STATE v. DIANA L. MOULTON, SC 18632

Judicial District of New London

Criminal; Freedom of Speech; Whether Harassment Statute Proscribes Only Physical Conduct Involved in Making Telephone Call and not Verbal Content of Call; Whether Lack of Definition of "True Threat" in Breach of Peace Jury Instruction was Harmless Error.  The defendant was convicted of second degree breach of the peace in violation of § 53a-181 (a) (3) and second degree harassment in violation of § 53a-183 (a) (3).  The charges stemmed from certain remarks that the defendant made when she telephoned the post office branch where she worked and spoke with a branch supervisor.  During that conversation, the defendant referred to an incident in California in which a postal employee shot and killed several postal workers inside the facility where they worked.  The defendant then, in an angry and agitated tone, stated that she "could do that, too."  On appeal, the Appellate Court (120 Conn. App. 330) reversed the harassment conviction, finding that § 53a-183 (a) (3) was unconstitutional as applied to the defendant because she was punished for the verbal content of her telephone call, in violation of her first amendment right to freedom of speech, rather than her conduct in making the telephone call.  The Appellate Court noted that § 53a-183 (a) (3), which prohibits the conduct of using the telephone as a device to harass, annoy or alarm another person, is not facially unconstitutional.  The court ruled, however, that the trial court's jury instruction, coupled with the state's theory that it was the verbal content of the telephone call that constituted harassment, improperly permitted the jury to find the defendant guilty of harassment on the basis of speech that was not given first amendment scrutiny, rather than on the basis of her conduct in making the call.  The Appellate Court also reversed the breach of the peace conviction because the trial court failed to instruct the jury that the defendant could only be convicted of that charge if her statements constituted a "true threat."  Section 53a-181 (a) (3) provides that “[a] person is guilty of breach of [the] peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creat[ing] a risk thereof, such person . . . threatens to commit any crime against another person or [his] property.”  Courts have held that a defendant is entitled to an instruction that the statute applies only to true threats, that is, a threat that would be viewed by a reasonable person as one that would be understood by the person against whom it was directed as a serious expression of an intent to harm or assault, and not as mere puffery, bluster, jest or hyperbole.  The Appellate Court rejected the state's claim that the omission of the judicial gloss was harmless, finding it was reasonably possible that the jury was misled and that it found the defendant guilty based on conduct that did not rise to the level of a true threat.  The state appeals from the decision to the Supreme Court.