State v. White

• Decision Date: 14 July 1987
• Docket Number: No. 12749,12749
• Citation: 528 A.2d 811,204 Conn. 410
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Gordon L. WHITE.

Page 811

528 A.2d 811

204 Conn. 410

STATE of Connecticut v. Gordon L. WHITE.

No. 12749.

Supreme Court of Connecticut.

Argued Feb. 3, 1987.

Decided July 14, 1987.

Michael J. Whelton, East Hartford, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom were James G. Clark, Asst. State's Atty., David Shepack and Christopher Morano, Deputy Asst. State's Attys., and, on brief, John M. Bailey, State's Atty., and Thomas Hrusha and Mitchell Goldklang, Legal Interns, for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SANTANIELLO, DUPONT and HADDEN, JJ. SANTANIELLO, Associate Justice.

The defendant, Gordon L. White, was charged in a substitute information with three counts of criminally negligent homicide in violation of General Statutes §§ 53a-58 and 53a-3 (14), and with three counts of failing to provide a smoke detector in violation of Connecticut state fire safety code §§ 11-1.8.1 and 11-3.3.3.1, and General Statutes §§ 29-292 and 29-295. After a jury trial, the defendant was found guilty on all six counts and was sentenced to a total effective term of one year, execution suspended, with three years probation and fined $4500.

On appeal, the defendant raises six claims of error, which can be fairly summarized as follows: (1) that the state fire safety code and statutes charging him with failing to provide smoke detectors are unconstitutionally vague; (2) that the state fire safety code provisions exceed the scope of authority conferred by the code's enabling statute; and (3) that the failure to install smoke detectors cannot provide a sufficient basis for a conviction of criminally negligent homicide. We find error.

The jury reasonably could have found the following facts: The defendant owned a three family residential building located at 1387 Corbin Avenue in New Britain. On December 25, 1982, at approximately 5:30 a.m., Edward Ross, an occupant of the first floor apartment, awoke to find smoke filtering into his apartment. After waking up his wife, their child, and his brother-in-law, and escorting them outside, Ross summoned the New Britain fire department. The fire department arrived at the scene almost immediately and began battling a fire which had broken out on the second floor. Several firefighters entered the second floor apartment, which was full of smoke, and discovered the bodies of Maryann Jones and her two young children, Lindsay and Brandy, the occupants of that apartment, lying dead on the floor. The medical examiner concluded that all three had died from asphyxia caused by smoke inhalation.

It was estimated that the fire, apparently caused by an electrical overload from a wall outlet into which a quartz heater had been plugged, began smoldering at approximately 2:30 a.m., but did not break out in the apartment until about 5:30 a.m. As a result of the slow burning nature of the fire, the apartment was covered with soot and was filled with thick smoke. There were no smoke detectors in the building.

At trial, the state introduced evidence regarding how a smoke detector works, the cost of a smoke detector, how it is installed, and its effectiveness. Additionally, testimony was introduced that had smoke detectors been installed in the defendant's building, the occupants would have been alerted to the fire in sufficient time to enable them to escape.

Evidence was also introduced that the defendant owned another multifamily apartment building located in East Hartford. In May, 1982, the defendant received notice from the East Hartford fire marshal informing him that he was required to furnish smoke detectors in his East Hartford building. The defendant installed smoke detectors in the East Hartford building, but he did not install smoke detectors in his New Britain building. Additionally, prior to December, 1982, the defendant undertook renovations on the New Britain property but did not obtain building permits for the work he performed.

At the conclusion of the state's case, the defendant moved for a judgment of acquittal claiming that: (1) the state had failed to prove that the defendant, by not installing smoke detectors, had acted with criminal negligence or had proximately caused the deaths of the victims; and (2) the state had failed to prove that the defendant had violated Connecticut fire safety code §§ 11-1.8.1 and 11-3.3.3.1 and General Statutes §§ 29-292 and 29-295 because the state did not establish that a building permit had been issued on or after October 1, 1976, for the building in question. The defendant also argued that the fire safety code was inconsistent with its enabling statute in contravention of General Statutes § 29-293. The court denied the defendant's motion. Subsequently, after judgment was rendered, the defendant filed a motion in arrest of judgment and a motion for judgment of acquittal, both of which were denied.

