State v. Liebenguth

181 Conn.App. 37

186 A.3d 39

STATE of Connecticut

v.David G. LIEBENGUTH

AC 39506

Appellate Court of Connecticut.

Argued November 15, 2017

Officially released April 17, 2018

Joseph M. Merly, New Haven, with whom, on the brief, was John R. Williams, New Haven, for the appellant (defendant).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Nadia C. Prinz, deputy assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Sheldon and Devlin, Js.

SHELDON, J.

The defendant, David G. Liebenguth, was convicted, following a bench trial, of breach of the peace in the second degree in violation of General Statutes § 53a–181 (a) (5) and tampering with a witness in violation of General Statutes § 53a–151. The charges were filed in connection with an angry confrontation between the defendant and a parking authority officer who had issued him a parking ticket, and a subsequent e-mail from the defendant to the officer's supervisor, suggesting why the officer should not appear in court to testify against him. The defendant now appeals, claiming that the evidence adduced at trial was insufficient to support his conviction of either charge. We affirm in part and reverse in part the judgment of the trial court.

The following evidence was presented at trial. Michael McCargo, a parking enforcement officer for the town of New Canaan, testified that he was patrolling the Morris Court parking lot on the morning of August 28, 2014, when he noticed that the defendant's vehicle was parked in a metered space for which no payment had been made. He first issued a ticket for the defendant's vehicle, then walked to another vehicle to issue a ticket, while his vehicle remained idling behind the defendant's vehicle. As McCargo was returning to his vehicle, he was approached by the defendant, whom he had never before seen or interacted with. The defendant said to McCargo, "not only did you give me a ticket, but you blocked me in." Initially believing that the defendant was calm, McCargo jokingly responded that he didn't want the defendant getting away. When the defendant then attempted to explain why he had parked in the lot, McCargo responded that his vehicle was in a metered space for which payment was required, not in one of the lot's free parking spaces. McCargo testified that the defendant's demeanor then "escalated," with the defendant saying that the parking authority was "unfucking believable" and telling McCargo that he had given him a parking ticket "because my car is white.... [N]o, [you gave] me a ticket because I'm white." As the defendant, who is white, spoke with McCargo, who is African–American, he "flared" his hands and added special emphasis to the profanity he uttered. Even so, according to McCargo, the defendant always remained a "respectable" distance from him. Finally, as the defendant was walking away from McCargo toward his own vehicle, he spoke the words, "remember Ferguson."

After both men had returned to and reentered their vehicles, McCargo, whose window was rolled down, testified that he thought he heard the defendant say the words, "fucking niggers." This caused him to believe that the defendant's prior comment about Ferguson had been made in reference to the then recent shooting of an African–American man by a white police officer in Ferguson, Missouri. He thus believed that the defendant meant to imply that what had happened in Ferguson "was going to happen" to him. McCargo also believed that by uttering the racial slur and making reference to Ferguson, the defendant was trying to rile him up and escalate the situation. That, however, did not happen, for although McCargo found the remark offensive, and he had never before been the target of such language while performing his duties, he remained calm at all times and simply drove away to resume his patrol. Shortly thereafter, however, as he was driving away, the defendant drove past him. As he did so, McCargo testified that the defendant turned toward him, looked directly at him with an angry expression on his face, and repeated the slur, "fucking niggers." McCargo noted in his testimony that the defendant said the slur louder the second time than he had the first time.

After the defendant drove out of the parking lot, McCargo called his supervisor, who instructed him to report the incident to the New Canaan police. In his report, McCargo noted that there might have been a witness to the interaction, whom he described as a young white female. The defendant later was arrested in connection with the incident on the charge of breach of the peace in the second degree.

