State v. Szymkiewicz

• Decision Date: 09 July 1996
• Docket Number: No. 15253,15253
• Citation: 237 Conn. 613,678 A.2d 473
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Deborah SZYMKIEWICZ

Page 473

678 A.2d 473

237 Conn. 613

STATE of Connecticut v. Deborah SZYMKIEWICZ

No. 15253.

Supreme Court of Connecticut.

Argued March 21, 1996.

Decided July 9, 1996.

Mitchell S. Brody, Assistant State's Attorney, with whom, on the brief, were Kevin T. Kane, State's Attorney, and Theresa Ferryman, Deputy Assistant State's Attorney, for appellant (State).

Scott M. Jones, Deputy Assistant Public Defender, for appellee (defendant).

Before CALLAHAN, BORDEN, BERDON, NORCOTT and KATZ, JJ.

CALLAHAN, Justice.

The defendant, Deborah Szymkiewicz, was convicted after a jury trial of breach of the peace in violation of General Statutes § 53a-181(a)(1). ¹ The defendant appealed to the Appellate Court, which reversed her conviction. State v. Szymkiewicz, 36 Conn.App. 625, 652 A.2d 523 (1995). In construing § 53a-181(a)(1) to proscribe only physical conduct, ² the Appellate Court concluded that there was insufficient evidence to establish a violation of § 53a-181(a)(1) because the conduct for which the defendant was prosecuted consisted only of speech. Id., at 629, 652 A.2d 523. We granted the state's petition for certification to appeal limited to the following issues: (1) "Under the circumstances of this case, did the Appellate Court properly conclude that General Statutes § 53a-181(a)(1) does not include speech that constitutes 'fighting words'?" and (2) "If the answer to question (1) is 'no,' was the evidence sufficient for conviction of a violation of that statute?" State v. Szymkiewicz, 233 Conn. 903, 657 A.2d 644 (1995). We reverse the judgment of the Appellate Court.

The Appellate Court deemed the following facts relevant. "The genesis of this case was the defendant's shopping trip to the Waterford Stop & Shop Supermarket [on November 24, 1991]. At the checkout counter, Kim Montigny, a store detective, asked the defendant to accompany her to the store manager's office on the mezzanine. Once there, Montigny accused the defendant of shoplifting two bags of seafood and a container of cocktail sauce. While in the manager's office, the defendant became loud and abusive, resulting in a call to the police.

"Waterford police officer Mark Willard responded and, after [conducting a brief investigation and] observing the defendant's behavior, arrested her for shoplifting [in violation of General Statutes § 53a-125b ³].... He handcuffed the defendant, and he and Montigny led the defendant down the stairs [which ended at the middle of the register line of a nearby checkout counter,] and out of the store.

"When asked to cooperate and quiet down, [while being detained in the manager's office and later while being led out of the store,] the defendant responded, 'Fuck you,' several times ⁴....

"[In addition, w]hile being led down the stairs from the manager's office, the defendant addressed Montigny, saying, 'You fucking bitch. I hope you burn in hell for all eternity.' ⁵

"Montigny also testified that while they were descending the stairs the defendant made a threatening remark to her. The record does not disclose the nature of the threat." State v. Szymkiewicz, supra, 36 Conn.App. at 626-27, 652 A.2d 523. Montigny further stated that the defendant's comments and behavior while descending the stairs drew the attention of the other store customers and caused a commotion among those who were present at the bottom of the stairs.

While descending the stairs and in the view of the store customers, Willard told the defendant that if she refused to calm down, she would also be charged with breach of the peace. To this, the defendant responded, "Fuck you." The defendant was thereafter charged with breach of the peace.

Following the trial, the jury returned a verdict of guilty of breach of the peace in violation of § 53a-181(a)(1). The trial court sentenced the defendant to six months imprisonment, execution suspended after thirty days, and imposed a $500 fine. ⁶

The defendant appealed to the Appellate Court, claiming that the evidence was insufficient to support her conviction of breach of the peace. Specifically, the defendant maintained that her conduct consisted solely of speech and, therefore, was not within the ambit of subdivision (1) of § 53a-181(a), which, according to the defendant, proscribes physical conduct only. Id., 627. The Appellate Court agreed with the defendant that there was insufficient evidence of "physical conduct" to sustain her conviction of § 53a-181(a)(1) and reversed the trial court's judgment.

