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Gormley v. Director

decided: May 27, 1980.

MARY GORMLEY, APPELLANT,
v.
DIRECTOR, CONNECTICUT STATE DEPARTMENT OF PROBATION AND ATTORNEY GENERAL OF THE STATE OF CONNECTICUT, APPELLEES



Appeal from a judgment entered in the District of Connecticut, M. Joseph Blumenfeld, District Judge, denying a petition for a writ of habeas corpus which challenged, as unconstitutionally overbroad on its face and as applied, the Connecticut telephone harassment statute under which appellant was convicted. Affirmed.

Before Waterman, Mansfield and Timbers, Circuit Judges.

Author: Timbers

See 101 S. Ct. 591.

One of the symptoms of a sick segment of our society is the increasing frequency with which the telephone is used to harass and annoy others. Many states, as well as the federal government, have enacted statutes which make that conduct a criminal offense.

Such a statute the Connecticut telephone harassment statute*fn1 is before us on the instant appeal from a judgment entered in the District of Connecticut denying appellant Mary Gormley's petition for a writ of habeas corpus. The questions presented are whether that statute, under which appellant was convicted in the Connecticut state courts, is unconstitutionally overbroad on its face and as applied. We agree with the district court and the state courts that it is not. We affirm the judgment of the district court.

I

The events which led to appellant's conviction in the state courts occurred on the evening of September 1, 1974. They involve two separate but related incidents.

The first incident occurred about 6:30 P.M. The complainant*fn2 and a friend drove into the parking lot of Hardee's Restaurant in Newington, Connecticut, where complainant worked. Appellant, who had been following complainant, drove her car into the same parking lot and pulled up abreast of complainant's car. As complainant emerged from her car, appellant shouted from her car window that complainant was a "tramp", that complainant's mother was a whore and had gone to bed with appellant's husband, and that appellant was "going to get" complainant this time. While appellant was shouting these insulting remarks, complainant and her friend walked toward the restaurant and entered. This incident was the basis for the disorderly conduct charge for which appellant was prosecuted under Conn.Gen.Stat. § 53a-182(a)(2) (Rev.1958, Supp.1979).

The second incident occurred between 9:00 and 10:00 P.M. the same evening. Appellant telephoned Hardee's Restaurant where complainant was working. The manager who received the call passed the receiver to another employee who in turn passed the receiver to complainant. When complainant got to the phone she heard appellant repeat substantially the same insulting remarks she had made earlier in the evening in the parking lot. Appellant added, however, that she had photographs to prove that complainant's mother had been in bed with appellant's husband, that complainant's family were a bunch of nuts and were all under psychiatric care. This telephone call was the basis for the harassment charge for which appellant was prosecuted under Conn.Gen.Stat. § 53a-183(a)(3) (Rev.1958, Supp.1979).

Appellant was charged in a two count information and was convicted on March 18, 1976 on the disorderly conduct and harassment counts after a jury trial in the Court of Common Pleas at New Britain. She was sentenced on April 15, 1976 on each count to consecutive three month terms of imprisonment. Execution of the sentences of imprisonment was suspended and she was ordered to serve consecutive one year terms of probation under the supervision of the Department of Adult Probation.

Appellant appealed to the Appellate Session of the Superior Court. On September 9, 1977 her conviction on the disorderly conduct count was set aside and a new trial was ordered; but her conviction on the harassment count was affirmed. State v. Anonymous, supra note 2. On March 7, 1978 the Connecticut Supreme Court denied appellant's petition for certification.*fn3 Id.

Appellant thereupon filed a petition for a writ of habeas corpus in the District Court for the District of Connecticut. In a well reasoned opinion dated October 19, 1979, Judge Blumenfeld denied appellant's habeas petition; in so doing, he accepted Magistrate Eagan's findings of fact as modified and accepted the magistrate's recommendation that the petition be denied.

From the judgment entered on Judge Blumenfeld's opinion, this ...


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