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State v. Taveras
Citations: 193 A.3d 561; 183 Conn. App. 354Docket: AC38602
Court: Connecticut Appellate Court; July 17, 2018; Connecticut; State Appellate Court
Original Court Document: View Document
The "officially released" date in Connecticut court opinions indicates when the opinion is published in the Connecticut Law Journal or released as a slip opinion, serving as the starting point for deadlines related to post-opinion motions and petitions for certification. All opinions are subject to modification before official publication in the Connecticut Reports and Connecticut Appellate Reports. In cases of discrepancies between advance release versions and later published versions, the latter are authoritative. The syllabus and procedural history of opinions published in the Connecticut Law Journal and official reports are copyrighted and cannot be reproduced without permission from the Commission on Official Legal Publications. In the case of STATE OF CONNECTICUT v. KERLYN M. TAVERAS, the defendant appealed the revocation of his probation and an 18-month incarceration sentence following a charge of breach of the peace. This charge stemmed from a verbal confrontation at a preschool after he arrived late to pick up his child. The trial court found he violated probation based on a preponderance of evidence, including statements he made during the incident. On appeal, the defendant argued that the evidence was insufficient to demonstrate a violation, asserting his words did not qualify as fighting words or true threats under the First Amendment. The appellate court found that the state failed to establish sufficient evidence of breach of the peace, noting the trial court's reliance on the defendant's demeanor without specific conduct details. The court highlighted the lack of evidence regarding the tone of the defendant's remarks and any threatening gestures, concluding that the evidence did not support the trial court's findings. The evidence presented at the defendant's probation revocation hearing was inadequate to prove that his statement constituted either fighting words or a true threat, leading to a violation of his First Amendment rights. The defendant’s statement, "you better be careful, you better watch yourself," did not qualify as fighting words under General Statutes § 53a-181 (a)(1) or (3) because it lacked the tendency to provoke imminent violence from an average person. The statement was deemed ambiguous and conditional, with no reference to unlawful or violent actions, and the defendant was physically unable to act on it at the time, having exited the preschool’s premises. Additionally, the statement did not represent a true threat, as a reasonable listener would not interpret it as a serious intent to cause harm. The phrases used were not explicit threats and did not convey an intention to assault. There was also no evidence that the victim had any prior exposure to similar conduct from the defendant, which could have informed her interpretation of his words. The trial court's judgments revoking the defendant's probation were reversed, and the case was directed for further proceedings. The appeal was argued on January 16 and released officially on July 17, 2018. Two categories of speech are deemed unprotected under the First and Fourteenth Amendments: fighting words and true threats. In this case, the court determined that the defendant's speech did not fall into either category, thus it could not be restricted by Connecticut's General Statutes § 53a-181 (a). Consequently, the evidence from the probation revocation hearing was inadequate to prove a violation of probation, leading the court to reverse the trial court's judgment and mandate a judgment in favor of the defendant. The relevant facts include that in May 2012, the defendant pleaded guilty to two counts of second-degree threatening and one count of third-degree assault, resulting in a one-year sentence with execution suspended after four months, followed by three years of probation starting July 1, 2013. On March 11, 2014, the defendant arrived late to pick up his child from a preschool, leading to an argument with the staff. After being asked to leave, he made a statement to the assistant education manager, Sondra Cherney, which prompted her to report the incident to the director, who subsequently contacted the police. The defendant voluntarily reported to the police the next day and was charged with breach of the peace in the second degree. Although the defendant’s probation officer was aware of this incident, he chose not to proceed with a probation violation charge at that time. Subsequently, on April 16, 2014, the defendant was arrested for violating a protective order, prompting the probation officer to apply for a warrant for violation of probation based on both incidents. On May 6, 2014, the defendant was arrested for violating his probation under 53a-32 by allegedly breaching the peace in the second degree on March 11, 2014, due to threatening behavior towards staff at a preschool. A hearing took place on July 15 and 16, 2015, where the state presented its case without testimony from eyewitnesses, relying instead on the