State v. Murphy

Citation254 Conn. 561,757 A.2d 1125
CourtSupreme Court of Connecticut
Decision Date12 September 2000
Parties(Conn. 2000) STATE OF CONNECTICUT V. THOMAS J. MURPHY III (SC 16282)
OPINION

Palmer, J.

A jury found the defendant, Thomas J. Murphy III, guilty of one count of criminal attempt to commit harassment in the second degree in violation of General Statutes §§ 53a-183 (a) (2) 1 and 53a-49, 2 and, subsequently, also found the defendant guilty of being a persistent offender under General Statutes § 53a-40d. 3 The trial court rendered judgment in accordance with the jury verdicts and the defendant appealed. 4 On appeal, the defendant claims that: (1) his conviction of criminal attempt to commit harassment in the second degree violated his right to free speech under the first and fourteenth amendments to the United States constitution; 5 (2) the trial court improperly failed to instruct the jury that it could not convict him on the basis of the content of his speech; and (3) the state failed to prove his guilt beyond a reasonable doubt. We reject these claims and, consequently, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant met the victim in 1990 and their relationship subsequently became romantic. Their relationship, however, was marked by domestic discord, and the defendant was arrested on domestic violence charges in September and December, 1994, and again in February, 1995. Ultimately, the defendant was convicted of two counts of assault in the third degree 6 stemming from those incidents of domestic violence. The defendant received a suspended sentence and was placed on probation. In addition, the defendant was ordered to attend Alcoholics Anonymous meetings and to undergo anger management training. A protective order prohibiting the defendant from contacting the victim also was issued at that time. That order later was modified at the victim's request to permit contact between the victim and the defendant. By December, 1995, however, the victim had terminated her romantic relationship with the defendant.

On January 18, 1996, the defendant entered the victim's residence without her consent and compelled her to engage in sexual intercourse. Consequently, the defendant was arrested and charged with sexual assault in the first degree, 7 among other offenses. Although, thereafter, another protective order was issued prohibiting the defendant from having any contact with the victim, the defendant, who remained incarcerated in lieu of bond pending his trial, persisted in his efforts to contact the victim by mail and telephone, often entreating her to drop the sexual assault charges. As a result of these contacts, the defendant was charged, in February, 1996, with violating the protective order, and, in May, 1996, with tampering with a witness. In August, 1996, the defendant was found to have violated the terms and conditions of his probation that had been imposed in connection with his third degree assault convictions. 8

In October, 1996, the defendant pleaded guilty to sexual assault in the first degree under the Alford doctrine. 9 On November 15, 1996, the trial court imposed a sentence of twelve years imprisonment, suspended after five years, and ten years probation. Among the special conditions imposed upon the defendant was a prohibition against any contact with the victim or her children. 10

Notwithstanding the court's prohibition against contact with the victim, the defendant continued to attempt to contact her by telephone and mail. On November 25, 1996, the victim received a birthday card from the defendant, which she opened and read. The victim testified that the defendant's comments in the card were alarming and offensive, 11 and that she was particularly upset at receiving the card so soon after the defendant had been convicted and sentenced for sexually assaulting her. The victim turned the card over to State Trooper Lynn Lewis, who had investigated the defendant's sexual assault case.

On January 6, 1997, the victim received three more letters from the defendant. The victim, having been upset by the defendant's continued attempts to contact her, and assuming that the letters contained statements similar to those in the birthday card, turned the letters over to Lewis without opening them. One of the letters, consisting of seven handwritten pages, contained two poems and a note in which the defendant complained about his misfortunes, professed his love for the victim and her children and appealed to her for help. Another letter, consisting of ten handwritten pages, was angrier in tone and repeatedly accused the victim of lying about the sexual assault and attempting to destroy the defendant's life. In one passage, the defendant wrote to the victim: "[Y]ou are afraid of what's going to happen when I get out. So you figure [you will] lie to keep me in here for as long as [you] can [sic] that's not the right answer . . . believe me. It's only going to make matters worse . . . ." The defendant later added: "[W]hat do you think is going to happen then . . . [w]hen I do get out of here after all that time."

