State v. Richey

317 A.3d 1191

226 Conn.App. 234

STATE of Connecticut

v.Michael RICHEY

(AC 46170)

Appellate Court of Connecticut.

Argued March 6, 2024

Officially Released June 18, 2024

James B. Streeto, senior assistant public defender, for the appellant (defendant).

Laurie N. Feldman, assistant state’s attorney, with whom, on the brief, were Jonathan M. Shaw, assistant state’s attorney, and Jaclyn Preville, supervisory assistant state’s attorney, for the appellee (state).

Alvord, Cradle and Clark, Js.

CRADLE, J.

₂₃₆The defendant, Michael Richey, 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) (2) (A).¹ On appeal, the defendant claims that (1) the evidence before the trial court was insufficient to sustain his conviction and (2) the trial court erred in refusing to provide the jury with an instruction on defense of premises. We affirm the judgment of the trial court.

Evidence of the following facts and procedural history are relevant to our consideration of the defendant’s claims on appeal. On February 25, 2020, at approximately 4 p.m., State Marshal Timothy Poloski arrived at the defendant’s residence on West Shore Road in Ellington, accompanied by Connecticut State Trooper Patrick O’Brien, to serve the defendant with court documents in a civil matter. Poloski, who was standing on a deck attached to the defendant’s residence, knocked on the door of the residence while O’Brien stood several feet behind him off of the deck. The defendant answered the door, leaving a storm door closed between himself and Poloski. Poloski greeted the defendant and identified himself as a state marshal, showing the defendant the court docu- ments and explaining that it was a notice from M&T Bank about an upcoming hearing. The defendant replied that he had nothing to do with it, and Poloski explained that the paperwork was a notice of injunction related to a camper that was the subject of the hearing. The defendant then came out onto the ₂₃₇deck, holding the collar of a dog that had been standing beside him and repeatedly told Poloski to "back off my deck." When the defendant refused to accept in-hand service of the court documents, Poloski dropped them inside the defendant’s residence through the open storm door.

O’Brien was making attempts to calm the defendant, who continued to express his displeasure about the matter involving the camper. Meanwhile, Poloski had returned to sit in his car, which was blocked in the defendant’s driveway by O’Brien’s cruiser. The defendant, pointing at Poloski, began repeatedly to shout that Poloski had been told twice not to trespass and directed O’Brien to arrest Poloski for criminal trespass. After O’Brien declined to do so, the defendant shouted to Poloski, "You come back, I guarantee you, you won’t walk away." Despite O’Brien’s repeated attempts to diffuse the situation, the defendant continued to address Poloski, leaving the deck and moving toward Poloski’s car. The defendant stated, "You come back, [O’Brien’s] my witness, you’re done. … Got it? You come back in any way, shape, or form—I see you in public, just like I did yesterday …. You were at the town hall, same thing, screwing around." The defendant then continued repeatedly to state that Poloski had "been trespassed from [the] property." At the same time, the defendant’s dog, which the defendant had released, was jumping on O’Brien in a friendly manner. When O’Brien remarked that the dog was "fine" in response to the defendant’s command to the dog to "stay down," the defendant replied that "she’s good unless I say something. I’ll guarantee you, she’s fine."

As O’Brien was returning to his cruiser, the defendant approached Poloski’s car, stating, "Trust me, pal. Trust me. I’m going to get even with you. [O’Brien] ain’t going to be on your ass all day. You want to fuck with me? Come on, get out of the car. … Come on, get out of ₂₃₈the car, big mouth. … I’ve fucked with you before, and I’ve won every goddamned time. You keep fucking around …. You see the sign up there? Says absolutely you’re trespassing. You keep fucking around, you’re going to get a bullet in your head. I’ll guarantee you that, pal." At that point, O’Brien walked back toward the defendant, instructing him to go back into his house. The defendant refused to do so and continued to address Poloski, stating, "You keep fucking around, marshal. You go ahead. You keep fucking around. … I’ll go to jail. I don’t give a shit. But, you won’t leave. … This is your last warning. You can call [inaudible] and ask him whether or not you think I’m not going to do it." O’Brien then returned to his cruiser, and he and Poloski left the premises. Later that day, O’Brien and three other police officers returned to arrest the defendant, and Poloski provided a written statement about the incident.

The operative information, dated December 5, 2022, charged the defendant with two counts of threatening in the second degree in violation of § 53a-62.² A jury ₂₃₉trial was held on December 5 and 6, 2022, during which the state introduced into evidence O’Brien’s body camera footage of the incident and the testimony of Poloski and O’Brien. The defendant did not present any evidence. The jury then found the defendant guilty of the first count, threatening in the second degree in violation of § 53a-62 (a) (2) (A), and not guilty of the second count, threatening in the second degree in violation of § 53a-62 (a) (2) (B), and the court, Klatt, J., sentenced the defendant to six months of incarceration, execution suspended, with a one year conditional discharge, the conditions of which required him to have no contact with Poloski and no new arrests. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

On appeal, the defendant claims that the evidence is insufficient to sustain his conviction for threatening because his statements did not constitute true threats and were, therefore, protected by the first amendment to the United States constitution.³ We disagree.

The following additional procedural history is relevant to the resolution of this claim. At trial on December 6, 2022, the court’s jury charge provided in relevant part: "As to count one, that’s the intentional threatening, threatening in the second degree in violation of § 53a-62 (a) (2) (A). The statute defining this offense reads in pertinent part as follows: A person is guilty of threatening in the second degree when that person threatens to commit any crime of violence with the intent to terrorize another person. For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt. The first element ₂₄₀is that the defendant threatened to commit a crime of violence. A crime of violence is one in which physical force is exerted for the purpose of violating, injuring, damaging, or abusing another person. The state must prove that the defendant behaved in a manner that indicated his intent to commit such a crime.

"Now, a threat can only be punishable when it is a true threat, that is, a threat that a reasonable person would understand as a serious expression of an intent to harm or assault, and not mere puffery, bluster, jest, or hyperbole. In determining whether the threat is a true threat, consider the particular factual context in which the allegedly threatening conduct occurred, which could include the reaction of the person allegedly being threatened and the defendant’s conduct before and after the allegedly threatening conduct.

"Now, the second element of this count is that the defendant intended to terrorize another person. To terrorize means to cause intense fear or apprehension. A person acts intentionally with respect to a result when his conscious objective is to cause such a result." The jury subsequently found the defendant guilty of threatening in the second degree in violation of § 53a-62 (a) (2) (A).

[1] On appeal, the defendant argues that, rather than true threats, which are punishable under § 53a-62 (a) (2) (A), his statements were "classic examples of hyperbole, bluster, or puffery protected by the first amendment [to the United States constitution]" and, therefore, were not sufficient evidence of any criminal violation.⁴

[2, 3] ₂₄₁"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, 152–53, 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." (Internal quotation marks omitted.) State v. Carter, 141 Conn. App. 377, 397–98, 61 A.3d 1103 (2013), aff’d, 317 Conn. 845, 120 A.3d 1229 (2015). "We emphasize, however,...