accounts of witnesses Kelly and Bevilaqua. Kelly discussed the conditions of the defendant’s probation and acknowledged he initially chose not to charge the defendant for the March incident, opting instead for leniency. Bevilaqua provided details of the incident, indicating that the defendant escalated his behavior upon arriving at the preschool and had previous confrontations regarding late pickups of his child. Despite objection from the defense, the trial court accepted this testimony. Ultimately, the court ruled that the state met its burden of proof, finding the defendant had violated his probation and sentencing him to eighteen months of incarceration. The defendant appealed, arguing that the evidence was insufficient to support the probation violation finding. The defendant argues that his speech did not qualify as fighting words or a true threat, thus should not be restricted under the First Amendment. The state counters that the defendant's claim lacks merit and that it provided adequate evidence for the trial court's ruling. The court supports the defendant’s position, outlining the two phases of probation revocation hearings: the evidentiary phase, which assesses whether a probation violation occurred, and the dispositional phase, deciding on revocation. The standard of proof for a violation requires evidence that establishes the violation by a preponderance, meaning that it is more likely than not that the defendant did not meet probation terms. The court can draw reasonable inferences from evidence, and sufficiency challenges relate to whether the trial court’s factual findings were clearly erroneous. A finding is deemed clearly erroneous if it lacks record support or if the reviewing court is convinced a mistake occurred, despite existing evidence. The text emphasizes that probation hearings are civil rather than criminal proceedings, and proof of criminal conduct does not need to meet the threshold for a criminal conviction to sustain a revocation. Proof of the defendant's conduct is essential for revoking probation, requiring that the actions meet the elements of the alleged violation of criminal law. Specifically, in cases of probation violation involving General Statutes § 53a-181 (a)(1), the state must demonstrate by a preponderance of the evidence that the defendant engaged in violent or threatening behavior in public with intent to cause annoyance or alarm, or recklessly created a risk of such outcomes. The term "threatening" is interpreted in conjunction with related terms to convey a serious nature, necessitating actual or imminent physical violence. For a violation under § 53a-181 (a)(3), the state must prove that the defendant threatened to commit a crime against another, intending to disturb lawful activities or provoke anxiety. The interpretations of these statutes are informed by previous case law and legislative intent. The court examined the state's argument that the defendant's First Amendment rights were not violated because his probation was revoked based on conduct rather than speech. The state cited *State v. Simmons*, where a defendant's aggressive behavior, including blocking a path and yelling at guards, led to a conviction for breach of peace, affirming that the judgment was based on conduct rather than speech. The court also referenced other cases where physical conduct accompanied speech, resulting in similar conclusions regarding First Amendment claims. However, in the current case, the trial court's findings focused on the defendant's threatening demeanor without citing specific conduct. Testimony indicated that the defendant's behavior was not threatening until he exited the preschool and made a specific statement, and the record lacked clarity regarding the tone or any accompanying threatening gestures. The defendant's attempt to reenter a preschool after making a statement lacks evidence regarding the manner of the attempt, specifically how he attempted to open the door. Both the state and dissent suggest that the court could infer an aggressive intent to confront an individual named Cherney, but the trial court did not state such an inference. Consequently, the argument for sufficient evidence of the defendant's breach of peace in the second degree based on nonverbal conduct is rejected. The document references various cases establishing criteria for sufficient evidence of breach of peace, emphasizing that behavior must indicate intent to disturb public order, such as violent actions or physical confrontations. The trial court's finding of a violation of probation was primarily based on the defendant's speech directed at Head Start staff, raising the issue of whether this speech is protected by the First Amendment or constitutes punishable criminal conduct. The standard of review for trial court findings is typically for clear error, but in First Amendment cases, an appellate court applies a de novo standard, necessitating an independent examination of the statements and context to ensure the judgment does not infringe on free expression rights. An appellate court must review evidence in specific cases to ensure constitutional application of principles, even though findings of fact are typically not overturned unless