State v. Sabato

321 Conn. 729

138 A.3d 895

STATE of Connecticut

v.Stephen M. SABATO.

No. 19406

No. 19407.

Supreme Court of Connecticut.

Argued Dec. 8, 2015.

Decided June 28, 2016.

Jacob L. McChesney, special deputy assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Sean P. McGuinness, assistant state's attorney, for the appellant in Docket No. SC 19406 and the appellee in Docket No. SC 19407 (state).

Glenn W. Falk, Madison, assigned counsel, with whom, on the brief, was Victoria R. Pasculli, law student intern, for the appellee in Docket No. SC 19406 and the appellant in Docket No. SC 19407 (defendant).

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

PALMER, J.

A jury found the defendant, Stephen M. Sabato, guilty of attempt to interfere with an officer in violation of General Statutes §§ 53a–167a (a)¹ and 53a–49 (a)(2),² and intimidating a witness in violation of General Statutes § 53a–151a (a)(1).³ The defendant's conviction of attempt to interfere with an officer was predicated on a text message that the defendant had sent to a friend instructing him not to cooperate with police officers who were investigating the defendant's involvement in the theft of a cell phone; the conviction of intimidating a witness was predicated on a series of threatening messages that the defendant had sent to the same friend through Facebook, an online social networking service, after learning that he had cooperated with the police about the cell phone theft. The Appellate Court affirmed the defendant's conviction of intimidating a witness notwithstanding the defendant's claim that the evidence was insufficient to support his conviction of that offense. State v. Sabato, 152 Conn.App. 590, 597, 600, 98 A.3d 910 (2014). The Appellate Court reversed the defendant's conviction of attempt to interfere with an officer, however, after concluding that, under State v. Williams, 205 Conn. 456, 534 A.2d 230 (1987), fighting words⁴ are the only form of speech proscribed by § 53a–167a, and the defendant's text message contained no such language. State v. Sabato, supra, at 595–96, 600, 102 A.3d 1113. We granted the state's petition for certification to appeal on three issues, one of which is whether this court should “modify State v. Williams, [supra, 205 Conn. 456, 534 A.2d 230 ], to proscribe not only fighting words, but also true threats⁵ and other categories of unprotected speech....”⁶ (Footnote added; internal quotation marks omitted.) State v. Sabato, 314 Conn. 938, 102 A.3d 1114 (2014). We granted the defendant's petition for certification to appeal, limited to the issue of whether the Appellate Court properly determined that there was sufficient evidence to convict him of intimidating a witness. State v. Sabato, 314 Conn. 938, 938–39, 102 A.3d 1113 (2014).

We conclude that the state is precluded from arguing that the defendant's text message constituted a true threat because the state never pursued such a theory of guilt at trial. See, e.g., Cole v. Arkansas, 333 U.S. 196, 200, 68 S.Ct. 514, 92 L.Ed. 644 (1948) (“[t]o sustain a conviction on grounds not charged in the information and which the jury had no opportunity to pass [on], deprives [a defendant] of a fair trial and a trial by jury, and denies [him] that due process of law guaranteed by the [fourteenth] [a]mendment to the United States [c]onstitution” [internal quotation marks omitted] ). The state argued, rather, that the defendant committed the crime of attempt to interfere with an officer merely by asking his friend not to give a statement to the police, expression that the state acknowledges is constitutionally protected and, therefore, outside the purview of § 53a–167a (a). Indeed, because the state never argued that the defendant's text message was a true threat, the trial court did not instruct the jury on the definition of such a threat, as it would have been constitutionally required to do if the state had made such an argument. See, e.g., State v. Moulton, 310 Conn. 337, 362–63, 78 A.3d 55 (2013) (“to ensure that a prosecution ... does not run afoul of the first amendment, the court must instruct the jury on the difference between protected and unprotected speech whenever the state relies on the content of a communication as substantive evidence of a [crime]”). With respect to the defendant's appeal, we conclude that the evidence supported his conviction of intimidating a witness. Accordingly, we affirm the judgment of the Appellate Court.⁷

The opinion of the Appellate Court sets forth the following facts, which the jury reasonably could have found. “On November 4, 2011, Jazmyn Lopez–Gay, accompanied by the defendant and other friends, visited a nightclub in [the city of] Danbury. While at the nightclub, her cell phone was stolen. The following day, she used an application on her computer to track the cell phone's location that indicated that it was near the Danbury [Fair] [M]all [mall]. She then called the Danbury police, who went to look for the cell phone but were unable to find it.

