State v. Silva

• Decision Date: 31 January 2006
• Docket Number: No. 25517.,25517.
• Citation: 889 A.2d 834,93 Conn.App. 349
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Madalena SILVA.

889 A.2d 834

93 Conn.App. 349

STATE of Connecticut v.Madalena SILVA.

No. 25517.

Appellate Court of Connecticut.

Argued May 5, 2005.

Decided January 31, 2006.

Norman A. Pattis, Bethany, with whom, on the brief, were John R. Williams, New Haven, and Kim Coleman Waisonovitz, Bethany, for the appellant(defendant).

Ronald G. Weller, Rocky Hill, with whom, on the brief, were Jonathan Benedict, state's attorney, and Craig Nowalk, assistant state's attorney, for the appellee(state).

DRANGINIS, HARPER and McDONALD, Js.

MCDONALD, J.

The defendant, Madalena Silva, appeals from the judgment of conviction, rendered after a jury trial, of two counts of interfering with an officer in violation of General Statutes § 53a-167a.¹On appeal, she claims that the state did not present sufficient evidence to support her conviction and the trial court improperly instructed the jury as to consciousness of guilt.

The state charged the defendant in an amended information with two counts of interfering with a police officer and two counts of breach of the peace.The first count of interference with a police officer charged that the defendant did so "by saying to [the officer] when requested to produce [her] license, registration and insurance information during a motor vehicle stop, `F___k you.I ain't giving you s___t, asshole . . . .'"The second count charged the defendant with interfering with an officer "by running from [the officer] and fleeing on foot across North Avenue and entering the driver's side of an unidentified green vehicle which left the scene at a high rate of speed, after being instructed by [the officer] not to leave the scene. . . ."

A jury found the defendant guilty of the two counts of interfering with an officer in violation of § 53a-167a.The defendant was acquitted of one of the breach of the peace charges.²This appeal followed.

We first set forth our standard of review."In reviewing a sufficiency of the evidence claim, we apply a two-part test.First, we construe the evidence in the light most favorable to sustaining the verdict.Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [fact finder] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt."(Internal quotation marks omitted.)State v. Robert H.,273 Conn. 56, 64, 866 A.2d 1255(2005).³

The following evidence was presented at trial.At about 5 p.m. on June 22, 2003, the defendant's brother was involved in an automobile collision on North Avenue in Bridgeport.All three vehicles involved in the collision had to be towed from the scene because of major damage, and the defendant's brother complained of neck and back pain.Officers Jason Ferri and Todd Sherback of the Bridgeport police department, who were on routine motor patrol, went to the accident scene to help the investigating officer, Officer Mark Gudauskas, complete necessary paperwork.To avoid obstructing the heavy rush hour traffic, Ferri and Sherback parked their police cruiser in a nearby private parking lot.

As the defendant drove by the scene, Ferri and Sherback observed her stop abruptly on the street, back up, execute a three point turn and back quickly into the parking lot where they had parked their police cruiser, nearly causing a collision.They also saw that her vehicle did not have a required front license plate.The officers told the defendant that they were going to issue an infraction ticket for unsafe backing and no front license plate.At that time, the officers asked the defendant for her driver's license, automobile registration and insurance card.She asked to be let alone.To the officers' second request, she replied, "You Bridgeport cops are all the f___king same.To protect and serve?Yeah right, my ass."When the officers repeated their request, she stated, "F___k you.I ain't giving you s___t, asshole.I'm taking my brother to the hospital, and you are not f___king stopping me."She was loud and belligerent, stamping her foot, and a crowd of twenty-five to thirty people gathered.At that time, the officers did not issue the infraction ticket because the defendant became very loud and angry when asked for her registration.At some unknown time, however, the officers did issue an infraction ticket.

Ferri and Sherback decided to arrest the defendant for breach of the peace and interfering with an officer after her belligerent responses to their requests.The defendant's mother, who was present with the defendant's father, began to interfere with the officers' investigation by stating that her daughter had done nothing wrong.Because of this, the defendant was not arrested.At that time, as the officers tried to talk to the defendant's mother, the defendant immediately ran into the street entered a vehicle and drove away, leaving her automobile in the parking lot.Ferri had told the defendant not to leave the scene and then asked the defendant's mother to use her cellular telephone to call the defendant.The defendant's mother explained to the officer that the defendant was bringing her brother to a hospital.After speaking with the defendant, her mother told the officers that the defendant would return after she went to the hospital.