deemed clearly erroneous. The court engages in an independent review of crucial facts while upholding credibility determinations that are not clearly erroneous. In First Amendment cases, heightened scrutiny is applied, but this does not allow the court to make credibility assessments on disputed facts. The court analyzes whether statements breach the peace in the second degree, referencing First Amendment protections against the abridgment of free speech, which includes the exchange of even unpopular ideas. While free speech is generally protected, the government can impose restrictions on certain expressions with minimal social value or those that incite immediate breach of peace. Moreover, advocacy of law violations is only prohibited when it incites imminent lawless action. True threats can also be banned, and Connecticut law does not require actual physical contact to establish a breach of peace; rather, it focuses on speech that could be categorized as fighting words. Threatening statements that do not qualify as true threats may still be classified as fighting words, which could be criminalized under specific legal provisions while remaining consistent with First Amendment rights. In the case referenced, to prove a violation of § 53a-181 (a), the state needed to demonstrate that the statements "you better be careful, you better watch yourself" and "you better watch your back" constituted either fighting words or true threats. The defendant argued that his statements were insufficient to provoke a violent response due to their ambiguity and lack of direct reference to unlawful acts. The legal principle established in Chaplinsky v. New Hampshire states that fighting words are those that have a direct tendency to incite violence or breach the peace. Such words should provoke an immediate violent reaction, though actual violence is not required for classification. Courts evaluate whether language constitutes fighting words based on the specific context and the likelihood of a reasonable person responding violently. This analysis considers both the nature of the words and the circumstances of their utterance, emphasizing a case-by-case approach to determine the potential for violent retaliation by the recipient. Analysis of the utterance of words includes the context of how, by whom, and to whom they were spoken, as well as relevant circumstances that may influence the likelihood of a violent reaction. While the addressee's response is not conclusive, it can indicate the potential for violence. In *State v. Parnoff*, the court reviewed a case where Parnoff threatened employees on his property, ultimately concluding that his conditional threat did not qualify as "fighting words" necessary for a disorderly conduct conviction. The court found insufficient evidence of imminent retaliation since Parnoff had not shown an immediate capacity to carry out his threat. Applying these principles, the defendant's statement in the current case was deemed non-threatening and ambiguous, lacking the potential to provoke immediate violence. Key testimonies indicated the defendant's conduct was not aggressive until a vague warning was issued, and he was physically unable to act on his words at the time. Therefore, it was determined that the evidence did not support a breach of the peace charge under the fighting words exception of the First Amendment. The defendant contends that the evidence from his probation revocation hearing fails to prove, by a preponderance of the evidence, that his speech constituted a true threat under statute 53a-181 (a)(3). He argues that his remarks were spontaneous reactions to his anger and upset. In contrast, the state asserts that the defendant's statement should be viewed as a true threat when considering the overall context. However, the state did not provide adequate evidence to clarify the ambiguous nature of the defendant's statement. True threats are defined as those where the speaker intends to convey a serious expression of intent to commit unlawful violence against a specific individual or group, regardless of the speaker's actual intent to act. The legal standard for determining whether a statement is a true threat is objective, based on whether a reasonable person would interpret the statement as a serious intent to harm. The context surrounding the threat, including listener reactions, is crucial. For a statement to be prosecutable under threat statutes, it must be unequivocal, unconditional, immediate, and specific, demonstrating a gravity of purpose and likelihood of execution. While the immediacy of the threat is relevant, the focus is primarily on whether it conveys a serious intent to commit violence. To protect First Amendment rights, the state must show that a reasonable listener, aware of the full context, would likely perceive the statement as a genuine threat rather than as protected speech, even if it might be considered offensive. In State v. Krijger, the court examined whether the defendant's ambiguous statements constituted a true threat, considering the prior relationship between the parties. The context of an existing hostile relationship may lead courts to find that a reasonable person would perceive a statement as a