State v. Moulton

• Decision Date: 13 April 2010
• Docket Number: No. 29617.,29617.
• Citation: 991 A.2d 728,120 Conn.App. 330
• Parties: STATE of Connecticut v. Diana L. MOULTON.
• Court: Connecticut Court of Appeals

991 A.2d 728

120 Conn.App. 330

STATE of Connecticut v. Diana L. MOULTON.

No. 29617.

Appellate Court of Connecticut.

Argued April 15, 2009.

Decided April 13, 2010.

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

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

BEACH, ROBINSON and McDONALD, Js.

ROBINSON, J.

The defendant, Diana L. Moulton, 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) and harassment in the second degree in violation of General Statutes § 53a-183(a)(3). On appeal, the defendant claims that her conviction for harassment should be reversed because it was based on speech that did not constitute a true threat or intolerably invade a substantial privacy interest. In addition, she claims that her conviction of both crimes should be reversed because (1) the court improperly instructed the jury and (2) the evidence was insufficient to support her conviction. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On February 4, 2006, the defendant placed a telephone call to the Salem Turnpike 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's 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 over the previous four to five weeks and recognized the voice to be that of the defendant 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 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, "and then she said something about the shootings." Specifically, she said: "The 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 she 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 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 report at that point.

The defendant was arrested and charged with breach of the peace in the second degree in violation of § 53a-181(a)(3)¹ and harassment in the second degree in violation of § 53a-183(a)(3).² A trial was held on December 5, 2007, and the jury returned a verdict of guilty on both counts on that date. On January 29, 2008, the defendant was sentenced to six months incarceration, execution suspended, and two years probation on the breach of the peace charge; ninety days incarceration, execution suspended, and one year probation on the harassment charge, to be served consecutively. This appeal followed.

I

The defendant first claims that her conviction for harassment must be reversed because the application of the harassment statute, § 53a-183 (a)(3), to her telephone conversation implicated her first amendment rights.³ She asserts that her conviction was an infringement of her freedom of speech because her words were constitutionally protected. According to the defendant, the jury instructions allowed the jury to find her guilty based on speech that was not given first amendment scrutiny. We agree. We conclude that the statute on its face does not infringe on the defendant's freedom of speech. In the present case, however, the state concedes that it prosecuted the defendant for her speech alone and not for her conduct in making the telephone call. This is a misapplication of the statute, § 53-183(a)(3), and we find nothing in the jury instructions that corrects this improper construction. Because the defendant was punished for the verbal content of her telephone call, the statute, § 53-183(a)(3), was unconstitutional as applied.

The defendant's claim is unpreserved, and she seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁴ The record is adequate for review, and the claim, asserting a violation of the defendant's right to freedom of speech, is of constitutional magnitude.

"If an improper jury instruction is of constitutional magnitude, the burden is on the state to prove harmlessness beyond a reasonable doubt. ... When reviewing a challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety ... and judged by its total effect rather than by its individual component parts. ... The test of a court's charge is ... whether it fairly presents the case to the jury in such a way that injustice is not done to either party. ... In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. ... Moreover, as to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, a defendant may prevail ... only if ... it is reasonably possible that the jury was misled. ..." (Citations omitted; internal quotation marks omitted.) State v. Fleming, 111 Conn.App. 337, 353-54, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009).

The harassment statute was enacted for the purpose of thwarting the growing practice of using the telephone as a device to intrude upon others' privacy in a tormenting manner. See State v. Anonymous (1978-4), 34 Conn.Supp. 689, 696, 389 A.2d 1270 (1978); Gormley v. Director, Connecticut State Dept. of Probation, 632 F.2d 938, 940, 941-42 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S.Ct. 591, 66 L.Ed.2d 485 (1980). The United States Court of Appeals for the Second Circuit has declared that "by its express terms the statute may be violated where no conversation at all occurs." Gormley v. Director, Connecticut State Dept. of Probation, supra, at 942. "What is proscribed is the making of a telephone call, with the requisite intent and in the specified manner." Id., at 941-42.

In State v. Bell, 55 Conn.App. 475, 481, 739 A.2d 714, cert. denied, 252 Conn. 908, 743 A.2d 619 (1999), this court unequivocally distinguished § 53a-183(a)(3) as a statute that regulates conduct, not speech. This court upheld the conviction of the defendant in Bell for harassment in the second degree where the defendant had called employees of a social services program approximately forty-five times. Id., at 476-77, 739 A.2d 714. After examining the language of § 53a-183(a)(3), this court found that it prohibits the conduct of using the telephone as a device to "harass, annoy or alarm another person" but that the statute does not facially proscribe speech communicated via telephone. Id., at 480-81, 739 A.2d 714. Any speech that may accompany such telephone calls is considered to be circumstantial evidence of the defendant's intent. State v. Lewtan, 5 Conn.App. 79, 83, 497 A.2d 60 (1985). For example, a telephone call made at what would otherwise be an innocuous time, to someone the caller might normally call, may be harassing if what the caller said during the telephone call evinced his intention to harass through the actual ringing of the telephone.

Therefore, 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. This act is what the statute punishes under § 53-183(a)(3) and not the language that may ensue in the subsequent telephone conversation. For those reasons, we agree with the court in Bell that § 53-183(a)(3) is not unconstitutionally overbroad on its face. In the present case, however, the state prosecuted the defendant on the basis of her speech, not her conduct in making the telephone call, and, therefore, her conviction was based on an impermissible construction of § 53a-183(a)(3), which implicated her first amendment rights. Accordingly, we conclude that the statute was unconstitutional as applied to the defendant.

During a telephone call to the post office, the...