State v. Krijger

313 Conn. 434

97 A.3d 946

STATE of Connecticut

v.Stephen Jason KRIJGER.

No. 18854.

Supreme Court of Connecticut.

Argued Oct. 28, 2013.

Decided Sept. 2, 2014.

Richard E. Condon, Jr., senior 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).

ROGERS, C.J., and PALMER, ZARELLA, McDONALD and ESPINOSA, Js.

PALMER, J.

Following a hearing in Superior Court in the judicial district of New London concerning a long-standing zoning dispute between the defendant, Stephen Jason Krijger, and the town of Waterford (town), the defendant allegedly threatened Nicholas Kepple, the attorney who had represented the town at the hearing. Kepple notified the police of his confrontation with the defendant, who was arrested in connection with the incident. Thereafter, a jury found the defendant guilty of threatening in the second degree in violation of General Statutes § 53a–62 (a)(3)¹ and breach of the peace in the second degree in violation of General Statutes § 53a–181 (a)(3).² The trial court rendered judgment in accordance with the jury verdict, and the defendant appealed to the Appellate Court, claiming, inter alia, that the statements forming the basis of his conviction were protected by the first amendment to the United States constitution ³ because they were not real or true threats.⁴ The Appellate Court, with one judge dissenting, rejected the defendant's claim; see State v. Krijger, 130 Conn.App. 470, 480, 484, 24 A.3d 42 (2011); see also id. at 484–85, 24 A.3d 42 ( Lavine, J., dissenting) (concluding that defendant's statements did not constitute true threat); and we granted the defendant's petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly determine that the evidence was sufficient to establish that the defendant's [conviction was] based [on] ‘true threats' [that] were not protected speech under the first and fourteenth amendments to the United States constitution?” State v. Krijger, 302 Conn. 935, 28 A.3d 992 (2011). We conclude that, although the defendant's statements were offensive, they did not rise to the level of a true threat, and, consequently, they are entitled to the protection of the first amendment despite their inflammatory nature. Because the defendant's conviction cannot stand, we reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following procedural history and relevant facts, which the jury reasonably could have found. “The defendant's conviction arises out of statements that he made to ... Kepple ... outside the New London Superior Court on July 21, 2008. The defendant had been involved in a legal dispute with the town ... since the mid–1990s due to various zoning violations relating to the [repeated] 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 [thereafter] 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 [between the town and the defendant] in 2000 while representing the town during the defendant's appeal from the court's order granting the lien.... In 2003, the town foreclosed on the judgment lien and a lien [that it had obtained against the defendant's property] 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 [his] unpaid taxes.

“After paying the judgment lien, the defendant continued to violate the injunction from 2003 until 2008.... The defendant's continued noncompliance resulted in multiple occasions [on which] both Kepple and the defendant appeared in court [to address motions for contempt that Kepple had filed against the defendant on behalf of the town]. In addition, Kepple and various zoning enforcement officers visited the defendant's property forty to fifty times in regard to his continued noncompliance.... Kepple testified that during his interactions with the defendant on these occasions, the defendant had always been ‘pleasant and cooperative....’ [Michael Glidden, a zoning enforcement officer for the town, also testified that the defendant had always been ‘very cordial’ in his dealings with Glidden.]

“On July 21, 2008, the defendant, representing himself, appeared in court in response to Kepple's [motion seeking to have] ... 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 ... Glidden ... testified regarding the zoning violations. [According to Kepple, the request for fines had upset the defendant because it was the defendant's belief that, if he brought his property into compliance, the town would not seek fines against him. Kepple testified that the defendant previously had stated that ‘the town had promised him that so long as he complied,’ the town would not ‘seek the fines.’] At the conclusion of the hearing, the [court] did not make an immediate ruling but did indicate that [it] would be imposing fines on the defendant for violating the permanent injunction and failing 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 [saliva] in the corner of his mouth. The defendant then stated to Kepple, ‘[m]ore of what happened to your son is going to happen to you,’ to which Kepple replied, ‘[w]hat did you say?’ ... [T]he defendant responded, ‘I'm going to be there to watch it happen.’ Kepple then responded by saying, ‘[y]ou piece of shit,’ prompting the defendant to respond by calling Kepple a ‘piece of shit.’ Kepple then stated, ‘[b]ut who has got your $25,000, bitch?’ ” ⁵ (Citation omitted; footnote omitted.) State v. Krijger, supra, 130 Conn.App. at 472–75, 24 A.3d 42. According to Kepple, the entire exchange lasted no more than “fifteen or twenty seconds.”

“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 [earlier] while he was an officer with the [Groton Police Department]. The accident left [him] with broken ribs and broken teeth ... severe brain damage resulting in an inability to use the right side of his body [and] cognitive and motor impairments.⁶ The accident was highly publicized in local newspapers at the time it occurred. Additionally, [the local media] published [newspaper] 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.” (Footnote altered.) State v. Krijger, supra, 130 Conn.App. at 475–76, 24 A.3d 42.

Following the incident at issue, Kepple and Glidden crossed the street to evade the defendant. See id. at 476, 24 A.3d 42. Glidden testified that, as they were walking away, he said to Kepple: “I think he just threatened [you],” to which Kepple, in response, “sort of didn't say anything to [Glidden]; [he was] like, no, no, no, not really.” On cross-examination, Glidden clarified that, “[a]t first, [Kepple's] reaction was, when I told him it was a threat, he just sort of shrugged it off.”

In addition to Kepple's account of the defendant's statements, the jury also heard Glidden's alternative account of the words spoken by the defendant. Glidden characterized the exchange between the defendant and Kepple as a “heated conversation, an argument.” According to Glidden, who was standing next to Kepple at the time, “[the defendant] said he wished ill will [on Kepple's] family and [Kepple] ... and that [the defendant] would be ... present to see that.” Glidden also testified that, approximately two to three hours after the incident, he returned to his office and made written notes of his recollection of what had occurred. In these notes, which were admitted into evidence, Glidden wrote that the defendant stated to Kepple that he “wished harm and misfortune [on] him and his family, just like what happened to ... Kepple's son.” According to Glidden, the defendant also told Kepple that “he hoped that he would be present when such misfortune befalls [the] Kepples.” (Emphasis added.) Glidden also gave a statement to the police approximately two days after the incident, which was admitted into evidence. Glidden's statement “contained the following description of the defendant's comments: ‘[The defendant] told ... Kepple that he wished harm and misfortune [on] him and his family just like what happened to ... Kepple's son. [The defendant] then told ... Kepple that he will be present when that happens.’ Thus, the jury was presented with versions of the defendant's statements that differed in one relevant respect, namely, the presence or absence of precatory language.” State v. Krijger, supra, 130 Conn.App. at 474 n. 1, 24 A.3d 42.

After Glidden and...