State v. CulmoState v. Culmo
- Reporters:
- , , ,
- Before:
- Lavine
The defendant, Robert F. Culmo, Jr., who is charged with two counts of stalking in the second degree in violation of General Statutes § BSa-lSld,
1
moved pursuant to
For the following reasons, the court finds that § 53a-181d, while not entirely free from ambiguity, is sufficiently definite to enable a person of common intelligence to know what conduct is prohibited. The motions to dismiss are denied because the defendant has failed to meet his significant burden of demonstrating that the statute is unconstitutional.
The defendant was arrested in December, 1992, on a warrant alleging that he had committed two counts of stalking in the second degree in violation of § 53a-181d. The affidavit in support of the arrest warrant application recited the following allegations: On November 16, 1992, the alleged victim complained to the Clinton police department that she had been followed by the defendant, her neighbor, while she had gone shopping on October 23 and October 25 of that year. The complaint stated that on October 23, the defendant had followed her while she was shopping at a local Stop & Shop. The complainant stated that the defendant left the store before her, and that when she went out to her car, she noticed the defendant sitting in his car two rows behind where she was parked, with the motor of his car running. The complainant stated that she put her groceries in her car and waited, and that the defendant drove around the parking lot and parked a *49 couple of spaces behind her. The complainant told the police that she then drove out of the shopping center parking area and headed home. The defendant followed very close behind her, almost running into her vehicle. The complainant evaded the defendant, however, and drove home.
On October 25,1992, according to the complainant, she was shopping at another grocery store when she noticed the defendant following her in the aisles. She looked outside the store window and saw that the defendant’s car was parked alongside her car.
The complainant stated that she feared that the defendant was going to do something to her. She stated also that the defendant drives or walks up and down her street, which is at the rear of his property. According to the affidavit, the complainant further stated that her husband had filed a complaint with the Connecticut state police alleging that the defendant had run him off the road. Based on these allegations, and others, issuance of an arrest warrant was authorized.
Following the granting of a portion of the defendant’s motion for a bill of particulars dated January 29, 1993, seeking more information about the offenses alleged, the state, on Feburary 19, 1993, filed a substitute information, the present charging document, accusing the defendant of two counts of stalking in the second degree. Count one charged that “at the Town or City of Clinton, in the vicinity of 215 East Main Street on or about the 23rd day of October, 1992, the said Robert Culmo, Jr., at around 8 p.m., with intent to cause reasonable fear for the physical safety of another person, namely Kathleen Banks, while said Culmo was in a motor vehicle and on foot, did willfully and repeatedly follow and lie in wait for Kathleen Banks, in a manner likely to cause another person, *50 namely Kathleen Banks, to reasonably fear for her physical safety, all in violation of Section 53a-181d of the Connecticut General Statutes.”
The second count charged that the state “further accuses Robert Culmo, Jr., of stalking and charges that at the Town of Clinton at 266 East Main St., on or about the 25th day of October, 1992, around 7:45 a.m., the said Robert Culmo, Jr., with intent to cause reasonable fear for the physical safety of another person, namely Kathleen Banks, while said Culmo was in a motor vehicle and on foot, did willfully and repeatedly follow and lie in wait for Kathleen Banks in a manner likely to cause another person, namely Kathleen Banks, to reasonably fear for her physical safety, all in violation of Section 53a-181d of the Connecticut General Statutes.”
The substitute information contained allegations in both counts that the stalking allegedly occurred while the defendant “was in a motor vehicle and on foot,” allegations not made in the first information filed.
In both motions to dismiss dated February 4, 1993, and April 8,1993, and the supporting memoranda, the defendant asserted that the stalking statute violated the due process guarantees of the United States and Connecticut constitutions. The state filed a responsive memorandum on April 23,1993, to which the defendant replied with another submission dated April 30, 1993. Oral argument was held on May 4,1993. Following argument, the court requested that the defendant file another memorandum outlining with specificity what first amendment freedoms, or other fundamental constitutional guarantees, were claimed to be implicated by § 53a-181d. By a memorandum dated May 13, 1993, the defendant attempted to do so.
