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State v. Reed

Court of Appeals of Connecticut

September 19, 2017

STATE OF CONNECTICUT
v.
DORAINE REED

          Argued May 24, 2017

          Maria L. Vogel-Short, certified legal intern, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

          Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Nicholas J. Bove, Jr., senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Alvord and Lavery, Js.

         Syllabus

         Convicted of the crime of harassment in the second degree, the defendant appealed to this court. The defendant's conviction stemmed from an incident in which she made a threatening statement during a telephone call to a legal secretary at a law firm with which she had been engaged in a billing dispute. On appeal, the defendant claimed, inter alia, that the evidence was insufficient to support her conviction, contending that the verbal content of her telephone call could not form the substantive basis for her conviction because she lacked fair warning that State v. Moulton (310 Conn. 337), which was decided several months after she placed the telephone call, would broaden the scope of the second degree harassment statute (§ 53a-183 [a] [3]) to proscribe unprotected harassing speech. Held:

         1. The evidence was sufficient to support the defendant's conviction: the case law prior to Moulton having limited the scope of § 53a-183 (a) (3) to conduct and not speech, Moulton did not apply to the present case, as the defendant lacked fair warning that she could be prosecuted for harassment in the second degree under § 53a-183 (a) (3) on the basis of the verbal content of her telephone call, and, contrary to the state's claim, even though the appeal in Moulton was pending when the defendant made the telephone call, she could not reasonably have foreseen the expansion of the scope of § 53a-183 (a) (3) in that case; nevertheless, the state presented sufficient evidence concerning the circumstances of the defendant's telephone call from which the jury reasonably could have found that the defendant, in referencing a notorious mass shooting incident during the call, intended to harass, annoy or alarm the employees of the firm so that they would take her and her billing complaint more seriously; moreover, pursuant to § 53a-183 (a) (3), the defendant's conduct in placing a single telephone call to the law firm was sufficient to constitute harassment in the second degree when, as in the present case, it was made with an intent to harass, annoy or alarm, as it was clear from the statutory language that the legislature sought to punish each telephone call made with the requisite intent, regardless of the number of times, if any, the victim was actually harassed, annoyed or alarmed.

         2. The trial court improperly failed to provide the jury with a limiting instruction concerning its consideration of the verbal content of the defendant's telephone call, and, because the error was not harmless beyond a reasonable doubt, a new trial was warranted: the state's evidence of the defendant's intent and conduct, although sufficient, was not overwhelming and focused on the defendant's language, and the jury, which reasonably could have found that the mere placing of the call met the definition of harassment under § 53a-183 (a) (3), also could have relied on the defendant's speech as the basis for her conviction, especially given the state's closing argument, which focused on the verbal content of the defendant's call rather that the act of calling itself; moreover, because the jury did not receive an instruction on the law governing the defendant's speech as it pertained to the elements of harassment in the second degree, which the defendant requested and was entitled to, the jury could have been misled into finding the defendant guilty on the basis of her speech.

         Procedural History

         Substitute information charging the defendant with the crimes of threatening in the second degree and harassment in the second degree, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, and tried to the jury before Kavanewsky, J.; verdict and judgment of guilty of harassment in the second degree, from which the defendant appealed to this court. Reversed; new trial.

          OPINION

          DIPENTIMA, C. J.

         The defendant, Doraine Reed, appeals from the judgment of conviction, rendered after a jury trial, of harassment in the second degree in violation of General Statutes § 53a-183 (a) (3).[1] On appeal, the defendant claims that (1) the evidence was insufficient to support her conviction and (2) the court improperly instructed the jury. We disagree with the defendant that the evidence was insufficient to support her conviction. We agree, however, that the court improperly instructed the jury and that this error was not harmless beyond a reasonable doubt. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

         The jury reasonably could have found the following facts. The defendant was engaged in a billing dispute with the law firm that had been representing her, Rosenberg and Press (firm), and was dissatisfied with the way she had been treated. On March 6, 2013, the defendant called the firm. During the call, she complained that on the previous day, the firm's office manager, Osnat Rosenberg, had been rude to her and the firm had ‘‘disrespected'' her. She then said that Adam Lanza[2] had also been disrespected, and unless the firm learned how to treat its clients, someone-even she, herself-might do something similar to the firm.

         This frightened Brittany Mancini, the legal secretary who answered the call, and she immediately notified Osnat Rosenberg. Together, they decided to call the police, who arrived at the firm between thirty and forty minutes later to take statements. Mancini appeared nervous and scared as she was recounting the telephone conversation to the responding officer.

         The defendant subsequently was arrested and charged with threatening in the second degree in violation of General Statutes § 53a-62 (a) (1) and harassment in the second degree in violation of § 53a-183 (a) (3). After a trial on August 6, 2014, the jury returned a verdict of not guilty with respect to the threatening charge and a verdict of guilty with respect to the harassment charge. On September 5, 2014, the court sentenced the defendant to sixty days of incarceration. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the evidence presented at trial was insufficient to support her conviction of harassment in the second degree.[3] Specifically, she argues that the state failed to adduce sufficient evidence to prove that (1) she intended to harass, annoy, or alarm someone at the firm, and (2) a single telephone call made to a commercial establishment during business hours was likely to cause annoyance or alarm within the meaning of § 53a-183 (a) (3). These arguments assume that the verbal content of the defendant's telephone call could not form the substantive basis for her conviction because State v. Moulton, 310 Conn. 337, 78 A.3d 55 (2013), which broadened the scope of § 53a-183 (a) (3) to proscribe constitutionally unprotected harassing speech, does not govern the present case.[4]Although we agree with the defendant that Moulton is inapplicable, we disagree that the state presented insufficient evidence to support her conviction.