I

Initially, the defendant contends that his convictions for failing to provide smoke detectors must be set aside because the state fire safety code provisions and applicable statutes are unconstitutionally vague, in violation of the fourteenth amendment to the United States Constitution and article first, § 8, of the Connecticut constitution. ¹ Specifically, the defendant claims that § 11-1.8.1 ² of the Connecticut state fire safety code fails to provide sufficient notice of the conduct required for providing and installing a smoke detector, and that General Statutes § 29-296 ³ allows for arbitrary and discriminatory enforcement of the code by the fire marshal.

Due process demands that a statute be sufficiently definite and precise to enable a person to know what is permitted and what is prohibited. See, e.g., State v. Bunkley, 202 Conn. 629, 642, 522 A.2d 795 (1987); Gunther v. Dubno, 195 Conn. 284, 297, 487 A.2d 1080 (1985); State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980). " 'That the terms of a penal statute ... must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law....' " State v. Pickering, supra, at 60, 428 A.2d 322, quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L. Ed. 322 (1926). "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. General Construction Co., supra; see State v. Cavallo, 200 Conn. 664, 667, 513 A.2d 646 (1986); State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984); Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975). Thus, "[l]aws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Also, if arbitrary and discriminatory enforcement is to be prevented, laws must provide adequately delineated standards for those who apply them." Mitchell v. King, supra, at 143, 363 A.2d 68; see Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972).

It is not necessary, however, that a statute list the precise conduct prohibited or required. State v. Eason, supra, 192 Conn. at 47, 470 A.2d 688. It is recognized that the law may be general in nature; the constitution requires no more than a reasonableness of certainty. Id.; State v. Chetcuti, 173 Conn. 165, 167, 377 A.2d 263 (1977). " 'The test is whether the language conveys sufficiently definite warning as to the proscribed [or required] conduct when measured by common understanding and practices.' Jordan v. DeGeorge, 341 U.S. 223, 231-32, 71 S.Ct. 703, [707-08], 95 L.Ed. 886 [reh. denied, 341 U.S. 956, 71 S.Ct. 1011, 95 L.Ed. 1377 (1951) ]." State v. Chetcuti, supra, 173 Conn. at 167-68, 377 A.2d 263; see Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975).

The defendant first claims that the fire safety code is unconstitutionally vague because it is unclear from § 11-1.8.1 whether the smoke detector must be "installed" or "provided." Section 11-1.8.1, which states that "each dwelling unit shall be provided with a minimum of one approved smoke detector installed in a manner and location approved by the local fire marshal and the responsible building official," clearly delineates that the person providing the smoke detector must also install it. Therefore, § 11-1.8.1 is not unconstitutionally vague in this regard.

The defendant also claims that the provision is unconstitutionally vague because it fails to set forth who must provide and install the smoke detector. We find the defendant's contention without merit for several reasons. As we stated in State v. Pickering, supra, 180 Conn. at 62-63, 428 A.2d 322, "[r]eferences 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." On October 6, 1982, approximately two and one-half months before the fire in this case, Tucker v. Lopez, 38 Conn.Sup. 67, 68-69, 457 A.2d 666 (1982), was decided, stating that the landlord is required to install smoke detectors pursuant to § 11-1.8.1 of the fire safety code.

Moreover, as we also stated in State v. Pickering, supra, 180 Conn. at 57, 428 A.2d 322, "the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue." In the present case, the defendant received notice from the East Hartford fire marshal informing him that he was required to install smoke detectors in that building pursuant to the fire safety code. We conclude that, in light of the prior judicial decision and the notice from the East Hartford fire marshal, the defendant had been fairly warned that...