State v. Schriver, 13245

• Decision Date: 17 May 1988
• Docket Number: No. 13245,13245
• Citation: 207 Conn. 456,542 A.2d 686
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Dale SCHRIVER.

Page 686

542 A.2d 686

207 Conn. 456

STATE of Connecticut v. Dale SCHRIVER.

No. 13245.

Supreme Court of Connecticut.

Argued April 7, 1988.

Decided May 17, 1988.

Jon C. Blue, Asst. Public Defender, with whom, on the brief, were Joette Katz, Public Defender, and Michael L. Moscowitz, Deputy Asst. Public Defender, for appellant (defendant).

Timothy J. Sugrue, Deputy Asst. State's Atty., with whom, on the brief, were Carolyn K. Longstreth and Corinne Klatt, Deputy Asst. State's Attys., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

PETERS, Chief Justice.

The dispositive issue in this appeal is whether the Connecticut statute prohibiting risk of injury to a minor is, in the circumstances of this case, unconstitutionally vague. After a jury trial, the defendant, Dale Schriver, was found guilty of one count of risk of injury to a minor in violation of General Statutes § 53-21. ¹ He appeals from the ensuing sentence of seven years imprisonment. ² We find error and remand with direction to vacate the judgment of conviction.

The jury could reasonably have found the following facts: In the early morning of September 6, 1986, the victim, Stacy, then thirteen years old, was delivering newspapers on foot in a residential neighborhood of Waterbury. Shortly into her route, she noticed a "strange man" following her. Sensing possible danger, she waited on the porch of a house for about a minute before resuming her deliveries. She was then approached by the man, who asked, "Do you have an extra paper?" Stacy said, "No." The man then grabbed Stacy around the waist and said, "Don't worry, all I want to do is feel you." Stacy screamed in fright and the man fled. A neighbor awakened by the screams went outside to find the victim shaking and hyperventilating. At trial, Stacy identified the defendant as the man who had frightened her.

The state charged the defendant with one count of risk of injury to a minor in violation of § 53-21. Specifically, the state alleged in a bill of particulars that the defendant had committed "an act likely to impair the health or morals of the victim." After the state rested its case-in-chief, the defendant moved for an acquittal on the ground of insufficient evidence. The motion was denied and the defendant excepted. The defendant then called an alibi witness who testified that he had seen the defendant some distance from the scene of the crime only a brief time before Stacy was accosted. Relying on this alibi testimony, the defendant renewed his motion for an acquittal. The court again denied it and the defendant again excepted.

On appeal, the defendant claims that his conviction violates due process because the controlling penal statute, as applied to the facts of this case, is unconstitutionally vague. ³ We agree.

I

Before reaching the merits of this appeal, we must first consider the threshold question of reviewability. The state maintains that the void for vagueness claim is not reviewable because it was not distinctly raised at trial. We conclude that, despite this procedural default, a claim of unconstitutional vagueness falls within the parameters of State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), and therefore warrants appellate scrutiny, because it implicates the fundamental due process right to fair warning and the record is adequate to facilitate review. State v. McKenna, 11 Conn.App. 122, 125, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987); see generally State v. Robinson, 204 Conn. 207, 210 n. 4, 527 A.2d 694 (1987). Contrary to the state's position, our decision in McLaughlin v. Bronson, 206 Conn. 267, 537 A.2d 1004 (1988), does not foreclose Evans review in this case. In McLaughlin, a habeas petitioner challenged on vagueness grounds the statute under which his commutation had been revoked. We declined to review this claim because the petitioner had failed to provide us with transcripts of the habeas corpus proceedings and because we had already determined, in a prior section of our decision, that the statute clearly authorized the board of pardons' revocation, hence draining the vagueness claim of its purported merit. Id., at 275-76, 537 A.2d 1004. Because McLaughlin is thus clearly distinguishable from this case, we turn to the merits of the vagueness challenge.

II

The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1246-47, 39 L.Ed.2d 605 (1974); Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975). The fair warning principle has firm roots in federal constitutional law. Connally v. General Construction Co., 269 U.S. 385, 391, 127, 46 S.Ct. 126, 70 L.Ed. 322 (1926); State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980). The United States Supreme Court recently emphasized, however, that "the more important aspect of the vagueness doctrine 'is not actual notice, but ... the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983); see also United States v. Reese, 92 U.S. (2 Otto.) 214, 221, 23 L.Ed. 563 (1876). "A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972).

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). Under appropriate circumstances, the presence of a specific intent element in the offense may purge a potentially vague criminal statute of constitutional infirmity. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952); United States v. Mussry, 726 F.2d 1448, 1455 (9th Cir.1984) State v. Cavallo, 200 Conn. 664, 668-72, 513 A.2d 646 (1986). Furthermore, a facially vague law may nonetheless comport with due process if prior judicial decisions have provided the necessary fair warning and ascertainable enforcement standards. Bishop v. Kelly, 206 Conn. 608, 613, 539 A.2d 108 (1988). For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987).

In the circumstances of this case, the defendant alleges that the language of § 53-21 does not meet the accepted standards of the void for vagueness doctrine. The statute, written in the disjunctive, provides that "[a]ny person who ... does any act likely to impair the health or morals of any [minor] child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both." (Emphasis added.) The bill of particulars accused the defendant of committing a prohibited act under either the "health" or the "morals" clause of § 53-21, and the trial court charged the jury accordingly. The jury returned a general verdict of guilty as charged. Our review for vagueness must therefore address each statutory alternative individually. We nevertheless pause at the outset to take account of the general features of § 53-21.

On its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of the defendant in this case is permitted or prohibited. "[A]ny act" may violate the statute so long as it is "likely to impair" a minor's health or morals. Standing alone, the phrase "any act" provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case. State v. McClary, 207 Conn. 233, 239-40, 541 A.2d 96 (1988); State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). Nor is the focus of the statute measurably narrowed by the phrase "likely to impair." In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral predelictions and personal predictions of likely harm. Similar statutes have been found violative of due process in other jurisdictions. E.g., Morrison v. State Board of Education, 1 Cal.3d 214, 220-36, 461 P.2d 375, 82 Cal.Rptr. 175 (1969) (a statute authorizing the revocation of teaching certificates for "immoral conduct"); State v. Vallery, 212 La. 1095, 1098-99, 34 So.2d 329 (1948) (a statute that criminalized the act of enticing or permitting a minor to perform an "immoral" act); Ex parte Jackson, 45 Ark. 158, 164 (1885) (a statute making it a misdemeanor to "commit any act injurious to the public health or public morals ..."). In like fashion, § 53-21 fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. The "absence of any ascertainable standard for inclusion and exclusion is precisely what offends the Due Process Clause." Smith v. Goguen, supra, 415 U.S. 578, 94 S.Ct. at 1249. Clearly, the constitutionality of § 53-21 depends upon a determination of the extent to which...