State v. Taveras

342 Conn. 563

271 A.3d 123

STATE of Connecticut

v.Kerlyn M. TAVERAS

SC 20496

Supreme Court of Connecticut.

Argued November 16, 2021

Officially released March 29, 2022

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III and Sharmese L. Walcott, state's attorneys, for the appellant (state).

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

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

KAHN, J.

The principal issue in this case is whether the first amendment to the United States constitution protects certain allegedly threatening remarks made by the defendant, Kerlyn M. Taveras, to the employees of his son's preschool in Danbury. In this certified appeal, the state claims that the Appellate Court incorrectly concluded that the evidence contained in the record precluded application of the true threats exception and, as a result, improperly reversed the judgments of the trial court revoking the defendant's probation pursuant to General Statutes § 53a-32 on the basis of that evidence. The defendant, in response, argues that the Appellate Court's analysis on the point was sound, and that his conduct on the day of the incident in question warrants first amendment protection. For the reasons that follow, we agree with the state and, accordingly, reverse the judgment of the Appellate Court.

The following evidence, adduced at the defendant's probation revocation hearing, and procedural history are relevant to our consideration of this appeal. The record establishes that the defendant had been previously charged with, and pleaded guilty to, the following offenses in three separate criminal cases: (1) threatening in the second degree in violation of General Statutes § 53a-62 (a) (3) in connection with an incident that occurred on or about September 17, 2009; (2) assault in the third degree in violation of General Statutes § 53a-61 (a) (1) in connection with an incident that occurred on or about June 30, 2011; and (3) threatening in the second degree in violation of § 53a-62 (a) (3) in connection with an incident that occurred on or about July 28, 2011. The trial court accepted those pleas and, on August 22, 2012, imposed a total effective sentence on those charges of three years of incarceration, execution suspended after twelve months, followed by three years of probation.¹ The defendant's term of probation on these charges began on July 1, 2013. On August 28, 2012, and then again on April 25, 2013, the defendant agreed to the standard conditions of probation set forth on Judicial Branch Form JD-AP-110. Those conditions expressly prohibited the defendant from, among other things, "violat[ing] any criminal law of the United States, this state or any other state or territory."

On March 11, 2014, approximately eight months into his term of probation, the defendant precipitated an incident at his son's preschool in Danbury. The evidence contained in the record about that event comes almost exclusively from two distinct sources: (1) testimony from the preschool's director, Monica Bevilaqua; and (2) an affidavit from the defendant's probation officer, Christopher Kelly, dated April 17, 2014, requesting the issuance of a warrant for a violation of the defendant's probation.² We review these two accounts in turn.

First, Bevilaqua testified that the defendant's son was one of about four hundred students enrolled at the preschool and that his child's scheduled hours were 8:30 a.m. to 4 p.m. Shortly after 4 p.m. on March 11, 2014, Bevilaqua, who was not then physically present at the preschool, received a call from her staff informing her that the defendant was late for pickup. Pursuant to standard policy, preschool staff had reached out to the defendant by phone to ask where he was. Bevilaqua testified that the defendant was "not happy" about this call but that he had, nonetheless, told staff that he was on his way.

According to reports from Bevilaqua's staff, the defendant eventually arrived at the preschool at approximately 4:40 p.m. in an "already escalated" emotional state, went down to his child's classroom, and then began arguing with staff on his way out. Sondra Cherney, the preschool's assistant education manager, then said something to the defendant as he was exiting the preschool through a set of locked doors. Bevilaqua testified that, in response to Cherney's comment, the defendant turned around and said, "you better watch yourself, you better be careful ...." Bevilaqua indicated that the defendant then "tried to get back in the door and couldn't, and then he left."

