State v. Krijger

130 Conn.App. 470

24 A.3d 42

STATE of Connecticut

v.Stephen J. KRIJGER.

No. 31216.

Appellate Court of Connecticut.

Argued Jan. 6, 2011.Decided Aug. 2, 2011.

Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Sarah E. Steere, senior assistant state's attorney, for the appellee (state).HARPER, LAVINE and ALVORD, Js.HARPER, J.

The defendant, Stephen J. Krijger, appeals from the judgment of conviction, rendered after a jury trial, of threatening in the second degree in violation of General Statutes § 53a–62 (a)(3) and breach of the peace in the second degree in violation of General Statutes § 53a–181 (a)(3). The defendant claims that the evidence was insufficient to establish that the statements on which his conviction was based constituted “true threats” as required for conviction under §§ 53a–62 (a)(3) and 53a–181 (a)(3), rather than protected speech under the first amendment to the United States constitution, as applied to the states through the fourteenth amendment. We disagree and affirm the judgment of conviction.

The jury reasonably could have found the following facts. The defendant's conviction arises out of statements that he made to the victim, Nicholas Kepple, the town attorney for Waterford, outside the New London Superior Court on July 21, 2008. The defendant had been involved in a legal dispute with the town of Waterford (town) since the mid–1990s due to various zoning violations relating to the accumulation of debris on his property located at 18 Totoket Road in the Quaker Hill section of Waterford. In 1996, the town obtained a permanent injunction barring the defendant from violating the town's zoning regulations. Subsequently, the town obtained a court order granting it permission to enter the defendant's property to clean up the debris. The court granted the town a $17,000 lien in order to obtain payment from the defendant for the cleanup costs. Kepple first became involved in the dispute in 2000 while representing the town during the defendant's appeal from the court's order granting the lien. See Waterford v. Krijger, 66 Conn.App. 903, 786 A.2d 544 (2001). In 2003, the town foreclosed on the judgment lien and a lien for unpaid taxes, and the defendant paid the full amount owed, $32,000, representing $25,000 for the cleanup fees and interest, and the remainder for unpaid taxes.

After paying the judgment lien, the defendant continued to violate the injunction from 2003 until 2008, prompting Kepple to file a motion for contempt. The defendant's continued noncompliance resulted in multiple occasions where both Kepple and the defendant appeared in court. In addition, Kepple and various zoning enforcement officers visited the defendant's property forty to fifty times in regard to his continued noncompliance with the permanent injunction. Kepple testified that during his interactions with the defendant on these occasions, the defendant had always been “pleasant and cooperative....”

On July 21, 2008, the defendant, representing himself, appeared in court in response to Kepple's request, on behalf of the town, that the court hold the defendant in contempt and fine him $150 per day for violations of the permanent injunction that occurred between September, 2007, and July, 2008. Kepple represented the town at the hearing, and Michael Glidden, a zoning enforcement officer for the town, testified regarding the zoning violations. At the conclusion of the hearing, the judge did not make an immediate ruling but did indicate that he would be imposing fines on the defendant for violating the permanent injunction and failing to comply with the zoning regulations. The defendant was upset by this outcome, as he was under the impression that the town would not seek fines as long as he agreed to comply with the zoning regulations.

After the hearing, the defendant followed Kepple out of the courtroom, and the two men exchanged words. During this exchange, the defendant expressed his anger over the town's decision to seek fines and called Kepple a “liar” and an “asshole.” The defendant continued to follow Kepple and Glidden as they exited the courthouse. The defendant appeared angry; his face was red and there was spit in the corner of his mouth. The defendant then stated to Kepple, “More of what happened to your son is going to happen to you,” to which Kepple replied, “What did you say?” to which the defendant responded, “I'm going to be there to watch it happen.” ¹ Kepple then responded by saying, “You piece of shit,” prompting the defendant to respond by calling Kepple a “piece of shit.” Kepple then stated, “But who has got your $25,000, bitch?” ²

To place the defendant's statements in context, the following facts regarding Kepple's son are relevant. Kepple's only son had been injured in a car accident several years prior while he was an officer with the Groton town police department. The accident left Kepple's son with broken ribs and broken teeth as well as severe brain damage resulting in an inability to use the right side of his body as well as cognitive and motor impairments.³ The accident was highly publicized in local newspapers at the time it occurred. Additionally, local newspapers published articles after the accident reporting on the progress of Kepple's son's recovery. Kepple testified that he did not recall if he had ever discussed his son's accident with the defendant; however, he opined that it was entirely possible, given the years of interactions with the defendant and the fact that “hundreds and hundreds” of people had asked Kepple about his son's condition in the years following the accident.

Kepple believed that the situation would escalate quickly if he did not leave the scene, so he and Glidden crossed the street. Once out of earshot of the defendant, Glidden stated to Kepple: “I think he just threatened you.” Glidden testified that in response to his statement, “[Kepple] sort of didn't say anything to me, like, no, no, no, not really.” The two then briefly discussed other zoning enforcement cases they were working on and parted ways. The defendant, however, proceeded to follow Glidden to his vehicle in the parking garage. Although the defendant was apologizing to Glidden, Glidden nonetheless felt concerned for his safety and kept his hand on his cell phone until he got in his car, feeling that he may need to quickly dial 911.

On July 23, 2008, Kepple filed a complaint with the New London police department. The defendant was arrested and, on May 15, 2009, after a jury trial, was found guilty of threatening in the second degree in violation of § 53a–62 (a)(3) and breach of the peace in the second degree in violation of § 53a–181 (a)(3). On May 20, 2009, the defendant was sentenced to a total effective term of eighteen months imprisonment, execution suspended after 150 days, followed by two years of probation. This appeal followed.

The defendant claims that there was insufficient evidence to establish that his statements to Kepple constituted “true threats” as required for conviction under §§ 53a–62 (a)(3) and 53a–181 (a)(3), rather than constitutionally protected speech.⁴ We begin by setting forth our standard of review. “The standard of review we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... In [ State v.] DeLoreto, [265 Conn. 145, 827 A.2d 671 (2003)] however, [our Supreme Court] explained that [t]his [c]ourt's duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across the line between speech unconditionally guaranteed and speech which may legitimately be regulated.... In cases [in which] that line must be drawn, the rule is that we examine for ourselves the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the [f]irst [a]mendment ... protect.... We must [independently examine] the whole record ... so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.... New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). [Our Supreme Court] ... reiterated this de novo scope of review in free speech claims in DiMartino v. Richens, 263 Conn. 639, 661–62, 822 A.2d 205 (2003)....” (Citation omitted; internal quotation marks omitted.) State v. Cook, 287 Conn. 237, 254–55, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S.Ct. 464, 172 L.Ed.2d 328 (2008). “Although credibility determinations are reviewed under the clearly-erroneous standard because the trier of fact has had the opportunity to observe the demeanor of the witnesses ... the reviewing court must examine for [itself] the statements in issue and the circumstances under which they were made” to determine if they are protected by the first amendment. (Citation omitted; internal quotation marks omitted.) Harte–Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989).

“The First Amendment, applicable to the States through the Fourteenth Amendment, provides that Congress shall make no law ... abridging the freedom of speech. The hallmark of the protection of free speech is...