*51 The defendant raises three closely related claims. The first is that § 53a-181d is so vague that the defendant cannot understand what conduct it prohibits. Asserting that the statute implicates fundamental constitutional guarantees, the defendant urges the court to consider the facial validity of the statute, not merely its vagueness as applied to him. Second, but closely related, the defendant argues that the statute is overly broad. The defendant claims that its language brings within its reach constitutionally protected conduct under the first amendment to the United States constitution—as well as the stalking conduct it seeks to make unlawful—and that it should therefore be declared unconstitutional as an encroachment on these protected activities. Third, the defendant contends that the statute’s claimed lack of clarity invites abuse by police authorities and prosecutors who must implement it by granting them “unfettered discretion.”
Prior to discussing the defendant’s claims, a brief discussion of the legislative background of the stalking statute would be helpful. DeFonce Construction Corp. v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985).
Spurred by problems that both celebrities and private citizens were having, California was the first state to pass a stalking law. In 1992, Connecticut’s legislature followed suit, enacting
*52
Testifying in favor of the stalking statute, Representative Thomas Luby, a principal sponsor, asserted that the proposed legislation “fills a gap” existing between the harassment statutes;
The first question to be answered is whether the defendant has standing to raise the claim that
In determining whether the defendant has standing to attack
When a defendant attacks a statute as being void due to vagueness, normally, a court limits its inquiry to the statute’s impact as applied to the facts of the case before it. State v. Perruccio, 192 Conn. 154, 158, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984); State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984). This rule is intended to prevent courts from being put in the undesirable position of “considering every conceivable situation which might possibly arise in the application of complex legislation.” State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980).
When a challenged statute, however, if vague, could intrude on “fundamental constitutional guarantees,” particularly first amendment freedoms, a facial anal *54 ysis is undertaken because of the important nature of the rights involved. Id., 57-58 n.3; see also State v. Proto, 203 Conn. 682, 526 A.2d 1297 (1987); State v. Cavallo, 200 Conn. 664, 670, 513 A.2d 646 (1986). A statute that fails to delineate clearly the conduct being criminalized has a “chilling effect” on the exercise of first amendment liberties. Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Thus, a defendant is permitted to challenge a statute’s application to situations other than his own because such challenges will tend to vindicate the rights of others who might limit their lawful activities due to the statute’s ambiguities. State v. Williams, 205 Conn. 456, 470 534 A.2d 230 (1987).
Typically, facial vagueness challenges have been entertained by courts confronting claims that a statute explicitly or implicitly affects recognized first amendment rights. See, e.g.,
State
v.
Proto,
supra, 203 Conn. 696 (facial void for vagueness analysis applied to Connecticut Campaign Financing Act);
State
v.
Cavallo,
supra, 200 Conn. 664 (facial void for vagueness challenge to
While the void for vagueness analysis is most commonly undertaken in the first amendment context, the language of
Pickering
and
Cavallo
make it clear that such analysis may also be appropriate when a challenged statute, if vague, could intrude on “fundamental constitutional guarantees” other than first amendment
*55
rights.
State
v.
Pickering,
supra, 180 Conn. 57, states that vagueness analysis should be limited to the particular facts of a case unless the statute “intrudes on
fundamental constitutional guarantees.”
(Emphasis added.)
State
v.