Next to testify was Mallory Frangione, the young white female witness to the incident whom McCargo had mentioned in his report. She testified that she parked in the Morris Court parking lot around 9:45 a.m. on the morning of August 28, 2014, and as soon as she opened her car door, she heard yelling. She then saw two men, McCargo and the defendant, who were standing outside of their vehicles about seventy feet away from her. She observed that the defendant was moving his hands all around, that his body movements were aggressive and irate, and that his voice was loud. She heard him say something about Ferguson, then say that something was "f'ing unbelievable." She further testified that she saw the defendant take steps toward McCargo while acting in an aggressive manner. She described McCargo, by contrast, as calm, noting that he never raised his voice, moved his arms or gesticulated in any way. McCargo ultimately backed away from the defendant and got into his vehicle. The defendant, she recalled, drove in two circles around the parking lot before leaving. Frangione testified that witnessing the interaction made her feel nervous and upset.

Karen Miller, McCargo's supervisor at the New Canaan Parking Department, also testified. Miller received an e-mail from the defendant at work on March 6, 2015. The e-mail, which was admitted into evidence, read as follows: "Please be advised that on March 12th at 2 p.m.¹ in a court of law in Norwalk, CT., I will prove beyond any reasonable doubt that your meter maid did in fact commit multiple crimes against me, including at least one FELONY, as well as breaking CT vehicular/traffic laws in the operation of his vehicle and New Canaan town ordinances while on the job PRIOR to any false allegations of breach of peace in the second degree on my part. Additionally, as such, I also intend to subsequently invoke and pursue New Canaan town ordinances that would effectively require this meter maid to resign, or be terminated, from his position.

"Although it is not my desire to escalate this situation to the point a mans job, career, and lively hood is on the line, I must do what is necessary to prove my innocence. And in that course it will be proven your mater maid did in fact commit multiple crimes, including at least one FELONY, and infractions against me on that day BEFORE I was forced to react to his criminal actions against me.

"Of course if this is what you want to see happen I look forward to you and your meter maids presence in court next week. It goes without mention that if your meter maid does not show up in court this case will be over and everyone can go peacefully on their own way, no harm, no foul, no fallout.

"It's your choice now to make whatever recommendation you wish to your selectman. It will be MY CHOICE to defend myself from these false charges next week in court by proving (at minimum showing probable cause for an arrest!) your meter maid a criminal at best.a FELON at worst. Perhaps the judge will remand him to custody right then and there from his witness chair?

"Obviously not if he is not there."² (Footnote added.) Miller understood the e-mail to mean that McCargo should absent himself from court proceedings. McCargo also read the e-mail, the sending of which he described as a "scare tactic." He believed the defendant sent the e-mail in order to persuade him not to go to court and testify, and that if he did appear in court, the defendant would pursue negative repercussions as outlined in his e-mail.

After the state rested, the defendant moved for a judgment of acquittal on both counts, which the court denied. The defendant elected not to testify. The court, ruling from the bench, found the defendant guilty on both counts. It reasoned as follows: "In finding that the defendant's language and behavior is not protected speech, the court considers the words themselves, in other words, the content of the speech, the context in which it was uttered, and all of the circumstances surrounding the defendant's speech and behavior.

"The court finds that the defendant's language, fucking niggers directed at Mr. McCargo twice ... is not protected speech.... The defendant's use of the particular racial epithet is in the American lexicon, there is no other racial epithet more loaded with racial animus, no other epithet more degrading, demeaning or dehumanizing. It is a word which is probably the most [vile] racial epithet a non-African-American can direct towards an African–American. [The defendant] is white. Mr. McCargo is African–American.

"In light of this country's long and shameful history of state sanctioned slavery, Jim Crow segregation, state sanctioned racial terrorism, financial and housing discrimination, the word simply has ... no understanding under these circumstances other than as a word directed to incite violence. The word itself is a word likely to provoke a violent response.

"The defendant is not however being prosecuted solely for use of this word. All language must be considered in light of its context.

"The court finds that considering ... the content of the defendant's speech taken in context and in light of his belligerent tone, his aggressive stance, the fact that he was walking towards Mr. McCargo and moving his hands in an aggressive manner, there's no other...