State v. Ryan

• Decision Date: 28 April 1998
• Docket Number: No. 15840,15840
• Citation: 48 Conn.App. 148,709 A.2d 21
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Leonora RYAN.

Page 21

709 A.2d 21

48 Conn.App. 148

STATE of Connecticut v. Leonora RYAN.

No. 15840.

Appellate Court of Connecticut.

Argued Nov. 7, 1997.

Decided March 17, 1998.

Certification Denied April 28, 1998. ^*

Norman A. Pattis, Special Public Defender, with whom, on the brief, was John R. Williams, Special Public Defender, for appellant (defendant).

Mitchell S. Brody, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and David P. Gold, Supervisory Assistant State's Attorney, for appellee (State).

Before LANDAU, SPEAR and DALY, JJ.

SPEAR, Judge.

The defendant, Leonora Ryan, appeals from the judgment of conviction, rendered after a jury trial, of inciting injury to persons in violation of General Statutes § 53a-179a. ¹ The defendant claims that (1) § 53a-179a is both vague on its face in violation of the due process clause of the fourteenth amendment to the United States constitution and overbroad in violation of the first amendment to the United States constitution and (2) the trial court abused its discretion by improperly refusing to admit into evidence a police informant's criminal history. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1984, the defendant married Ronald Rubin. The couple had twins in 1986 and divorced in 1990. The defendant was awarded physical custody of the twins and Rubin received visitation privileges. In the fall of 1990, the defendant remarried and moved with the twins and her new husband to Hamden. During 1991, Rubin lived in Waterbury with a roommate, Ray Sturm. In October, 1991, Rubin signed an agreement whereby his children would not visit him at his Waterbury apartment because of suspicions that Sturm had sexually abused one of the twins.

Approximately six months prior to her arrest, the defendant confided in her friend, Mary M. Gleason, her belief that Rubin was responsible for the sexual abuse of the twins. The defendant also told Gleason that she disliked Rubin and would have him killed if only she knew a "hit man." The defendant also expressed her frustration that the police were not taking her complaints seriously. At the time, Gleason was living with Edward Marco, a police informant who had a lengthy criminal record.

On December 21, 1992, Marco furnished information to Officer Mark Ciarciello of the Branford police department that resulted in an investigation, with Ciarciello posing as a hit man. After supplying Ciarciello with the defendant's telephone number, Marco was instructed to inform the defendant that she would be contacted by Ciarciello. On December 22, 1992, Ciarciello visited the defendant's home and received an envelope from her that contained $100. The defendant confided in Ciarciello that she had repeatedly attempted to oust Rubin from her and her children's lives through legal channels, but had been unsuccessful. The defendant also confided to Ciarciello her belief that Rubin's roommate had sexually abused her son, and that Rubin was "torturing" the twins and "messing up their heads." The defendant stated that she could not "handle it anymore" and "wanted [Rubin] gone, probably after the holidays." When Ciarciello indicated that he would need an advance on his $1000 fee, the defendant responded that Marco was planning to lend her money toward the payment of Ciarciello's fee. The defendant then confirmed specific information regarding Rubin, including his home and work addresses, home telephone number, physical appearance, work schedule, and the make, color and partial license plate number of his car.

On December 30, 1993, Ciarciello again visited the defendant's home and received additional money toward the payment of his fee. The defendant then indicated that she wanted the "hit" to look like an "accident" or "a drug deal gone bad." She did not want the defendant to "disappear" because she wanted her children, the beneficiaries of Rubin's life insurance policy, to receive the life insurance proceeds immediately.

The jury found the defendant guilty on the count of inciting injury to persons and property, but acquitted her of the count of attempted murder in violation of §§ 53a-8, 53a-49a (2) and 53a-54a. This appeal followed. ²

I

A

The defendant first claims that General Statutes § 53a-179a is vague on its face, in violation of the fourteenth amendment to the federal constitution. ³ Specifically, the defendant asserts that the language in § 53a-179a that makes it a felony when one "advocates, encourages, justifies, praises, incites or solicits ... the killing or injuring of any class or body of persons, or of any individual" is vague on its face because it "lacks a common core meaning" and sweeps so broadly that it includes speech that is protected by the first amendment to the United States constitution. ⁴ We affirm the judgment of the trial court.

