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State v. Pelella

Supreme Court of Connecticut

October 10, 2017

STATE OF CONNECTICUT
v.
MICHAEL PELELLA

          Argued December 5, 2016

          Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Edward L. Miller, deputy assistant state's attorney, for the appellant (state).

          Mary Boehlert, assigned counsel, for the appellee (defendant).

          Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js. [*]

         Syllabus

         The state, on the granting of permission, appealed from the judgment of the trial court, which granted the defendant's motion to dismiss an information charging him with two counts of the crime of threatening in the second degree. The charges stemmed from an altercation between the defendant and his brother, F, over F's intention to move into the attic of a house where the defendant and F resided with their mother. During the altercation, the defendant told F that he would ‘‘hurt'' him if he went into the attic. In response to the defendant's statement to F, their mother called the police. In his motion to dismiss, the defendant claimed that the allegedly threatening statement was not a true threat, which is a form of speech that is not protected by the first amendment of the United States constitution, but was merely a spontaneous outburst, rooted in his anger and frustration with F. In granting the defendant's motion, the trial court concluded that the state would be unable to sustain its burden of establishing that the statement constituted a true threat. On appeal, the state claimed that the statement constituted a true threat and that the trial court improperly granted the defendant's motion to dismiss. The state also contended that the trial court incorrectly determined that the law required a threat to be imminent for it to constitute a true threat and improperly viewed the evidence in the light most favorable to the defendant in ruling on the motion to dismiss. Held that the trial court improperly granted the defendant's motion to dismiss, as a jury reasonably could have found that the defendant's statement was a true threat: the trial court, in ruling on the motion to dismiss, was required to consider the evidence before it in the light most favorable to the state, and, when the evidence was viewed in such a light, it was possible for the state, following a trial, to convince a person of reasonable caution that the defendant's statement was highly likely to be perceived as a serious expression of an intent to harm F, and, accordingly, the issue of whether the statement was a true threat should have been for the jury to decide; the defendant's statement unambiguously communicated an ultimatum, the statement, according to F, was communicated directly to F rather than to the mother in an effort to have her arbitrate the dispute between F and the defendant, the prior relationship between F and the defendant involved at least one previous encounter that was physical in nature and caused F to fear for his safety, and the mother, who was intimately familiar with the history between F and the defendant, found it necessary to call the police to the scene and could be heard on the phone with the police stating that the defendant had threatened F; moreover, it was not necessary for this court to determine whether the trial court, in ruling on the motion to dismiss, relied on the imminence of the defendant's alleged threat, as imminence is only one factor to be considered in the determination of whether a statement constitutes a true threat rather than a requirement.

         Procedural History

         Substitute information charging the defendant with two counts of the crime of threatening in the second degree, brought to the Superior Court in the judicial district of Danbury, where the court, Eschuk, J., granted the defendant's motion to dismiss and rendered judgment thereon, from which the state, on the granting of permission, appealed. Reversed; further proceedings.

          OPINION

          PALMER, J.

         The defendant, Michael Pelella, was arrested following an altercation with his brother and charged with two counts of threatening in the second degree, one for threatening to commit a crime of violence with intent to terrorize under General Statutes (Rev. to 2013) § 53a-62 (a) (2), and the other for threatening to commit a crime of violence in reckless disregard of the risk of causing terror under General Statutes (Rev. to 2013) § 53a-62 (a) (3).[1] The defendant subsequently filed a motion to dismiss the charges ‘‘for lack of sufficient evidence or cause, '' and the trial court granted the motion and rendered judgment dismissing the charges, concluding that the state would be unable to demonstrate that the statement by the defendant on which the charges were based constituted a ‘‘ ‘true threat, ' '' a form of speech that is not protected by the first amendment to the United States constitution.[2]Thereafter, the trial court granted the state's motion for permission to appeal, [3] and the state now claims that the trial court improperly granted the defendant's motion to dismiss after (1) incorrectly determining that an expression of an intent to cause harm to another cannot constitute a true threat unless the contemplated harm is imminent or immediate, and (2) improperly viewing the evidence before it in the light most favorable to the defendant. We agree with both of these contentions, and, therefore, we also agree that the trial court improperly granted the defendant's motion to dismiss the charges. Accordingly, we reverse the judgment of the trial court and remand the case to that court with direction to deny the motion to dismiss.