The officers waited for one-half hour and conferred with their supervisor, Sergeant Stephen Lougal, whom they called to explain that they intended to arrest the defendant.They also wanted Lougal to speak to the defendant's mother about the mother's complaint that her son had not received medical assistance.The officers then went to the nearer of the two hospitals in Bridgeport.They located the defendant at the emergency room and arrested her for breach of the peace and interfering with an officer.⁴When the officers approached her, the defendant stated to them, "Not you assholes again," and told her friend the officers were coming for her.

Our Supreme Court has held that a person is guilty of "interfering" with an officer when he interferes with a police officer in the performance of his duties, and the statute encompasses only interference that is intentional.State v. Williams,205 Conn. 456, 473-74, 534 A.2d 230(1987).In Williams, our Supreme Court, "[t]o avoid the risk of constitutional infirmity," also construed "53a-167a to proscribe only physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace."(Internal quotation marks omitted.)Id., at 473, 534 A.2d 230, citingChaplinsky v. New Hampshire,315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031(1942).

The defendant claims that there was insufficient evidence to support her conviction for obstructing or hindering an officer.⁵She argues that the conduct alleged in the first count of the information does not constitute interfering with an officer in violation of § 53a-167a.

In Williams, our Supreme Court limited§ 53-167a to physical conduct and "fighting words."Justice Powell, concurring in Lewis v. New Orleans,415 U.S. 130, 135, 94 S.Ct. 970, 39 L.Ed.2d 214(1974), stated that words may or may not be fighting words depending on the circumstances.In Lewis, when the police asked for her husband's motor vehicle documents, the defendant loudly called them "m.f[s]."Id., at 131 n. 1, 94 S.Ct. 970.Justice Powell, whose view of language as obstructing police officers was followed in Houston v. Hill,482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398(1987), noted the objectionable words would not likely have precipitated a physical confrontation between a middle aged woman and the police.Id., at 135, 94 S.Ct. 970(Powell, J., concurring).The evidence in this case was that the defendant was a young female college student addressing two trained police officers.The defendant's use of the "f" word and an objectionable insult would be equally unlikely to provoke a violent reaction from the officers, who are expected to exercise a higher degree of restraint than the average citizen.Sherback testified that Bridgeport officers are trained to handle verbal insults and not to punch someone who swears at them.We conclude that there were no fighting words.

In order for this court to sustain a conviction for hindering an officer, in this case, the state has to have produced evidence that the defendant, by her actions, intentionally hindered the officer.The failure to turn over the requested documents alone could not support a conviction for hindering the officers because the legislature penalized that conduct itself as an infraction under General Statutes § 14-217.SeeState v. Aloi,86 Conn.App. 363, 370-71, 861 A.2d 1180(2004), cert. granted, 273 Conn. 901, 867 A.2d 840(2005).

All of the cases that we have found that uphold a conviction for intentionally interfering with an officer deal either with physical assaults or struggles with officers or with attempts to escape from apprehension or discovery at a crime scene or to destroy evidence of guilt of a crime.See, e.g., State v. Williams,supra, 205 Conn. at 468-69, 534 A.2d 230;State v. Simmons,86 Conn.App. 381, 388, 861 A.2d 537(2004), cert. denied, 273 Conn. 923, 871 A.2d 1033, cert. denied, ___ U.S. ___, 126 S.Ct. 356, 163 L.Ed.2d 64(2005);State v. Hampton,66 Conn.App. 357, 360-61, 784 A.2d 444, cert. denied, 259 Conn. 901, 789 A.2d 992(2001);In re Adalberto S.,27 Conn.App. 49, 55-56, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328(1992);State v. Weber,6 Conn.App. 407, 416-17, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771(1986);State v. Biller,5 Conn.App. 616, 621, 501 A.2d 1218(1985), cert. denied, 199 Conn. 803, 506 A.2d 146, cert. denied, 478 U.S. 1005, 106 S.Ct. 3296, 92 L.Ed.2d 711(1986).

The state, citing State v. Biller,supra, 5 Conn.App. at 619-21, 501 A.2d 1218, claims that delaying the police in issuing the infraction ticket is sufficient to support a conviction for...