State v. Nowacki
155 Conn. App. 758
Conn. App. Ct.2015Background
- Defendant Michael Nowacki convicted by jury of (1) criminal violation of a protective order (§ 53a-223(a)) for sending a June 15, 2010 e-mail to Suzanne Sullivan and (2) harassment in the second degree (§ 53a-183(a)(2)) for an earlier e-mail to nanny Katelyn (Katie) Waters; acquitted on related disorderly conduct and illegal-use-of-vehicle counts. Sentence: effective five years, execution suspended after 15 months; long-term protective orders entered.
- Facts central to charges: post-divorce custody dispute; defendant repeatedly contacted Waters and Sullivan, seized a leased car, police Officer Casey warned defendant to cease contact; protective orders were issued after arraignment (Feb 24, 2010).
- June 15 e-mail: sent to Sullivan (and others at Darien Times and town attorney) on a topic unrelated to Sullivan; defendant claimed it was intended for reporter Susan Shultz but was misaddressed.
- Defendant appeared pro se at trial and sought subpoenas for many witnesses; court denied most, including reporter Shultz, without articulated reason; court also curtailed the defendant’s testimony about his relationship with Shultz.
- On appeal the court: upheld sufficiency of evidence on the protective-order violation claim, but found the trial court violated the defendant’s compulsory-process/right-to-present-defense rights by refusing Shultz’s subpoena and limiting related testimony; found harassment conviction under § 53a-183(a)(2) unconstitutional as applied and reversed that conviction and ordered a new trial on the protective-order count.
Issues
| Issue | State's Argument | Nowacki's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for criminal violation of protective order (sending June 15 e-mail) | Circumstantial evidence (pattern of numerous prior e-mails; Sullivan’s testimony about past unsolicited emails and distress) permitted a reasonable inference that defendant intended to send the e-mail to Sullivan. | E-mail was sent inadvertently to Sullivan; intended recipient was reporter Susan Shultz — no direct proof of intent to target Sullivan. | Held: Insufficient reason to overturn — evidence was sufficient to support conviction (intent may be inferred from circumstantial proof). |
| Denial of subpoena for Susan Shultz and exclusion of related testimony (compulsory process / right to present a defense) | Denial was harmless because defendant testified he sent the e-mail by mistake and the jury knew other recipients were included; testimony would be cumulative or minimally relevant. | Shultz was uniquely capable of corroborating the mistake theory; exclusion prevented presentation of context and materially impaired defendant’s credibility and defense. | Held: Trial court abused discretion; denial violated defendant’s compulsory-process and Sixth Amendment rights. Error was not harmless beyond a reasonable doubt. Remanded for new trial on protective-order count. |
| Constitutionality as‑applied of § 53a-183(a)(2) (harassment for written communications) — First Amendment challenge | The e-mail’s content and surrounding conduct (prior warnings, demands to cease contact) made it harassing in manner and could be prosecuted. | The harassment conviction rested on the content of a single contractual/administrative e-mail (threats of legal action re: employment), which is protected speech; criminalizing such content as harassment violates the First Amendment. | Held: Conviction under § 53a-183(a)(2) was based on content, and the e-mail was protected speech (not a true threat or other unprotected category). § 53a-183(a)(2) unconstitutional as applied — judgment of conviction for harassment reversed and acquittal rendered. |
| Whether conduct (not content) supported harassment conviction given prior oral warnings (contextual/manner argument) | Officer Casey’s warning and Waters’ requests to stop made the e-mail part of a harassing course of conduct; a single communication can be harassing when contextualized. | No protective order or statutory restriction existed at time; Casey’s admonition did not convert into a lawful prohibition; single contractual e-mail about alleged breaches does not fall into unprotected speech or satisfy manner-of-communication standard. | Held: Context did not place the e-mail into an unprotected category nor render a single contractual demand e-mail criminally harassing. Conviction overturned. |
Key Cases Cited
- State v. Fagan, 280 Conn. 69 (Conn. 2006) (defines general intent and allowing intent to be inferred from conduct and circumstantial evidence)
- Washington v. Texas, 388 U.S. 14 (U.S. 1967) (compulsory process right applies to state prosecutions)
- United States v. Valenzuela-Bernal, 458 U.S. 858 (U.S. 1982) (defendant must plausibly show how missing witness testimony would be material and favorable)
- State v. Winot, 294 Conn. 753 (Conn. 2010) (an accused’s own words are compelling evidence of intent; intent often inferred from conduct)
- State v. LaFontaine, 128 Conn. App. 546 (Conn. App. 2011) (statute cannot be applied where prosecution rests entirely on content of speech; First Amendment limits)
- State v. Moulton, 310 Conn. 337 (Conn. 2013) (content may be considered as part of the "manner" when the speech is unprotected; limits on consideration of protected speech)