Cavallo,
supra, 200 Conn. 670, states that the court will limit its inquiry to a statute’s applicability to the facts of the case except when a statute “could intrude
on fundamental constitutional guarantees
such as first amendment rights . . . .” (Emphasis added.) In deciding whether the defendant has standing to mount a vagueness attack against
The defendant claims that the statute implicates numerous basic constitutional liberties and first amendment rights. Specifically, the defendant argues that
The court agrees that, on its face,
By its title and its terms, the stalking statute implicates the right to move about freely in public. Webster’s
*56
Ninth New Collegiate Dictionary defines “stalk” as “to pursue quarry or prey stealthily.” The statute prohibits repeated “following” and lying in wait with the requisite intent. The substitute information in the present case, in both counts, charges the defendant with repeatedly following the complainant while “in a motor vehicle” and “on foot.” The affidavit in support of the arrest warrant makes it clear that the “following” alleged against the defendant all occurred in public places where the defendant would normally have a right to be: at a Stop & Shop, in the Stop & Shop parking lot, on the highway (first count), and at a Waldbaum’s Foodmart (second count). Moreover, some of the conduct occurred in the context of the defendant’s traveling to and from his own residence. The act of “following,” in and of itself, can be quite neutral. One can follow someone coincidentally, or intentionally, but with benign intentions. In the present prosecution, where the defendant was traveling, why, and with what intention are all at issue. Whether the defendant had a lawful purpose to go where he did when he did is at the heart of the case. His right to move about freely in the community on public streets, in public places and in the vicinity of his home is clearly implicated by
The “right to travel” at issue in the present case is an outgrowth of earlier cases examining the right to travel abroad, and viewing the right as a “liberty” interest that is “basic in our scheme of values.” Kent v. Dulles, 357 U.S. 116, 125-26, 78 S. Ct. 1113, 2 L. Ed. 2d 1204 (1958); see also Aptheker v. Secretary of State, 378 U.S. 500, 84 S. Ct. 1659, 12 L. Ed. 2d 992 (1964). In Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), the United States Supreme Court struck down, on equal protection grounds, a minimum durational residency requirement for welfare benefits, finding it encumbered the “fun *57 damental” right to travel between states. In 1971, faced with a challenge to a durational residency requirement imposed by the municipal housing authority of New Rochelle, New York, for admission to public housing, the United States Court of Appeals for the Second Circuit ruled that “[i]t would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.” King v. New Rochelle Municipal Housing Authority, 442 F.2d 646, 648 (2d Cir.), cert, denied, 404 U.S. 863, 92 S. Ct. 113, 30 L. Ed. 2d 107 (1971). The King court noted that the United States Supreme Court in Shapiro had refused to ascribe the source of the travel right to any particular constitutional provision, including the first amendment, relying instead on “our constitutional concepts of personal liberty. . . .” Shapiro v. Thompson, supra, 394 U.S. 629.
Approximately one year after King, in Nicholls v. Schaffer, 344 F.Sup. 238 (D. Conn. 1972), another equal protection challenge to a durational residency requirement that encumbered the right to vote, a federal district court implicitly recognized the right to intrastate travel.
Then in 1984, in Bruno v. Civil Service Commission, 192 Conn. 335, 472 A.2d 328 (1984), yet another case examining a durational residency requirement, the Connecticut Supreme Court explicitly recognized “a fundamental right to intrastate travel. . . .” Id., 347. The court did not state precisely what the source of this right was. See also Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983), involving a vagueness challenge to an antiloitering statute, in which the United States Supreme Court made reference to “the constitutional right to freedom of movement” arguably implicated by the statute. Id., 358.
*58 Perhaps the most detailed analysis of the right to intrastate travel, in the context of a criminal case, is contained in Lutz v. York, supra, 899 F.2d 255. In Lutz, the court considered an ordinance outlawing “cruising,” which consisted of driving repeatedly around on certain public roads. The court concluded that what was at issue was “the right to travel locally through public spaces and roadways,” finding that the right protected travel on foot and in an automobile. Id., 268. The court concluded that “the right to move freely about one’s neighborhood or town, even by automobile, is indeed ‘implicit in the concept of ordered liberty’ and ‘deeply rooted in the nation’s history,’ ” and found that a “fundamental right” was at issue. Id., 268-69. The court specifically declined to locate the right in the first amendment, finding that it was instead a due process right. Id., 267.
