, “[d]id the Appellate Court properly determine that ... § 53a–183 (a)(3), harassment in the second degree, proscribes only the physical conduct involved in making a telephone call but not the verbal content thereof? If not, was the lack of an instruction on the definition of a ‘true threat’ [310 Conn. 342]harmless beyond a reasonable doubt?” State v. Moulton, 297 Conn. 916, 996 A.2d 278 (2010). Second, “[d]id the Appellate Court properly determine that the lack of an instruction on the definition of a ‘true threat,’ for purposes of proof of breach of the peace in the second degree under ... § 53a–181 (a)(3), was not harmless error beyond a reasonable doubt?” 4Id. With respect to the second certified question, we agree with the Appellate Court that the defendant is entitled to a new trial on the charge of breach of the peace in the second degree because the jury instructions were inadequate to ensure that the defendant was not convicted on the basis of constitutionally protected speech. With respect to the first certified question, although the Appellate Court properly followed controlling precedent in concluding that the telephone harassment statute bars conduct only, we now are persuaded that the statute also applies to offending speech not protected by the first amendment. In light of that prior precedent, however, we further conclude that the defendant, at the time she engaged in the conduct that resulted in her prosecution under § 53a–183 (a)(3), did not have fair notice, as principles of due process require, that she could be subjected to punishment under that statute for the verbal content of the telephone call. Accordingly, we conclude that the charge of harassment in the second degree must be dismissed. We therefore affirm the judgment of the Appellate Court except insofar as it ordered a judgment of acquittal, rather than a dismissal, of the charge of harassment in the second degree.

The opinion of the Appellate Court sets forth certain of the facts that the jury reasonably could have found. [310 Conn. 343]“On [Saturday] February 4, 2006, the defendant placed a telephone call to the Salem Turnpike [branch of the United States] post office in Norwich. The defendant, a letter carrier, working out of the Salem Turnpike branch, was on leave from her job at that time. Deborah Magnant, the [branch] supervisor of customer service, answered the telephone. Magnant recognized the caller's voice, and the caller identified herself as the defendant. Magnant testified that she had spoken with the caller over the telephone at least two other times [in] the previous four to five weeks and recognized the voice to be [the defendant's] but had never met her. The defendant asked to speak to David Ravenelle, the postmaster, but Magnant told her that he was not working that day. The defendant then

[78 A.3d 61]

asked to whom she was speaking, and Magnant identified herself. The defendant said: ‘Oh, I know you. I have talked to you before.’

“At that point, the defendant started talking about when she would be returning to work, ‘[a]nd then she said something about the shootings.’ Specifically, she said: ‘[T]he shootings, you know, the shootings in California. I know why she did that. They are doing the same thing to me that they did to her, and I could do that, too.’ The defendant was referring to an incident that took place approximately five days prior when a postal employee in California shot and killed several postal workers inside the postal facility where [the employee] worked.

“Magnant testified that the defendant's tone of voice was angry and agitated and that the statement about the shootings caused her alarm, so she began taking notes of the conversation. Magnant stated that the defendant continued to talk, ‘just sharing whatever was on her mind.’ She discussed her post-traumatic stress disorder and when she would be returning to work. She also asked for her union steward. The defendant seemed to be upset that she was out of work and talked [310 Conn. 344]about how her direct supervisor and the prior postmaster harassed and bullied her and how her supervisor was incompetent. The defendant also mentioned other postal employees by name. The call ended after the defendant told Magnant that she would be calling back on Monday, when she could speak to Ravenelle, and Magnant assured her that she would make sure that Ravenelle knew she would be calling.

“Magnant notified Ravenelle about the telephone call as soon as he arrived at work Monday morning, at approximately 6 a.m. Ravenelle contacted his supervisors and the postal inspection service, which acts as an internal police force for the postal service. Magnant spoke with postal inspectors that morning, who asked for her notes of the conversation and instructed her to call the local police. She contacted the police and filed an official [complaint] at that point.” State v. Moulton, supra, 120 Conn.App. at 332–34, 991 A.2d 728. Thereafter, the defendant was arrested and charged with breach of the peace in the second degree and harassment in the second degree. After a jury found the defendant guilty of both charges, the trial court imposed a total effective sentence of nine months imprisonment, execution suspended, and two years probation.