That same day, November 5, 2011, the defendant called Ian Mason, an acquaintance, and asked him to pick him up and drive him to the ... mall. During that trip, the defendant sold Mason the cell phone. Because the cell phone was password protected, Mason was unable to access its functions or its contents. Seeking to gain access, Mason contacted Michael Barbour, a friend who used to perform work servicing cell phones, and brought the cell phone to his home in [the town of] Newtown.

“Meanwhile, occurring parallel to these events, Lopez–Gay again used the tracking application on her computer, which indicated that her cell phone was located at Barbour's home.... Lopez–Gay then called the Newtown Police Department, [which] sent ... [O]fficer Michael McGowan to that location. Once there, McGowan spoke with Mason, who relinquished the cell phone.

“Later that night, Mason went to the Newtown Police Department. He was questioned by a police officer and eventually provided a sworn, written statement recounting how he came to possess the cell phone. Around this time, Mason sent a text message to the defendant telling him that he was at the police station. In response, the defendant sent a text message to Mason telling him not to write a statement and to ‘keep [his] mouth shut.’ The message scared Mason and caused him to hesitate before making his statement.

“At some point, the defendant discovered that Mason had made a statement to the police. On November 12, 2011, the defendant sent Mason a series of threatening Facebook messages. The messages shared similar content. In one message, the defendant wrote: ‘U wrote a statement regardless. Hearsay is nothing they can't arrest u unless they have a statement and that's what u did u wrote a fucking statement.... I thought we were straight and u wouldn't be dumb enough to write a statement after telling u that day what we did to the last snitch. Ur a snitch kid that's what it comes down to and ur gonna get treated like a snitch u wrote that statement u best be ready for the shit u got urself into. U think it's a fuckin game and all this is fine and [we're] gonna be cool cause u got scared when the cops pressed u and u folded like every other snitch when they had NOTHING on either of us. U fucked up I'd watch out if I were u my boys are real pissed at u for this knowing I'm already in enough shit [as] it is. Don't worry about me worry about them period.’

“The defendant was charged with larceny in the fifth degree, attempt to interfere with an officer, and intimidating a witness.” (Footnote omitted.) State v. Sabato, supra, 152 Conn.App. at 592–94, 98 A.3d 910.

The charge alleging that the defendant had attempted to interfere with an officer was predicated solely on the November 5, 2011 text message that the defendant had sent to Mason instructing him not to give a statement to the police. The charge alleging that the defendant had intimidated a witness was based on the November 12, 2011 Facebook messages that he sent to Mason after he learned that Mason had given a statement to the police. Although the Facebook messages were admitted into evidence, the text message was not. The assistant state's attorney (prosecutor) questioned Mason about the contents of the text message, however, during the following colloquy:

“Q. ... After you texted the defendant and told him that you were at the police station, what did he respond with?

“A. He asked me not to write a statement.

* * *

“Q. Did he tell you to keep your mouth shut?

“A. Yes.”

Thereafter, during closing arguments, the prosecutor, in addressing the charge of attempt to interfere with an officer, argued that, when Mason “[went] down to the police station, [he] ... indicates to the defendant that he is ... there and ... they have some sort of conversation, through text message, and the defendant indicates to him, you know, don't give a statement to [the] police.” The prosecutor then explained that, in order to find the defendant guilty of attempt to interfere with an officer, the jury must find that, “when the defendant sent those text messages to ... Mason, he was attempting to hinder [the] investigation [by telling Mason], ‘don't cooperate with the police....’ [T]hat's a substantial step; he didn't complete it, but he took that step. He is guilty of attempt to interfere with an officer.” The prosecutor further argued that “the defendant is charged with attempted interference; he's not charged with interfering, and this is important because no one in this courtroom, especially me, is going to claim that the defendant was successful in his attempt to interfere with this investigation. In fact, he was unsuccessful, which led to the Facebook messages, which I'll be getting to a little bit later....”

With respect to the charge of intimidating a witness, the prosecutor argued that, to find the defendant guilty of that offense, the jury must find...