State v. Sabato, 138 A.3d 895

Background

On Nov. 5, 2011, defendant Stephen Sabato sent a text to acquaintance Ian Mason telling him not to give a statement to police investigating a stolen cell phone; Mason later gave a statement. The text message itself was not admitted into evidence, but Mason testified about its content.
After learning Mason cooperated, Sabato sent a series of threatening Facebook messages (Nov. 12, 2011) warning Mason he would be "treated like a snitch" and implying physical retaliation. Those Facebook messages were admitted.
Sabato was charged with larceny, attempt to interfere with an officer (Conn. Gen. Stat. §§ 53a-167a & 53a-49), and intimidating a witness (§ 53a-151a). The jury convicted him of attempt to interfere and intimidating a witness; larceny resulted in a mistrial.
The Appellate Court affirmed the intimidating-a-witness conviction but reversed the attempt-to-interfere conviction, concluding § 53a-167a (as construed in State v. Williams) proscribes only physical conduct and fighting words, and the Nov. 5 text contained no fighting words.
The state sought certification to argue that Williams should be expanded to include other categories of unprotected speech (e.g., true threats); Sabato sought certification on sufficiency of evidence for the intimidation conviction. The Supreme Court granted both.
The Supreme Court held the state could not adopt a new "true threat" theory on appeal because it had not pursued that theory at trial, and it affirmed the Appellate Court's judgment as to the intimidation conviction (i.e., intimidation conviction upheld; attempt-to-interfere conviction reversed under the theory actually pursued at trial).

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Sabato)	Held
Whether Williams should be modified to allow § 53a-167a to proscribe true threats and other unprotected speech	Williams should be expanded so § 53a-167a covers true threats and other unprotected verbal conduct	Williams limits § 53a-167a to fighting words and physical conduct; state cannot expand theory on appeal	Court declined to address modification on merits because state changed theory on appeal; state precluded from raising true-threat theory for this conviction
Whether evidence supported attempt to interfere conviction based on the Nov. 5 text	The text, viewed with surrounding conduct (Facebook threats), could be a true threat and thus sufficient	The state never presented a true-threat theory at trial; text alone ("keep your mouth shut") is constitutionally protected and insufficient	Reversed as to attempt to interfere because state prosecuted solely on nonactionable request to not cooperate and did not present true-threat theory at trial
Whether jury instruction on true threats was required / harmless error	If state had relied on true-threat theory, a true-threat instruction would be required but any failure was harmless	Trial court did not instruct because state did not argue true-threat theory; introducing it on appeal violates due process	Because state did not pursue true-threat theory at trial, failure to instruct cannot be remedied on appeal; issue not reached on merits
Whether evidence supported intimidating-a-witness conviction under § 53a-151a	Facebook messages showed Sabato believed an official proceeding was probable and threatened Mason to prevent testimony	Messages showed only general threats about "snitches," not specific intent to prevent testimony or belief that proceeding was imminent	Affirmed: Facebook messages supported finding Sabato believed a proceeding was likely, that Mason could be summoned, and that Sabato intended to influence/deter testimony

Key Cases Cited

State v. Williams, 205 Conn. 456 (construed § 53a-167a to proscribe only physical conduct and fighting words)
State v. Moulton, 310 Conn. 337 (true-threat requirement and need for jury instruction when threats form basis of prosecution)
State v. Ortiz, 312 Conn. 551 (threats can support witness-tampering convictions when defendant believes proceeding likely and intends natural consequence of preventing testimony)
Cole v. Arkansas, 333 U.S. 196 (conviction cannot be sustained on a theory not charged or presented to the jury)
Dunn v. United States, 442 U.S. 100 (due process bars upholding conviction on a theory not presented to jury)