State v. Rivera

• Decision Date: 02 February 1993
• Docket Number: No. 10362,10362
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Julio RIVERA.

Page 1146

619 A.2d 1146

30 Conn.App. 224

STATE of Connecticut v. Julio RIVERA.

No. 10362.

Appellate Court of Connecticut.

Argued Sept. 30, 1992.

Decided Feb. 2, 1993.

Susan A. Brown, Asst. Public Defender, with whom, on the brief, was Adam Teller, Asst. Public Defender, for the appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and T.R. Paulding, Former Asst. State's Atty., for the appellee (state).

Before EDWARD Y. O'CONNELL, LAVERY and LANDAU, JJ.

LANDAU, Judge.

The defendant was convicted, after a trial to the court, ¹ of rioting at a correctional institution in violation of General Statutes § 53a-179b(a). ² On appeal, the defendant claims that the trial court improperly (1) rejected the defendant's argument that General Statutes § 53a-179b(a) is unconstitutionally vague and overbroad, and (2) failed to grant the defendant's motion for judgment of acquittal on the basis of insufficient evidence. We affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. On June 25, 1990, a riot occurred at the Carl Robinson Correctional Institution. Inmates had posted fliers the previous weekend calling for a strike. Between 6 and 7 a.m. on the morning of the riot, correction officials noticed that few inmates were entering the mess hall for breakfast. This was considered unusual. Groups of inmates gathered in an open area known as "the circle," which is adjacent to several correctional buildings. A large group of inmates was at picnic tables in the circle and these inmates were heckling those inmates who were entering the mess hall for breakfast.

Correction officials made announcements over the public address system ordering the inmates to clear the yard. Officers Gary Reilly and Peter McDevitt walked around the circle to determine what was happening. As they walked around the circle, they focused their attention on the group of inmates at the picnic tables. At that time, Reilly recognized the defendant as being in that group. The officers approached that group and were surrounded by four inmates who began to "bump" them. The defendant was on a picnic table. Reilly felt that the situation was getting very serious and radioed the officials operating the public address system and told them not to make any more announcements. Despite his requests, two more orders to clear the yard were broadcast. A group of about 200 inmates began to march around the circle, shouting loudly. McDevitt observed the defendant with about ten other inmates near the front of this group.

Reilly ran to the front of the group and attempted to calm the inmates. Despite his attempts, the disturbance escalated into a full-fledged riot. Inmates began running in all directions, throwing rocks and setting fires. Some inmates displayed a banner demanding media coverage. The inmates looted some buildings and burned others. Using tear gas, the correctional emergency response team restored order several hours later.

At trial, the defendant presented evidence in support of his claims that he was not part of the mob of inmates involved in the riot. The defendant also attacked the identification made by McDevitt.

After the trial court found the defendant guilty, the defendant filed a motion for judgment of acquittal, which the court denied. The trial court stated that it found the identification of the defendant by McDevitt credible. The trial court also found (1) that the defendant had disobeyed the order to clear the yard when he remained seated on the picnic table, and (2) that, by not complying with the order to clear the yard, the defendant did aid, abet, assist and take part in a disorder in violation of General Statutes § 53a-179b(a).

I

A

The defendant claims that General Statutes § 53a-179b is unconstitutionally vague on its face and should not be enforced. We disagree. Ordinarily, when a litigant challenges a statute as void for vagueness under the United States or state constitution, we confine our inquiry to the statute's applicability to the facts of the case. State v. Cavallo, 200 Conn. 664, 670, 513 A.2d 646 (1986); State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984). Where, however, a challenged statute, if vague, could intrude on fundamental constitutional guarantees such as first amendment rights, we will refuse to enforce the statute if we find that it is unconstitutionally vague on its face. State v. Cavallo, supra; see Smith v. Goguen, 415 U.S. 566, 573 n. 10, 94 S.Ct. 1242, 1247 n. 10, 39 L.Ed.2d 605 (1974); Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972); Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959).