         A

         We first address the applicability of Moulton to the present case. The defendant argues that she had no fair warning that Moulton would expand the scope of § 53a-183 (a) (3) to proscribe harassing speech and, thus, she could not be convicted on the basis of the verbal content of her telephone call, even if such content was not protected under the state and federal constitutions. In response, the state first contends that it presented sufficient evidence to prove harassment in the second degree regardless of whether Moulton applies. Alternatively, the state contends that the certified question that was to be decided by our Supreme Court in Moulton should have forewarned the defendant of the impending change in the law and, therefore, her speech, which the state argues comprised a constitutionally unprotected true threat, could form the basis for a harassment conviction. We agree with the defendant that Moulton cannot control and that the verbal content of her telephone call cannot form the substantive basis for her harassment conviction.[5]

         We begin by summarizing the relevant facts and procedural history of Moulton. The defendant in that case was a postal worker who was on leave from her job. Id., 343. She called the United States post office branch at which she worked and asked to speak to the postmaster, but spoke instead to the branch's supervisor of customer service, to whom she expressed frustration over various employment matters. Id., 343-44. She referenced a then-recent workplace shooting at a post office in California, in which a postal worker killed several people. Id., 343. The supervisor alerted the postmaster, postal inspectors, and the police. Id., 344. The Moulton defendant was arrested and eventually convicted of, inter alia, harassment in the second degree. Id. She appealed her conviction to this court. Id. Relying on a line of precedent limiting § 53a-183 (a) (3) to actions and not speech, we reversed her conviction and ordered that a judgment of acquittal be rendered. Id., 344-45. Our Supreme Court granted certification to appeal. Id., 341.

         After examining the relevant jurisprudence and applying tools of statutory interpretation and construction, our Supreme Court concluded that the scope of § 53a-183 (a) (3) was not so narrow. See id., 362-63. The Supreme Court ruled that the legislature had intended to allow a jury to consider harassing and alarming speech as well as conduct, except that ‘‘the court must instruct the jury on the difference between protected and unprotected speech whenever the state relies on the content of a communication as substantive evidence of a violation of § 53a-183 (a).'' Id., 363. At the same time, however, our Supreme Court concluded that this was an unforeseeable expansion of the purview of § 53a-183 (a) (3), and, therefore, that the defendant's harassment conviction could not stand.[6] Id., 363-67.

         In addressing the foreseeability of the change it announced, Moulton provides the appropriate standard for its applicability to the present case. ‘‘We have recognized that the judicial construction of a statute can operate like an ex post facto law and thus violate a criminal defendant's right to fair warning as to what conduct is prohibited. . . . [A] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction. . . . [Thus], when [a] court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law. . . . In determining whether a judicial construction of a statute effectively operates as a prohibited ex post facto law, [t]he question . . . is whether [the] decision was so unforeseeable that [the defendant] had no fair warning that it might come out the way it did. . . . Put differently, [t]he key test in determining whether the due process clause precludes the retrospective application of a judicial decision . . . is whether the decision was sufficiently foreseeable . . . that the defendant had fair warning that the interpretation given the relevant statute by the court would be applied in his case.'' (Citations omitted; internal quotation marks omitted.) Id., 365-66.

         In the present case, as in Moulton, the defendant lacked fair warning that she could be prosecuted for harassment under § 53a-183 (a) (3) on the basis of the verbal content of her telephone call. Until the release of Moulton several months after the defendant placed her telephone call, our case law had been decisive in limiting the scope of the statute to conduct and not speech.[7] The defendant was entitled to rely on that construction of the statute; thus, the content of her speech cannot be the substantive basis for a conviction of harassment in the second degree. See id., 363-66; see also State v. Book, 155 Conn.App. 560, 569 n.7, 109 A.3d 1027 (noting that defendant was not ‘‘properly placed on notice of the change in the law'' where his trial occurred before Moulton), cert. denied, 318 Conn. 901, 122 A.3d 632 (2015), cert. denied, U.S., 136 S.Ct. 2029, 195 L.Ed.2d 219 (2016).

         The state, however, claims that the pendency of Moulton before our Supreme Court-and that court's ultimate use of ordinary tools of statutory construction- forewarned the defendant that § 53a-183 (a) (3) could have been reinterpreted to reach the verbal content of a telephone call when such content was a true threat.[8]The state's argument is unavailing because Moulton itself answers this question: Our harassment jurisprudence had been unequivocal about the scope of the statutory proscription from its inception up through Moulton, never acknowledging or admitting ambiguity in the statute's inapplicability to speech. State v. Moulton, supra, 310 Conn. 366-67 and 367 n.25. We therefore do not agree that the defendant reasonably could have foreseen an outcome our Supreme Court ruled unforeseeable. See id., 367 n.25.

         Because we determine that Moulton was an unforeseeable expansion of the scope of ยง 53a-183 (a) (3), the verbal content of the defendant's telephone call cannot be a substantive basis for her harassment conviction. With that in mind, we turn now to the ...


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