Argued
February 28, 2018
Procedural
History
Substitute
information charging the defendant with five counts of the
crime of illegal practices in campaign financing, two counts
of the crime of larceny in the first degree, and one count of
the crime of tampering with a witness, brought to the
Superior Court in the judicial district of Hartford and tried
to the jury before Dewey, J.; verdict and judgment
of guilty of three counts of illegal practices in campaign
financing, from which the defendant appealed.
Reversed; new trial.
Mark
Rademacher, assistant public defender, for the appellant
(defendant).
Kevin
M. Shay, senior assistant state's attorney, with whom, on
the brief, were Gail P. Hardy, state's attorney, and
Michael A. Gailor, executive assistant state's attorney,
for the appellee (state).
Palmer, D'Auria, Mullins, Kahn and Vertefeuille, Js.
OPINION
KAHN,
J.
This
appeal requires us to determine the appropriate mens rea for
the crime of illegal practices in campaign financing. The
defendant, Ernest Newton II, appeals from the judgment of
conviction, following a jury trial, of three counts of
illegal practices in campaign financing in violation of
General Statutes §§ 9-622 (7) and 53a-8. The
defendant claims that the trial court improperly failed to
instruct the jury that, in order to find him guilty of an
illegal campaign financing practice in violation of §
9-622 (7), it must find that he acted with specific intent to
violate that statute.[1] The state responds that the defendant
waived his instructional challenge and, in the alternative,
that the trial court properly instructed the jury that the
state was required to prove only that the defendant acted
with general intent. We conclude that the trial court
improperly instructed the jury as to the applicable mens rea
for the crime of illegal campaign financing practices.
Accordingly, the judgment of the trial court is reversed.
A brief
overview of Connecticut's public campaign financing
program provides helpful context for considering the issues
presented in this appeal. The website for the State Elections
Enforcement Commission (Commission) describes
Connecticut's public campaign financing program, the
Citizens' Election Program (Program), as ‘‘a
voluntary program which provides full public financing to
qualified candidates for [s]tatewide offices and the General
Assembly. To participate, candidates must agree to abide by
certain guidelines, including contribution and expenditure
limits and disclosure requirements. This voluntary public
campaign financing program was designed to encourage citizen
participation and limit the role of private money in the
[s]tate of Connecticut's political process.''
State Elections Enforcement Commission, Citizens'
Election Program, available at
http://www.ct.gov/seec/cwp/view.asp?a= 3548&Q=489606
(last visited October 11, 2018).
The
Program applies to all state elections, including primaries.
General Statutes § 9-702 (b). In 2012, the amount of
public financing grant money available to a major party
candidate who sought the nomination to the office of state
senator and who had satisfied all of the Program's
prerequisites was $80, 550. General Statutes §§
9-702 (a) (1) and 9-705 (e) (1) and (h). To qualify for a
public financing grant, a candidate for state senator must
raise at least $15, 000 in qualifying contributions,
including contributions from at least 300 individuals
residing in municipalities included in whole or in part in
the candidate's district. General Statutes § 9-704
(a) (3). The maximum qualifying contribution or contributions
that any individual may make is $100. General Statutes §
9-704 (a) (3) (A). Individuals who make qualifying
contributions of more than $50 must fill out a qualifying
contribution certification form (contribution card) that
certifies the truth and accuracy of certain statutorily
required information. General Statutes §§ 9-608 (c)
(3) and 9-704 (b). Candidates who participate in the Program
agree to accept campaign expenditure limits, and they are
prohibited from raising funds other than through qualifying
contributions. General Statutes §§ 9-702 (b) and
(c) and 9-704.
The
jury could have found the following relevant facts. On
January 14, 2012, the defendant registered as a candidate for
state senator in the twenty-third district, affiliated with
the Democratic party. Because the defendant was
‘‘a major party candidate for nomination to the
office of state senator, '' his candidate committee
was eligible under the Program for a grant from the
citizens' election fund for his primary campaign for the
nomination. General Statutes § 9-702 (a) (1). As
required by statute, the defendant filed an affidavit of
intent to abide by the requirements of the Program. General
Statutes § 9-703 (a). In the affidavit of intent, the
defendant certified, inter alia, to the following:
‘‘I understand that I am required to comply with
the requirements of the Program, including all applicable
statutes, regulations and declaratory rulings. I certify that
I understand that my failure to abide by the requirements of
all applicable statutes and regulations relating to the
Program may result in the . . . imposition of penalties [by
the Commission], as provided in [c]hapters 155 and 157 of the
. . . General Statutes. I certify that I understand that I
shall be personally liable for penalties relating to
violations of the Program requirements, by myself, my agents,
and/or anyone acting under my explicit or implied
direction.'' The following notice appears in bold
print at the bottom of the certification form signed and
initialed by the defendant: ‘‘Making a false
statement on this form may subject you to criminal penalties,
including, but not limited to, imprisonment, a fine, or
both.''