In light of
Bruno, Lutz,
and the other cases cited previously, the language of the statute, the legislative history, and the allegations as set out in the substitute information and affidavit in support of the arrest warrant, the court concludes that the defendant’s right to intrastate travel is implicated in the present prosecution,
5
that the right is fundamental, and that he, therefore, has standing to raise a claim that
In analyzing the statute to determine if it is void for vagueness, the court is guided by the fundamental precept that it is unfair to subject someone to prosecution if the law defining the offense fails to give adequate notice of what conduct is prohibited.
As stated by the United States Supreme Court in Connally v. General Construction Co., 269 U.S. 385, *59 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926): “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”
A vague law “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis,” if it does not clearly indicate what conduct is criminal and what is not. Grayned v. Rockford, supra, 408 U.S. 108-109; see also State v. Schriver, 207 Conn. 456, 459-60, 542 A.2d 686 (1988); State v. Proto, supra, 203 Conn. 695-96. 6 The requirement of definiteness applies “more strictly to penal laws than to statutes that exact civil penalties.” State v. Schriver, supra, 460. Moreover, the accused is entitled to have a penal statute strictly construed in his favor. State v. Whiteman, 204 Conn. 98, 101, 526 A.2d 869 (1987).
Notwithstanding these accepted principles, a heavy presumption of constitutionality attaches to a law enacted by the legislature. As the Supreme Court has stated: “The party attacking a validly enacted statute, however, bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality. ... In choosing between two constructions *60 of a statute, one valid and one constitutionally precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature‘s underlying intent.‘’ State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989).
Because almost all language is inherently ambiguous to some degree, 7 “mathematical certainty” can never be obtained in the drafting of a statute. Grayned v. Rockford, supra, 408 U.S. 110; State v. Proto, supra, 203 Conn. 698. (“Ambiguity is, unfortunately, a common statutory ailment. ... If the meaning of a statute can fairly be ascertained through judicial construction, however, it need not be stricken for vagueness.”) Laws can be “general in nature” and still not be found to be vague if they provide sufficient certainty to give fair notice as to what conduct is prohibited. State v. Chetcuti, 173 Conn. 165,167, 377 A.2d 263 (1977). “It is not necessary that a statute list the precise actions prohibited by it” to survive a vagueness attack. State v. Eason, supra, 192 Conn. 47; see also State v. White, 204 Conn. 410, 415-16, 528 A.2d 811 (1987).
Analysis of the language of
*61
In undertaking analysis of these elements, the court is guided by
Section 53a-181d requires that the accused act with the specific intention of causing another person to fear for his “physical safety.” The term “physical safety” is not defined. 8 Webster’s Ninth New Collegiate Dictionary defines “physical” as meaning “of or relating to the body,” and “safety” as meaning “the condition of being safe from undergoing or causing hurt, injury, or loss.” When the statute is construed as a whole; Mitchell v. King, 169 Conn. 140, 363 A.2d 68 (1975); it can be seen that the term “physical safety” is used in § 53a-181d in contradistinction to emotional or psychological safety. It requires a finding by the trier of fact that a person charged under the statute has acted with the intention of causing a victim to fear that he or she could be subjected to bodily harm in some way. The fact that the statute creates a specific intent requirement significantly vitiates any claim that its purported vagueness could mislead a person of common intelligence into misunderstanding what is prohibited. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 *62 U.S. 489, 491,102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982); State v. Cavallo, supra, 200 Conn. 672.
The term “wilful” has a variety of shades of meaning depending on the context of its use, but it is not unduly vague as used in § 53a-181d. As the Supreme Court stated in Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935), one acts wilfully when one performs an act in a manner that is “intentional, wrongful and without just cause or excuse” and with “an evil intent or guilty purpose to violate the law.” See also State v. Proto, supra, 203 Conn. 703. Unless the actor has a bad purpose, wilfulness is not present.-(Screws v. United States, 325 U.S. 91, 101, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945).
Section 53a-181d requires that a perpetrator act “repeatedly” in stalking a victim before he or she can be charged. The defendant claims that the term “repeatedly” is ambiguous. The court does not agree.