Relying on State v. Indrisano, 228 Conn. 795, 640 A.2d 986 (1994), and State v. Lo Sacco, 12 Conn.App. 481, 531 A.2d 184, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987), the Appellate Court concluded that proof of physically violent conduct is required before criminal liability can be imposed pursuant to subdivision (1) of § 53a-181(a). Because it determined from the testimony at trial that the defendant's actions consisted only of words, unaccompanied by physically violent conduct, the court concluded that there was insufficient evidence to support her conviction. State v. Szymkiewicz, supra, 36 Conn.App. at 627-30, 652 A.2d 523. ⁷ This certified appeal followed.

Section 53a-181(a) provides in relevant part that "[a] person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he [or she]: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place...." The state contends, contrary to the conclusion of the Appellate Court, that § 53a-181(a)(1) proscribes speech as well as conduct, provided that the speech rises to the level of "fighting words," as defined in the first amendment context, at least when the words used portend imminent physical violence, as the state claims they did here. The state argues, consequently, that the defendant's words and the circumstances under which they were used were sufficient to support her conviction. ⁸

In order to determine whether § 53a-181(a)(1) proscribes speech that can be characterized as "fighting words," we look for guidance to the construction given by this court to identical language contained in General Statutes § 53a-182, the disorderly conduct statute. In State v. Indrisano, supra, 228 Conn. at 795, 640 A.2d 986, we were called upon to interpret the parallel provision of § 53a-182(a)(1). ⁹ The elements of the two statutes are identical, except that § 53a-181(a)(1), the breach of the peace statute, concerns behavior in a public place. In construing subdivision (1) of § 53a-182(a), we stated that "[t]he term 'fighting,' by its plain meaning, involves physical force. The phrase 'violent, tumultuous or threatening behavior' also refers to physical action. If two or more words are grouped together, it is possible to ascertain the meaning of a particular word by reference to its relationship with other associated words and phrases under the doctrine of noscitur a sociis. 2A J. Sutherland, Statutory Construction (5th Ed. Sands 1992) § 47-16; State v. Roque, [190 Conn. 143, 152, 460 A.2d 26 (1983) ]. Applying this doctrine, the Appellate Court, in State v. Lo Sacco, supra, [12 Conn.App. at 481, 531 A.2d 184,] construed 'violent, tumultuous or threatening behavior'; General Statutes § 53a-181a(a); ¹⁰ to mean 'conduct which actually involves physical violence or portends imminent physical violence.' Id., at 491, 531 A.2d 184. Similarly, in State v. Duhan, 38 Conn.Sup. 665, 668, 460 A.2d 496 (1982), rev'd on other grounds, 194 Conn. 347, 481 A.2d 48 (1984), the Appellate Session of the Superior Court read the term 'tumultuous' in connection with its surrounding words, 'violent' and 'threatening,' and held that, because its meaning should be ascertained by reference to those associated words, 'yelling and cursing unaccompanied by violent behavior is not prohibited by' § 53a-182(a)(1). ¹¹ In accordance with these decisions, we conclude that the terms 'fighting' and 'violent' lend an aspect of physicality to the more nebulous terms 'tumultuous' and 'threatening.' Thus, we conclude that subdivision (1) of § 53a-182(a) prohibits physical fighting, and physically violent, threatening or tumultuous behavior." (Emphasis added.) State v. Indrisano, supra, 228 Conn. at 811-12, 640 A.2d 986.

We further noted, however, that "[t]his conclusion is consistent with the 'fighting words' limitation that must be applied when the conduct sought to be proscribed consists purely of speech. Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 770, 86 L.Ed. 1031 (1942); State v. Anonymous (1978-4), 34 Conn.Sup. 689, 695, 389 A.2d 1270 (1978). The Chaplinsky doctrine permits the state to prohibit speech that has a direct tendency to inflict injury or to cause acts of violence or a breach of the peace by the persons to whom it is directed. See Statewide Grievance Committee v. Presnick, 18 Conn.App. 316, 559 A.2d 220 (1989)." (Emphasis added.) State v. Indrisano, supra, 228 Conn. at 812, 640 A.2d 986.

In noting that our holding was consistent with Chaplinsky, we recognized that § 53a-182(a)(1) could constitutionally proscribe speech that, under a given set of circumstances, could fairly be characterized as fighting words that portend imminent physical violence. Moreover, we recognized that fighting words, because they do portend imminent physical violence or are likely to prompt imminent physical retaliation, have a sufficient aspect of physicality such that they can constitute a violation of § 53a-182(a)(1). Id. Accordingly, a fair reading of Indrisano, indicates that speech can be proscribed not only when accompanied by actual physical conduct, but also when it can be identified as fighting words that portend physical violence.

Consequently, we conclude that § 53a-181(a)(1) does not require proof of actual physical contact on the part of the defendant with a victim as in fact occurred in Indrisano, but rather that, when applied to speech, the parameters of the...