genuine threat. However, in this case, the defendant's statements, "you better watch yourself" and "you better watch your back," lacked explicit threats or intent to harm. The court contrasted these with more overt threats from past cases. The state attempted to establish that the comments were threatening by referencing prior similar conduct and the defendant's history of violence. However, there was no evidence that the victim, Cherney, was aware of this history. The court concluded that the ambiguity of the statements meant that a reasonable listener would not likely interpret them as serious threats. Consequently, the evidence was insufficient to prove that the defendant violated his probation by committing breach of the peace, as defined under the true threat exception to free speech protections. Ultimately, the court found that the statements did not qualify as fighting words or true threats. The revocation of the defendant's probation based on his speech violated the First Amendment, as his speech did not fall within the categories of unprotected speech. Consequently, the judgments were reversed, and the cases were remanded for the defendant. The state alleged that the defendant breached the peace due to threatening behavior at his child's preschool, referencing General Statutes § 53a-181 (a), which outlines conduct constituting breach of the peace in the second degree. The state also claimed an alternative ground for affirmance under a different subdivision of the same statute, which addresses threats to commit crimes against persons or property. The defendant raised issues regarding the admission of hearsay evidence and the trial court's finding of probation violation, arguing that the evidence was unreliable and violated his due process rights. The court prioritized the sufficiency of the evidence claim, noting that if the defendant succeeded on this point, the appropriate remedy would be to reverse the judgment and favor the defendant. The state contended that even if evidence was insufficient, a new probation revocation hearing should be allowed, as double jeopardy principles do not apply to probation revocation hearings. However, the court was not persuaded by this argument, and the Supreme Court had not addressed whether a second revocation proceeding could occur after a finding of insufficient evidence in the first. Evidence presented at the probation revocation hearing was adequate to prove a probation violation, thus eliminating the need to consider relief options for insufficient evidence cases. The court referenced prior rulings, specifically noting the reversal of trial court judgments in certain cases such as State v. Maurice M. and State v. Acker. Definitions of "fighting words" and "true threats" were cited, emphasizing their potential to incite violence or express intent for unlawful acts. The judgment was reversed due to insufficient evidence, leading to non-examination of the defendant's additional claims. The record was unclear regarding the identity and content of a call to the defendant, as well as the circumstances of his interactions at a preschool, where a police presence was requested. General Statutes § 53a-32 outlines the procedure for probation violation hearings, emphasizing the necessity of reliable evidence for revocation. The state charged the defendant based on incidents in March and April 2014, but did not provide testimony related to the April arrest during the hearing. The violation of probation warrant was entered as court’s exhibit A without objection from either the defense or the state. The warrant detailed an incident on March 11, 2014, when the Danbury Police were called to the Head Start Program due to a dispute involving the defendant, who was notably late in picking up his child. Upon being reminded about the pickup time, the defendant became agitated and argued with staff, ultimately being asked to leave for his disruptive behavior in front of others. He allegedly threatened staff by saying, "you better watch your back," prompting the school to hire a police officer for security during his next visit. The court disagreed with the dissent's assertion that the defendant's conduct could not be considered threatening until after he left the preschool. The dissent contended the defendant's behavior was threatening; however, no evidence was presented to substantiate this claim while the defendant was inside the preschool. Testimony indicated that the state could not identify any threatening physical actions beyond an attempt to open an inner door. The court reiterated that the testimony did not support the claim of threatening behavior while inside the preschool, and prior convictions of the defendant were deemed irrelevant to the assessment of his conduct during this incident. Furthermore, while it was noted that elements of breach of the peace and disorderly conduct are similar, the former requires the conduct to occur in a public space. The testimony indicated staff felt shaken, but there was no specific evidence regarding the reactions of individuals involved. The court highlighted the lack of evidence on how the defendant communicated his threats or if he made any threatening gestures accompanying his statements.