On July
9, 2012, Loretta Williams, the treasurer for the
defendant's candidate committee, filed the
defendant's application for a grant from the
citizens' election fund under the Program. In the
application, the defendant and Williams both certified that
the defendant had received the requisite amount of qualifying
contributions. On the same day, Williams filed an itemized
campaign finance disclosure statement, which reported that
the campaign had raised an aggregate amount of $15, 375.
After
Williams filed the defendant's application for the grant
along with the supporting documentation, the Commission
conducted a routine review of the application to confirm that
the defendant had complied with the Program requirements.
That review revealed that the defendant had raised only $14,
410 in qualifying contributions, falling $590 short of the
amount necessary to qualify for the grant of $80, 550 in
public funds. A further review revealed that an additional
$100 qualifying contribution had not been counted, and it was
determined that the shortfall was actually $490. On July 17,
2012, the defendant was holding a rally at his campaign
headquarters. At approximately 4:30 p.m., Williams, who was
at the rally, received a telephone call from the Commission
informing her of the shortfall and informing her of ways that
the campaign could remedy the shortfall and qualify for the
grant. When Williams announced the news to the room, the
defendant, who had been standing next to her,
‘‘threw his hands up in disgust and walked
out.''
Sometime
later that day, Williams discovered $500 in cash on her desk,
along with contribution cards certifying that five
individuals-Alfredo Serrano, Leeta Reed, Mark Bogues, Vincent
Derr and Zena Galberth- had each donated $100 to the
campaign. Contrary to the representations on the contribution
cards, however, none of the five persons who signed the cards
had donated any money at any time to the defendant's
campaign. Sometime after Williams announced the
campaign's shortfall to the room and before she
discovered the cash on her desk, the defendant, either on his
own or through the assistance of another, had approached the
five signors and instructed them to sign the cards. The
defendant assured them that they would not be required to
donate money to the campaign. When they were finished signing
the cards, they handed them back either to the defendant
himself or to someone who was with the defendant.
The
following day, the campaign filed documents showing that, on
July 17, 2012, it had received five separate $100 cash
contributions made in the names of Serrano, Reed, Bogues,
Derr and Galberth. Upon receiving the additional filing, the
campaign disclosure and audit unit of the Commission
submitted a recommendation that the defendant's grant
application be approved. As a result of that approval, the
defendant received a grant of $80, 550.[2] The
defendant's campaign ultimately expended all of its grant
money. The defendant was not elected to office.
On
August 23, 2012, Serrano contacted the Commission to complain
that he had not been compensated for work that he had
performed for the defendant's campaign. At that time,
Serrano also disclosed that he had signed a document stating
that he had made a contribution to the campaign when he had
not in fact contributed any money. Charles Urso, the lead
investigator for the Commission, followed up on the
information provided by Serrano and ultimately took
statements from all five individuals who had signed
contribution cards at the rally on July 17, 2012.
The
defendant was subsequently charged with two counts of larceny
in the first degree in violation of General Statutes §
53a-122 (a) (2) and (4), and § 53a-8, one count of
tampering with a witness in violation of General Statutes
§ 53a-151, and five counts of illegal practices in
campaign financing in violation of §§ 9-622 (7) and
53a-8.[3] Following a jury trial, the defendant was
found guilty of three counts of illegal practices in campaign
financing and found not guilty of tampering with a witness.
The court declared a mistrial as to the remaining counts. The
court sentenced the defendant to a total effective sentence
of six months imprisonment, with the sentence stayed pending
appeal. This appeal followed.[4] Additional facts and procedural
history will be set forth as necessary.
The
defendant claims that the trial court improperly failed to
charge that, in order to find him guilty of an illegal
practice in campaign financing in violation of § 9-622
(7), the jury was required to find that he
‘‘knowingly and wilfully'' violated the
statute as provided in General Statutes § 9-623, and
that the statutory language, ‘‘knowingly and
wilfully, '' denotes that the defendant acted with
specific intent. The state contends that we should decline to
address this claim because the defendant waived it. In the
alternative, the state argues that the trial court's
charge correctly instructed the jury that it had to find that
the defendant acted with general intent. The defendant
responds that his claim is preserved and that he did not
waive it. We conclude that the defendant's claim,
although unpreserved, was not waived, and is reviewable
pursuant to State v. Golding, 213 Conn.
233, 239-40, 567 A.2d 823 (1989). We further conclude that
the trial court improperly instructed the jury that in order
to find the defendant guilty of the crime of illegal
practices in campaign financing, it was required to find that
the defendant acted with general intent.
I
As a
threshold matter, we address the state's contention that
the defendant waived his unpreserved instructional challenge.
The defendant's failure to preserve his instructional
challenge is clear from the record. He failed to file a
request to charge, and he did not take an exception to the
charge as given. Under those circumstances, we have held that
a claim has not been preserved. See State v.Ramos, 261 Conn. 156, 170, 801 A.2d 788 (2002),
overruled in part on other grounds by State v.Elson, 311 Conn. 726, 754-55, 91 A.3d 862
(2014).[5] We have explained that ‘‘a
defendant can prevail on a claim of constitutional error not
preserved at trial only if all of the following
conditions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject to
harmless error analysis, the state has failed to demonstrate
harmlessness of ...