         The following facts and procedural history are relevant to this appeal. According to a police report submitted by both parties, on January 20, 2014, police officers responded to 22 Fairlawn Avenue in the city of Danbury to investigate the report of a domestic disturbance at that residence. When they arrived, the officers discovered the thirty-one year old defendant, along with his twenty-two year old brother, Francis Pelella, and their mother, Linda Pelella, all three of whom resided at 22 Fairlawn Avenue. According to all three parties, the disturbance arose out of a disagreement between Francis, who wanted to move into the attic of the house, and the defendant, who had ‘‘some of his stuff up there'' and objected to the move. The defendant told the officers that, faced with their opposition, [4] Francis became angry and started yelling and cursing. The mother added that Francis ‘‘got into her face.'' Francis, meanwhile, reported to the police that the defendant had told him, ‘‘ ‘if you go into the attic I will hurt you.' '' Francis added that he felt threatened and feared for his safety because the defendant had physically harmed him in the past.

         The defendant and the mother admitted that the defendant had said that he would hurt Francis if he moved into the attic, but both claimed that the defendant had made the statement to the mother, not to Francis. The defendant claimed that he felt he had a right to protect his belongings. Both men attempted to play for the officers recordings that they had made of the encounter. Francis played a video recording on his cell phone that showed Francis standing at the top of a staircase and the defendant and the mother downstairs; the mother's voice could be heard, apparently on the telephone with the police, saying that the defendant had threatened to hurt Francis. Although the defendant also attempted to play for the officers an audio recording of the incident on his computer, the recording was unintelligible. Both the defendant and Francis were arrested for their participation in the altercation, the defendant for threatening and Francis for disorderly conduct.[5]

         After the state filed a substitute information charging the defendant with two counts of threatening in the second degree, the defendant filed a pretrial motion to dismiss for insufficient evidence or cause pursuant to Practice Book § 41-8 (5).[6] In support of his motion, the defendant claimed that the allegedly threatening statement was merely ‘‘a spontaneous outburst rooted in his anger and frustration with his brother, '' and not an unprotected ‘‘ ‘true threat, ' '' as described by this court in State v. Krijger, 313 Conn. 434, 450, 97 A.3d 946 (2014). See id. (true threat must be ‘‘on its face and in the circumstances in which it is made . . . so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution'' [internal quotation marks omitted]). The defendant argued that the alleged threat was conditional and not subject to an ‘‘imminent prospect of execution, '' and that it was ‘‘nonspecific as to what would be done, '' including whether the threatened response would be physical in nature. He further maintained, incorrectly, that there was ‘‘nothing to indicate [that] the threat was made directly to Francis.'' In opposing the defendant's motion, the state maintained that the defendant's statement fit squarely within the objective standard articulated in Krijger, namely, ‘‘whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.'' (Internal quotation marks omitted.) State v. Krijger, supra, 450. In the state's view, the statement was an explicit threat notwithstanding its conditional nature. The state noted that this court had previously found the statement, ‘‘ ‘[t]his is for you if you bother me anymore, ' '' to be a threat. State v. Cook, 287 Conn. 237, 240, 255, 947 A.2d 307 (defendant was simultaneously brandishing table leg), cert. denied, 555 U.S. 970, 129 S.Ct. 464, 172 L.Ed.2d 328 (2008). The state also asserted that Francis' claim that the defendant had hurt him physically in the past removed any ambiguity about the nature of the threat and distinguished the present case from Krijger, in which the defendant's relationship with the alleged victim had previously been ‘‘cordial . . . .'' State v. Krijger, supra, 454.