Other portions of Bevilaqua's testimony provide the following additional factual context. Bevilaqua indicated that this situation was not the staff's first "escalated interaction" with the defendant. Although the details of these previous interactions were not expressly drawn out at the hearing, Bevilaqua clearly testified that she herself had previously witnessed the defendant acting in a threatening manner. Indeed, Bevilaqua stated that she made the decision to return to the preschool as soon as she heard that the defendant was going to be late because she "knew it would get escalated." When she got to the preschool, she found that members of her staff were "shaken up" and "concerned" by what had transpired. Bevilaqua also stated that, in order to protect those at the preschool, she immediately contacted the police, formally prohibited the defendant from reentering the preschool, began pursuing a restraining order, and hired a police officer for additional security the following day.

Kelly's affidavit provides the following similar account of events: "[On March 11, 2014, police officers were] dispatched to [a preschool for] a dispute involving [the defendant]. [The defendant] was forty minutes late picking up his child ... and [was] ... reminded ... that he needed to pick his child up on time. [The defendant] became extremely agitated and began to argue with staff. Staff told [the defendant] that he had to leave because he was arguing with staff in the front lobby in front of other children and their parents. [The defendant] then yelled to the staff ‘you better watch your back.’ Staff reported ... that [the defendant] was so enraged and intimidating that the school hired a police officer for security the next morning in the event [the defendant] came back. [The defendant] agreed to meet [police officers] the next morning and was arrested for breach of [the] peace. [The defendant] was advised not to return to the school again, otherwise he would be arrested for criminal [t]respass."

The state subsequently sought revocation of the defendant's probation as a result of the defendant's conduct on March 11, 2014.³ During the hearing that followed, the state proceeded on the theory that the foregoing testimony and evidence were sufficient to prove that the defendant had violated the terms of his probation by committing breach of the peace in the second degree, in violation of General Statutes § 53a-181 (a).⁴

On the basis of this testimony, the trial court found that the state had met its burden of proving, by a preponderance of the evidence, that the defendant had violated the standard terms of his probation by violating § 53a-181 (a). In ruling in favor of the state on the adjudicatory phase of the proceeding, the trial court explicitly found that the defendant had exhibited a "threatening nature and demeanor" and that his conduct had caused Bevilaqua to contact the police. In its ruling, the trial court acknowledged, and implicitly rejected, defense counsel's argument that the facts of the present case demonstrated nothing more than that "[a person] being upset with the way [a] daycare ... handles [his] child ...." After the dispositional phase of the hearing, the trial court rendered judgments revoking the defendant's various terms of probation and sentenced him to a total effective term of eighteen months of incarceration.

The defendant then appealed from the trial court's judgments to the Appellate Court, claiming, inter alia, that the evidence presented at his probation revocation hearing was insufficient to support a finding that he had violated the terms of his probation. State v. Taveras , 183 Conn. App. 354, 357, 193 A.3d 561 (2018). Specifically, the defendant argued that the state's evidence was insufficient to establish that his remarks constituted a true threat and, therefore, that they warranted first amendment protection. Id., at 357–58, 193 A.3d 561. The Appellate Court, in a split decision, agreed with the defendant and reversed the judgments of the trial court, reasoning that the defendant's remarks did not convey an explicit threat and that the state had failed to provide sufficient context to resolve the resulting ambiguity. See id., at 380–81, 193 A.3d 561. Judge Elgo authored a dissent in which she concluded that, in light of the lower standard of proof applicable to probation proceedings, there was sufficient evidence to support the trial court's revocation of the defendant's probation. Id., at 387–88, 193 A.3d 561. This certified appeal followed.⁵

The standard of review and constitutional principles governing our review of the Appellate Court's true threats analysis are well established. "The [f]irst [a]mendment, applicable to the [s]tates through the [f]ourteenth [a]mendment, provides that Congress shall make no law ... abridging the freedom of speech. The hallmark of the protection of free speech is to allow free trade in ideas—even ideas that the overwhelming majority of people might find distasteful or discomforting. ... Thus, the [f]irst [a]mendment ordinarily denies a [s]tate the power to prohibit dissemination of social, economic and political doctrine [that] a vast majority of its citizens believes to be false and fraught with evil consequence ....

"The protections afforded by the [f]irst [a]mendment, however, are...