The state filed a three count information charging the defendant with one count of harassment in the second degree and two counts of attempt to commit harassment in the second degree. The birthday card that the victim received in the mail from the defendant on November 25, 1996, provided the basis for the count of harassment in the second degree. The defendant's mailing of the seven page letter that included the two poems and the note formed the basis for one of the two counts of attempt to commit harassment in the second degree, and the mailing of the ten page letter provided the basis for the second such count. The jury acquitted the defendant of harassment in the second degree and found him guilty of the count of attempt to commit harassment in the second degree predicated on the mailing of the seven page letter. The jury could not reach a verdict on the other count of attempt to commit harassment in the second degree and, as a result, the trial court declared a mistrial as to that count. 12 The defendant appeals from the judgment of conviction rendered in accordance with the jury's verdict of guilty of attempt to commit harassment in the second degree based upon the mailing of the seven page letter to the victim.

I.

The defendant first claims that the state violated his first amendment rights by "[u]nconstitutionally [applying] . . . § 53a-183 (a) (2) [t]o [his] [s]peech . . . ." Specifically, the defendant contends that his conviction was predicated upon the content of the letter that he sent to the victim rather than his conduct in using the mail to harass the victim. 13 We disagree.

The defendant concedes that his claim is unpreserved and, therefore, seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), 14 and the plain error doctrine. 15 Although the record is adequate for our review of the defendant's claim, we conclude that he is not entitled to a new trial under Golding because he has not established a constitutional violation. We further conclude that the defendant has not demonstrated plain error because the alleged impropriety did not implicate the fairness of his trial.

General Statutes § 53a-183 (a) (2) prohibits communications by mail that are made "with intent to harass, annoy or alarm" and "in a manner likely to cause annoyance or alarm . . . ." Thus, § 53a-183 (a) (2) proscribes harassing conduct via mail and does not seek to regulate the content of communications made by mail. 16 State v. Snyder, 49 Conn. App. 617, 625, 717 A.2d 240 (1998); see also Gormley v. Director, Connecticut State Dept. of Probation, 632 F.2d 938, 942 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980) (§ 53a-183 regulates conduct, not mere speech); State v. Bell, 55 Conn. App. 475, 481, 739 A.2d 714, cert. denied, 252 Conn. 908, 743 A.2d 619 (1999) (same); State v. Anonymous (1978-4), 34 Conn. Sup. 689, 696, 389 A.2d 1270 (1978) (same).

Nevertheless, in a prosecution seeking a conviction under § 53a-183, the fact finder may consider the language used in the communication in determining whether the state has proven the elements of the offense, namely, that the defendant intended to harass, annoy or alarm, and that he did so in a manner likely to cause annoyance or alarm. See Gormley v. Director, Connecticut State Dept. of Probation, supra, 632 F.2d 943; State v. Bell, supra, 55 Conn. App. 484; State v. Lewtan, 5 Conn. App. 79, 83, 497 A.2d 60 (1985); see also Wisconsin v. Mitchell, 508 U.S. 476, 489, 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993) ("[t]he First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent"). Indeed, the use of such evidence may be "indispensable to a proper determination of whether the statutory requirement of intent to harass ha[s] been proven." (Internal quotation marks omitted.) Gormley v. Director, Connecticut State Dept. of Probation, supra, 943.

The state introduced a number of letters into evidence, including the letters that formed the basis of the charges against the defendant, as well as certain tape recordings and transcripts of telephone conversations between the defendant and the victim. 17 The defendant did not object to the introduction of any of these communications at trial. 18 During closing arguments, the prosecutor urged the jury to examine the language the defendant used in his letters and conversations with the victim to assist it in...

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