         After considering the parties' arguments, the trial court issued a memorandum of decision in which it granted the defendant's motion to dismiss.[7] The court commenced its analysis of the defendant's claim by characterizing the issue as whether the state could establish that the defendant's words amounted to a true threat or ‘‘were instead either part of a discourse, or were merely words uttered as an ‘unplanned [and] spontaneous reaction to the upset and anger [he] felt' . . . and carried no immediate plan to harm.'' (Citation omitted.) The court then noted that, under State v. Krijger, supra, 313 Conn. 460, ‘‘the state must do more than demonstrate that a statement could be interpreted as a threat.'' (Emphasis in original; internal quotation marks omitted.) Rather, the state must show that ‘‘a reasonable listener, familiar with the entire factual context of the defendant's statements, would be highly likely to interpret them as communicating a genuine threat of violence rather than protected expression, however offensive or repugnant.'' (Internal quotation marks omitted.) The court further explained that the statement at issue was ‘‘ ‘susceptible of varying interpretations, at least one of which [was] nonthreatening, ' '' and suggested that it may simply have been ‘‘an expression of how strongly [the defendant] felt about Francis' plan to move into the attic'' or ‘‘an appeal to the mother to arbitrate the dispute.'' In light of the factual context, including the lack of evidence that the defendant approached Francis or took other steps to carry out his threat, the court determined that the state ‘‘would be unable to show that a reasonable listener, fully familiar with the facts, would be ‘highly likely' to interpret them as a genuine threat of violence rather than protected expression, '' as Krijger requires.[8] (Emphasis in original.) The court finally concluded that, because the state would be unable to sustain its burden of establishing that the statement constituted a true threat, the defendant was entitled to a dismissal of the charges.

         On appeal, the state renews its claim that the defendant's statement bore the necessary hallmarks of an unprotected true threat and that the trial court therefore improperly granted the defendant's motion to dismiss on first amendment grounds. The state contends, first, that the trial court incorrectly interpreted Krijger as requiring that a threat must be imminent to constitute a true threat. According to the state, the purported imminence requirement in Krijger constitutes dictum, runs counter to prior cases of this court that have explicitly relied on the opposite proposition, and ignores the fact that threats may be effective-that is, they may convey a serious intent to cause harm-regardless of whether they will be imminently executed. The state also asserts that the trial court's ruling is flawed because the court improperly viewed the evidence before it in the light most favorable to the defendant and that it should have considered that evidence in the light most favorable to the state. Finally, the state claims that, considering all the relevant circumstances presented to the court in that light, a jury reasonably could find that the defendant's statement constituted an unprotected true threat.

         The defendant maintains that the trial court did not, in fact, rely on an ‘‘imminence requirement'' in dismissing the charges and, instead, considered the threats ‘‘in light of their entire factual context, '' noting only that the imminence of the harm ‘‘must be considered.'' (Internal quotation marks omitted.) The defendant further claims that the trial court correctly concluded, upon consideration of the totality of the evidence presented, that the state cannot prove that the defendant's statement was a true threat.

         Because this appeal challenges the propriety of the trial court's decision to grant the defendant's motion to dismiss, we review de novo the trial court's ultimate determination as to whether the defendant's statement constituted a true threat.[9] Thus, we need not decide whether the court relied on the imminence of the alleged threat in making its determination. Nonetheless, we take this opportunity to clarify the apparent inconsistency in our precedents. We conclude that imminence, at least in the sense of immediacy, [10] is only one factor to be considered in determining whether a statement constitutes a true threat under our law, not a requirement.

         Our plenary review of the state's claim also makes it unnecessary to determine whether the trial court viewed the evidence in the light most favorable to the defendant. As we explain more fully hereinafter, for purposes of the present case, the proper analytical approach is to evaluate the evidence in the light most favorable to the state. Having considered the evidence in that light, we are persuaded, contrary to the conclusion of the trial court, that a ...


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