The defendant contends that the language of § 53a-179a is unconstitutionally vague because it allows a person to be prosecuted for a mere expression of opinion without any criminal intent or criminal act. By way of example, she posits that persons who simply are in favor of the death penalty could be prosecuted under the "praises" and "justifies" language in the statute, notwithstanding the absence of any intent to incite or cause harm. The defendant maintains that this interpretation of § 53a-179a would proscribe constitutionally protected speech and, therefore, render the statute unconstitutionally vague on its face. We disagree because judicial gloss makes it clear that the statute requires an intent to cause injury in addition to the proscribed language.

Preliminarily, we restate certain principles, enunciated by our Supreme Court, that guide our analysis. Pursuant to our federal and state constitutions, due process of law requires that a penal statute be sufficiently definite to warn a person of conduct that must be avoided. Where the terms of a statute are "so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application," an essential aspect of due process of law is violated. State v. Dyson, 238 Conn. 784, 796, 680 A.2d 1306 (1996). A vague and indefinite rule or standard is no rule or standard at all. Seals v. Hickey, 186 Conn. 337, 342, 441 A.2d 604 (1982). To prevail on a facial vagueness challenge, the defendant must show that the statute has no core meaning. If at least one application is not vague, the challenge cannot succeed. Additionally, the defendant's burden is made more difficult by the strong presumption favoring the constitutionality of statutes. State v. Dyson, supra, at 797, 680 A.2d 1306; see also State v. Indrisano, 228 Conn. 795, 804, 640 A.2d 986 (1994).

Vague laws endanger first amendment rights because they may cause citizens to avoid constitutionally protected conduct for fear of incurring criminal prosecution. Where a statute is attacked as void for vagueness, and no first amendment rights are implicated, the constitutionality of the statute is determined by its applicability to the particular facts at issue. Because of the chilling effect that vague statutes can have on first amendment rights, a defendant may mount a vagueness challenge to the validity of a statute in marginal, hypothetical situations even though the defendant's own conduct clearly falls within the statute's proscriptions. State v. Proto, 203 Conn. 682, 696-97, 526 A.2d 1297 (1987).

Our Supreme Court has recognized that vague statutes fail to give fair warning to persons who may be affected as to what conduct is prohibited. A statute should be reasonably specific and direct so that a person of ordinary intelligence has a reasonable opportunity to govern his or her behavior by reference to the words of the statute together with judicial gloss. "Lack of precision, however, is not, in or of itself, offensive to the requirement of due process." Seals v. Hickey, supra, 186 Conn. at 344, 441 A.2d 604. "Ambiguity is, unfortunately, a common statutory ailment. A degree of vagueness is endemic in many statutes.... If the meaning of a statute can fairly be ascertained through judicial construction, however, it need not be stricken for vagueness.... [A]uthoritative constructions sufficiently illuminating the contours of an otherwise vague prohibition may be used to remedy the chilling effect of vague statutory language in areas affecting first amendment rights....

"The meaning of unclear statutes affecting first amendment rights may be divined through recognized methods of statutory construction. 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." (Citations omitted; internal quotation marks omitted.) State v. Proto, supra, 203 Conn. at 698-99, 526 A.2d 1297.

In seeking to determine whether § 53a-179a gives fair warning as to what conduct is criminal under the statute, we are persuaded by the well reasoned analysis in State v. Leary, 41 Conn.Supp. 525, 590 A.2d 494 (1989), rejecting a vagueness and overbreadth challenge to the constitutionality of § 53a-179a. The Leary court read into the statute "an implicit requirement that the accused intend to cause injury.... Each of the words that the legislature chose to include in the statute clearly connotes the volitional component to accomplish a specific result." Id., at 530, 590 A.2d 494.

We recognize, as did the Leary court, the fundamental principle of statutory construction that penal statutes must be construed strictly in favor of the accused. State v. Whiteman, 204 Conn. 98, 101, 526 A.2d 869 (1987). Notwithstanding that rule of construction, we are also guided by two oft stated principles. "The party attacking a validly enacted statute ... bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every...