State v. Pickering

Citation428 A.2d 322,180 Conn. 54
CourtSupreme Court of Connecticut
Decision Date04 March 1980
PartiesSTATE of Connecticut v. William PICKERING.

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Eugene J. Callahan, Asst. State's Atty., for appellant (state).

Ralph L. Palmesi, Bridgeport, for appellee (defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

COTTER, Chief Justice.

The issue presented to us on this appeal is whether General Statutes § 53-21 as applied to the facts of this case is so vague and indefinite as to violate the due process provisions of article first, § 8 of the state constitution and the fourteenth amendment of the federal constitution. 1 The constitutionality of this statute has not been raised before in this court. As it pertains to this appeal the statute provides: "Any person who ... does any act likely to impair the ... morals of any such child (under the age of sixteen years), shall be fined not more than five hundred dollars or imprisoned not more than ten years or both." 2

The defendant was tried to a jury on a three count information charging two counts of conduct likely to impair the morals of a minor in violation of General Statutes § 53-21 and one count of sexual assault in the second degree in violation of General Statutes § 53a-71. The first count alleging a violation of § 53-21 involved conduct which occurred between February, 1975 and September, 1975 at the home of the victim's parents. The second count under § 53-21 concerned acts which took place between October, 1975 and October, 1976 at the residence of the defendant.

The jury found the defendant guilty of both counts of violating § 53-21, but were unable to reach a verdict on the sexual assault count which resulted in a declaration of a mistrial by the trial court as to that count. Immediately after the rendition of the verdict, the defendant filed numerous motions all challenging the constitutionality of § 53-21; the trial court granted the defendant's motions in arrest of judgment and to dismiss the information on the grounds that § 53-21 is unconstitutionally vague as applied to the facts of this case. The state requested and was granted permission to appeal the trial court's decision.

I

As a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue. United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319, 46 L.Ed.2d 228; United States v. Mazurie, 419 U.S. 544 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706; United States v. National Dairy Products Corporation, 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-598, 9 L.Ed.2d 561; United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524. To do otherwise, absent the appearance that the statute in question intrudes on fundamental constitutional guarantees, particularly first amendment freedoms, 3 would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of complex legislation. United States v. Raines, supra; Barrows v. Jackson, 346 U.S. 249, 256, 73 S.Ct. 1031, 97 L.Ed. 1586. The delicate power of deciding that legislation is unconstitutional would be exercised by adjudicating the rights of parties not before the court. Hence, that a statutory provision may be of questionable applicability in speculative situations is usually immaterial if the challenged provision applies to the conduct of the defendant in the case at issue. United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877.

From the evidence presented concerning the first count in the indictment charging a violation of § 53-21 the jury could have found: The victim, the defendant's daughter, was born on April 12, 1963. On several Saturday mornings between February and April 1975, while the defendant was living in the same apartment with his daughter, he sexually molested her in his room at a time when the victim's mother habitually went shopping. We do not think it appropriate in this opinion to delineate in detail the full extent of the defendant's bodily contact with and lewd touching of his daughter which was described with specificity by her to the jury. From April of 1975 until the defendant moved from the address named in the first count of the information in August of 1975, the defendant repeatedly came into the victim's room when no one else was up and about and attempted to have sexual intercourse with the victim.

The evidence presented on the second count charging a violation of § 53-21 concerned events after the defendant moved from the address named in the first count of the information to a dwelling named in the second count of the information in September of 1975. The victim tried to avoid going to her father's and when she did go she tried to bring someone along so that her father's actions might be thwarted. Nonetheless, on some occasions at her father's while her younger brother was left watching television downstairs, the victim was asked upstairs and the defendant would attempt to have sexual intercourse with her. In October of 1975, the defendant took a polaroid picture of the victim naked in his upstairs bedroom. Also on about eight or nine occasions over a period of four months the defendant sketched the victim nude in his apartment after initially stating he would pay her $5 for each picture. Between July, 1976 and October 26, 1976, the defendant on several occasions sexually abused the victim. On October 26, 1976, the defendant took numerous lurid pictures of the victim while she was naked and again attempted sexual intercourse. The victim told her mother of her father's actions the next day.

II

A long line of United States Supreme Court decisions have established a basic principle to be considered when a statute is under attack as void for vagueness. It may be described as a fair warning principle which mandates that as a matter of due process a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid. "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; (A)nd a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. Accord, Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243; Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 244, 46 L.Ed.2d 185; United States v. Mazurie, 419 U.S. 544, 553, 95 S.Ct. 710, 715, 42 L.Ed.2d 706; Smith v. Goguen, 415 U.S. 566, 572 n.8, 94 S.Ct. 1242, 1247 n.8, 39 L.Ed.2d 605; United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989; Winters v. New York, 333 U.S. 507, 515-16, 68 S.Ct. 665, 670, 92 L.Ed. 840; Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888. See generally note, "The Void-For-Vagueness Doctrine in the Supreme Court," 109 U.Pa.L.Rev. 67 (1960); comment, "Recent Supreme Court Developments of the Vagueness Doctrine," 7 Conn.L.Rev. 94 (1974). See also Stolberg v. Caldwell, 175 Conn. 586, 610-11, 402 A.2d 763; State v. Chetcuti, 173 Conn. 165, 167, 377 A.2d 263; Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68.

This notion of fair warning is intended to ensure that vague laws do not become a trap for the innocent. Hynes v. Mayor of Oradell, supra, 425 U.S. 622, 96 S.Ct. at 1761; Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222; Papachristou v. City of Jacksonville, 405 U.S. 156, 162-63, 92 S.Ct. 839, 843, 31 L.Ed.2d 110. As Mr. Justice Holmes explained in McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816: "Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make a warning fair, so far as possible the line should be clear."

It has been recently stated that "(a)ll the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden." Rose v. Locke, supra, 423 U.S. 50, 96 S.Ct. 244. Thus, a penal statute may survive a vagueness attack solely upon a consideration of whether it provides fair warning. 4 United States v Powell, supra; Rose v. Locke, supra; Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; State v. Chetcuti, 173 Conn. 165, 166-67, 377 A.2d 263. Since we decide that an innocent defendant has not been denied fair warning, the words of General Statutes § 53-21 at issue avoid unconstitutional vagueness.

III

If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since "(m)any statutes will have some inherent vagueness, for '(i)n most English words and phrases there lurk uncertainties.' Robinson v. United States, 324 U.S. 282, 286, 54 S.Ct. 666, 668, 89 L.Ed. 944." Rose v. Locke, supra, 423 U.S. 49-50, 96 S.Ct. 244. References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute's meaning to determine if it gives fair warning. Id. Thus, prior decisions of this court which delineate a statute's reach can constitute sufficient notice of the acts prohibited to render ...

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