State v. Nita, 9820

• Decision Date: 22 April 1992
• Docket Number: No. 9820,9820
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Mircela NITA.

Page 1322

604 A.2d 1322

27 Conn.App. 103

STATE of Connecticut v. Mircela NITA.

No. 9820.

Appellate Court of Connecticut.

Argued Jan. 8, 1992.

Decided March 17, 1992.

Certification Denied April 22, 1992.

D. Kirk Westfall, Sp. Public Defender, for appellant (defendant).

Marjorie Allen Dauster, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and David Newman, Supervisory Asst. State's Atty., for appellee (state).

Before LANDAU, HEIMAN and CRETELLA, JJ.

HEIMAN, Judge.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of interfering with an officer in violation of General Statutes § 53a-167a ¹ and breach of the peace in violation of General Statutes § 53a-181(a)(6). ² The defendant was found not guilty of assault of a peace officer in violation of General Statutes § 53a-167c. She claims that the trial court improperly (1) refused to instruct the jury, as requested, on her first amendment right to free speech, (2) failed to instruct the jury that intent is an element of interfering with an officer, (3) imposed multiple punishments for her convictions of both interfering with an officer and breach of the peace, and (4) denied her motion for a bill of particulars. We affirm the trial court's judgment.

The jury could reasonably have found the following facts. July 2, 1989, was one of the busiest days of the summer at Hammonasset Beach state park, and the park roads had heavy motor vehicle, bicycle and pedestrian traffic. In an attempt to slow some of the park traffic, officers of the department of environmental protection conducted a radar operation on one of the park's roads. An officer operated a radar unit from a patrol vehicle on the median divider, and radioed descriptions of the vehicles to be stopped for exceeding the twenty mile per hour speed limit to officers stationed about one quarter of a mile ahead.

At about 5:30 p.m., the defendant was a passenger in a yellow sports car driven by her former husband, Constantin Nita. After the radar operator clocked the vehicle at forty miles per hour, he radioed its speed and description to the officers ahead. After receiving the call, Officer Kristen Morehouse stepped into the roadway and directed the car to pull onto the shoulder of the road. Morehouse then approached the vehicle and asked Constantin Nita for his driver's license, registration and insurance card.

Constantin Nita exited his car and retrieved his license from the back of it. When Officer Sean Dautrich saw Constantin Nita exit the vehicle, he moved to assist Morehouse. The defendant, holding the vehicle's registration certificate, exited the passenger side of the car and walked around to the driver's side, which was adjacent to the roadway. When Dautrich requested that she give him the certificate of registration, she refused to do so, and instead told the officers that they were not real police officers and that stopping the vehicle was ridiculous because other cars traveling faster were not stopped. When Morehouse explained that a radar unit set up down the road had indicated that the car had exceeded the speed limit, the defendant angrily declared that she would not show the registration to Dautrich unless she was shown proof of the radar reading. Dautrich then requested that the defendant get back into the car for her own safety and that of the officers. Dautrich also told her that there was no reason for her to be outside the car because the stop involved only the vehicle's driver.

The defendant refused to get into the car and began shouting at the officers. She then obtained a pen from the vehicle's interior and demanded the officers' names and badge numbers, ostensibly for the purpose of filing a complaint against them. The defendant positioned her face inches from Dautrich's while jumping up and down and screaming at him. Next, she held the pen in a knife grip and jabbed it at him, forcing him to retreat into the path of moving traffic. The defendant screamed profanities at the officers throughout the altercation. After observing the defendant force Dautrich into the road, Officer Brian Heavren proceeded into the road's right lane and directed traffic into the left lane. At Heavren's request, Officer Christopher Brindisi positioned himself about 100 yards from the altercation and blocked the right lane of traffic in an attempt to protect his fellow officers.

Dautrich and Morehouse attempted to place the defendant under arrest. She continued to scream obscenities at them, kicked at them in an attempt to prevent them from restraining her, kicked Dautrich in the groin, attempted to bite Officer Christopher McWilliams, another officer assisting in the arrest, and refused to enter the officers' cruiser. Eventually, the officers handcuffed her, picked her up and placed her in the cruiser. The incident, from the initial stop to the defendant's arrest, lasted somewhere between ten and fifteen minutes, and attracted a crowd consisting of between twenty and fifty persons.