"Our inquiry into the facial validity of a statute focuses on whether indefiniteness in the meaning of the statute could reasonably create uncertainty over whether the statute prohibits expression that is protected by the first amendment. Such ambiguity is unconstitutional for two reasons: "(1) it may deter individuals from exercising their first amendment freedoms for fear of incurring criminal liability; and (2) it vests enforcement officials with undue discretion to interfere with the right to freedom of speech." " State v. Cavallo, supra, 200 Conn. at 671, 513 A.2d 646; see Smith v. Goguen, supra, 415 U.S. at 573-76, 94 S.Ct. at 1247-48; Grayned v. Rockford, supra, 408 U.S. at 109, 92 S.Ct. at 2299; State v. Pickering, 180 Conn. 54, 57-58 n. 3, 428 A.2d 322 (1980).

Section 53a-179b was authoritatively construed and upheld in State v. Rogue, 190 Conn. 143, 460 A.2d 26 (1983). Our Supreme Court held that "[b]y the use of the words 'incites,' 'instigates,' 'organizes,' 'connives at' and 'causes,' the statute makes those who commence, in the sense of plan, begin or start an occurrence proscribed by the second portion of the statute, whether organized or spontaneous, subject to conviction of a class B felony. In like manner, the statute, by use of the words 'aids,' 'abets,' 'assists' or 'takes part in,' does the same to those who join in any such occurrence. In short, although nine separate verbs are used, their common meanings and their association with each other causes them to fall into two groups: those that cover the leaders or planners and those who follow them in the proscribed occurrence, whether it is organized or spontaneous." Id., at 152-53, 460 A.2d 26. Rogue teaches us that this statute is not unconstitutionally vague. Actions that violate the statute are clearly set forth and there is no ambiguity as to its meaning. Therefore the defendant's claim must fail.

Nor is this statute unconstitutionally vague as applied to the facts of this case. " 'In order to surmount a vagueness challenge, "a statute must afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited." McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979). The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948)....' State v. Schriver, 207 Conn. 456, 460-61, 542 A.2d 686 (1988)." State v. Palangio, 24 Conn.App. 300, 302-303, 588 A.2d 644 (1991). A penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning. State v. Pickering, supra, 180 Conn. at 61, 428 A.2d 322.

State v. Rogue, supra, provides adequate warning that the defendant's conduct is prohibited by § 53a-179b. The defendant was identified as having been among those inmates at the front of the group that marched around the circle prior to the beginning of the full-fledged riot. The defendant refused to obey the order to clear the yard. He also refused to heed Officer Reilly's attempt to prevent the escalation of the inmates activities. By refusing to cooperate with the attempts to maintain calm, and by marching around the circle with the inmates, the defendant did aid, abet, assist and take part in this disorder in violation of § 53a-179b.

B

The defendant's next claim is that § 53a-179b is unconstitutionally overbroad. We disagree.

The doctrines of vagueness and overbreadth are so closely related that "[s]ometimes the two are functionally indistinguishable." Note, "The First Amendment Overbreadth Doctrine," 83 Harv.L.Rev. 844, 845 n. 5 (1970). The essence of an overbreadth challenge is that a statute that proscribes certain conduct, even though it may have some permissible applications, sweeps within its proscription conduct protected by the first amendment. Secretary of State v. J.H. Munson Co., 467 U.S. 947, 968, 104 S.Ct. 2839, 2853, 81 L.Ed.2d 786 (1984); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798-801, 104 S.Ct. 2118, 2125-2126, 80 L.Ed.2d 772 (1984); Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 587, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S.Ct. 43, 93 L.Ed.2d 6 (1986). Overbroad statutes, like vague ones, inhibit the exercise of constitutionally protected conduct. Husti v. Zuckerman Property Enterprises, Ltd., supra. A party has standing to raise an overbreadth claim, however, "only if 'there [is] a realistic danger that the statute will significantly compromise recognized First Amendment protections of parties not before the Court....' Members of the City Council of Los Angeles v. Taxpayers for Vincent, supra, 466 U.S. at 801, 104 S.Ct. at 2126...." Id.; see also Broadrick v. Oklahoma, 413 U.S. 601, 613-15, 93 S.Ct 2908, 2916-17, 37 L.Ed.2d 830 (1973). A single impermissible application of a statute, however, will not be sufficient to invalidate the statute on its face; rather, to be invalid, a statute must reach " 'a substantial amount of constitutionally protected conduct.' " State v. Williams, 205 Conn. 456, 472, 534 A.2d 230 (1987).

In this case, the statute is not...