The defendant appealed from the judgment of conviction to the Appellate Court, which agreed with the defendant that she was entitled to reversal of her conviction on both charges. See id., at 353, 991 A.2d 728. With respect to the harassment charge, the Appellate Court concluded that the trial court improperly had permitted the jury to consider the content of the defendant's telephone call as determinative of whether the call was harassing in violation of the statute. See id., at 336–38, 991 A.2d 728. Relying on controlling precedent; see, e.g., State v. Bell, 55 Conn.App. 475, 480–81, 739 A.2d 714, cert. denied, 252 Conn. 908, 743 A.2d 619 (1999); see also State v. Murphy, 254 Conn. 561, 568–69, 757 A.2d 1125 (2000) (concluding [310 Conn. 345]that § 53a–183 [a][2], which prohibits, inter alia, mailings made with intent “to harass, annoy or alarm” and “in a manner likely to cause annoyance or alarm,” applies only to conduct, not speech [internal quotation marks omitted] ); the Appellate Court explained that, for purposes of the telephone harassment statute, “it is the physical act of placing the call and causing a ringing at the receiving end ... that constitutes the actus reus of the crime”; State v. Moulton, supra, 120 Conn.App. at 337, 991 A.2d 728; and any language that ensues in the subsequent

[78 A.3d 62]

telephone conversation may be considered only as circumstantial evidence of the defendant's intent in making the call. 5Id. The Appellate Court also concluded that the evidence was insufficient to establish “that the defendant's telephone call, alone or in conjunction with the defendant's words, conveyed a serious intention to harass the victim”; 6id., at 352, 991 A.2d 728; thereby entitling the defendant to a judgment of acquittal on that charge.7 See id., at 353, 991 A.2d 728. With respect to the breach of [310 Conn. 346]the peace charge, the Appellate Court concluded that a new trial was necessary because the trial court improperly had failed to instruct the jury that it could not find the defendant guilty on the basis of her speech unless that speech constituted a real or true threat to which the protection of the first amendment does not apply; see id., at 344, 991 A.2d 728; and, further, that the instructional impropriety was not harmless. See id.

On appeal to this court, the state claims that the Appellate Court misconstrued the...

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44 practice notes
  • State v. Elson, SC 18737
    • United States
    • Supreme Court of Connecticut
    • June 3, 2014
    .... . once we are convinced that they were incorrect and unjust." (Citations omitted; internal quotation marks omitted.) State v. Moulton, 310 Conn. 337, 362-63 n.23, 78 A.3d 55 (2013). 20. For additional discussion of the adequacy of the record for review, including the state's claims to the......
  • State v. Peeler, No. 18125.
    • United States
    • Supreme Court of Connecticut
    • May 26, 2016
    ...in part Flagg Energy Development 140 A.3d 886 Corp. v. General Motors Corp., 244 Conn. 126, 709 A.2d 1075 [ (1998) ] ); State v. Moulton, 310 Conn. 337, 362 n. 23, 363, 78 A.3d 55 (2013) (overruling “prior precedent to the contrary” of court's conclusion that “[General Statutes] § 53a–183 [......
  • State v. Nowacki, No. 34577.
    • United States
    • Appellate Court of Connecticut
    • March 10, 2015
    ...this longstanding rule.As the state pointed out in its brief, however, our Supreme Court has modified that rule. In State v. Moulton, 310 Conn. 337, 362, 78 A.3d 55 (2013), the court held that § 53a–183 (a) proscribes a manner of communication that also contains certain forms of harassing a......
  • Gleason v. Smolinski, SC 19342
    • United States
    • Supreme Court of Connecticut
    • November 3, 2015
    ...applicable to the states through the due process clause of the fourteenth amendment to the United States constitution." State v. Moulton, 310 Conn. 337, 341 n.3, 78 A.3d 55 (2013). In a footnote, the defendants raise a separate claim under article first, § 4, of the Connecticut constitution......
  • Request a trial to view additional results
44 cases
  • State v. Elson, SC 18737
    • United States
    • Supreme Court of Connecticut
    • June 3, 2014
    .... . once we are convinced that they were incorrect and unjust." (Citations omitted; internal quotation marks omitted.) State v. Moulton, 310 Conn. 337, 362-63 n.23, 78 A.3d 55 (2013). 20. For additional discussion of the adequacy of the record for review, including the state's claims to the......
  • State v. Peeler, No. 18125.
    • United States
    • Supreme Court of Connecticut
    • May 26, 2016
    ...in part Flagg Energy Development 140 A.3d 886 Corp. v. General Motors Corp., 244 Conn. 126, 709 A.2d 1075 [ (1998) ] ); State v. Moulton, 310 Conn. 337, 362 n. 23, 363, 78 A.3d 55 (2013) (overruling “prior precedent to the contrary” of court's conclusion that “[General Statutes] § 53a–183 [......
  • State v. Nowacki, No. 34577.
    • United States
    • Appellate Court of Connecticut
    • March 10, 2015
    ...this longstanding rule.As the state pointed out in its brief, however, our Supreme Court has modified that rule. In State v. Moulton, 310 Conn. 337, 362, 78 A.3d 55 (2013), the court held that § 53a–183 (a) proscribes a manner of communication that also contains certain forms of harassing a......
  • Gleason v. Smolinski, SC 19342
    • United States
    • Supreme Court of Connecticut
    • November 3, 2015
    ...applicable to the states through the due process clause of the fourteenth amendment to the United States constitution." State v. Moulton, 310 Conn. 337, 341 n.3, 78 A.3d 55 (2013). In a footnote, the defendants raise a separate claim under article first, § 4, of the Connecticut constitution......
  • Request a trial to view additional results

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