The defendant was sentenced, after a jury trial, to one year incarceration, execution suspended after thirty days, for interfering with an officer and received a $250 fine for breach of peace.

I

The defendant first asserts that the trial court improperly refused to charge the jury, as requested, ³ regarding the extent to which the first amendment to the United States constitution prohibited the state from convicting her of the offenses charged. We disagree.

We first examine the extent to which the first amendment restricts the scope of the interfering with an officer statute. On its face, the statute proscribes obstructing, resisting, hindering or endangering any peace officer in the performance of his duties. General Statutes § 53a-167a. Intent to cause the prohibited result is an essential element of the offense. State v. Peruta, 24 Conn.App. 598, 603, 591 A.2d 140, cert. denied, 219 Conn. 912, 593 A.2d 137 (1991); State v. Flynn, 14 Conn.App. 10, 18, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S.Ct. 226, 102 L.Ed.2d 217 (1988). While the statute prohibits some acts of verbal resistance as well as physical resistance, "[t]he statute's requirement of intent limits its application to verbal conduct intended to interfere with a police officer and excludes situations in which a defendant merely questions a police officer's authority or protests his or her action." State v. Williams, 205 Conn. 456, 471-72, 534 A.2d 230 (1987).

The defendant does not dispute the sufficiency of the state's evidence to convict her of interfering with an officer. Rather, she claims that the trial court's failure to instruct the jury regarding the extent to which the first amendment protects her activities created a reasonable possibility that the jury convicted her on the basis of protected speech. "A theory of defense instruction is appropriate, upon proper request; State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985); only when evidence supporting a 'legally recognized defense' is placed before the jury. State v. Cassino, 188 Conn. 237, 243, 449 A.2d 154 (1982); State v. Rosado, [178 Conn. 704, 707, 425 A.2d 108 (1979) ]; see State v. Harris, 189 Conn. 268, 274, 455 A.2d 342 (1983)." State v. Silveira, 198 Conn. 454, 462, 503 A.2d 599 (1986). "A general 'claim of innocence or a denial of participation in the crime charged is not a legally recognized defense and does not entitle a defendant to a theory of defense charge. [State v. Rosado, supra.]' " State v. Silveira, supra. While couched in the language of the first amendment, the requests to charge constituted nothing more than a proposed instruction that the defendant did not possess the requisite intent if she merely questioned the officer's authority or protested his action. See State v. Williams, supra. Because the first amendment defense represented an intrinsically factual claim that she did not commit an element of the offense, the trial court was not required to deliver a separate jury instruction on it. See State v. Silveira, supra.

The defendant also claims that the trial court improperly refused to instruct the jury, as requested, regarding the extent to which the first amendment prohibited the state from convicting her of breach of the peace. A request to charge must be adapted to the evidence in the case or to the issues before the jury. State v. Maturo, 188 Conn. 591, 600, 452 A.2d 642 (1982); State v. Timmons, 7 Conn.App. 457, 467, 509 A.2d 64 (1986) appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987). A trial court properly may refuse to deliver a requested instruction that raises an issue not supported by the pleadings or the evidence, particularly where such a charge might influence the jury unfairly. See State v. Timmons, supra.

The defendant claims that she was entitled to the requested instruction because the first amendment prohibited her conviction of breach of peace on the basis of merely expressive activity. This instruction was unnecessary because the relevant statutory language, the charging documents and the trial court's instructions stated that the defendant was charged with breach of peace based on her conduct, not her speech. General Statutes § 53a-181(a)(6), the statutory subdivision that the defendant was charged with violating, proscribes certain acts that create a "public, hazardous or physically offensive condition." Compare General Statutes § 53a-181(a)(5) (explicitly prohibiting speech.) The long form information substantially mirrors the statutory language, and accuses the defendant of violating the statute by performing an "act" that forced peace officers into a lane of traffic and required other officers to stop traffic. Finally, the trial court's instructions on breach of the peace repeatedly referred to prohibited acts and conduct, not speech. Thus, the charging documents and the trial court's instructions uniformly stated that the defendant was...