Webster’s Ninth New Collegiate Dictionary defines “repeatedly” as meaning “again and again.” Acting “repeatedly” in the context of the statute means precisely what the commonly approved usage of the word suggests—acting on more than one occasion. An isolated act of “following” or “lying in wait” cannot constitute “stalking.”
It is true that determining when a single course of continuous conduct has devolved into “repeated” conduct may not always be simple. For example, if an individual follows another person to the local drug store, waits outside while the person goes in, and then resumes following the person, has only one act of following occurred, or is the following “repeated”? The statute does not attempt to place boundaries of time, or space, around the proscribed repetitive conduct. In leaving these parameters undefined, however, § 53a-181d is no different from many statutes that leave *63 equally vexing questions unaddressed. The question of whether a defendant has been “repeatedly” following or lying in wait for a victim is a question best reserved for the deliberations of the trier of fact, considering all of the evidence in the case.
A wilful and repeated “following” or “lying in wait” is required to constitute a violation of the statute. Webster’s Ninth New Collegiate Dictionary defines “follow” to mean “to go, proceed, or come after” and “pursue in an effort to overtake.” As used in § 53a-181d, which requires that any “following” be “wilful” and “repeated,” the “following” must have a predatory thrust to it. The statute does not encompass “following” that is aimless, unintentional, accidental or undertaken for a lawful purpose. Of course, “following” implies proximity in space as well as time. Whether someone has deliberately maintained sufficient visual or physical proximity with another person, uninterrupted, over a substantial enough period of time to constitute “following” will depend upon a variety of differing factors in each case. These are appropriate issues for the trier of fact to decide, not this court.
Language has its limits. Such ambiguities as exist in the use of the word “follows” are not sufficient to render its meaning incomprehensible to a person of common intelligence.
The statute can also be violated by repeatedly “lying in wait.” “Lying in wait” is an ancient phrase with a widely understood meaning in the context of various statutes defining first degree murder. Black’s Law Dictionary (6th Ed. 1990) defines “lying in wait” to mean “[l]ying in ambush; lying hidden or concealed for the purpose of making a sudden and unexpected attack upon a person when he shall arrive at the scene.” See also annot., 89 A.L.R.2d 1142 (1963). “ ‘Lying in wait’ as a legal concept has physical and mental elements. *64 Those generally stated are the physical ones of waiting, watching, and secrecy or concealment, and the mental one of purpose or intent to inflict bodily injury or to kill another unawares.” Id.
The phrase “lying in wait” is no stranger to Connecticut law. Prior to repeal, Connecticut’s homicide statute,
The term has repeatedly been examined by courts throughout the country, particularly by courts construing California’s homicide statute, which states that murder perpetrated by “lying in wait” is murder of the first degree.
It is noteworthy that Connecticut’s criminal attempt statute,
The defendant argues that § 53a-181d is vague because in requiring that the victim’s fear of harm be *65 reasonable, it is not clear if an objective or subjective standard is involved. Referring to State v. DeJesus, 194 Conn. 376, 481 A.2d 1277 (1984), concerning the use of self-defense where one has a “reasonable belief” it is necessary, the defendant claims that the possible use of a subjective standard will subject innocent defendants to extreme allegations made by hypersensitive victims. DeJesus makes it clear, however, that in the context of self-defense, the test for the degree of force permitted is “both subjective and objective.” Id., 389 n.13. “The jury must view the situation from the perspective of the defendant. . . . [Hjowever . . . the defendant’s belief ultimately must be found to be reasonable.” Id.; see also State v. Shaw, 185 Conn. 372, 376-77, 441 A.2d 561 (1981), cert, denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982). There is no reason to conclude that the standard to be applied in the context of stalking victims would be signficantly different from the subjective-objective standard used in the context of self-defense cases such as DeJesus. See also State v. Raguseo, 225 Conn. 114,126-28, 622 A. 2d 519 (1993).
The legislature’s decision to focus on the fear created in the victim is not unlike the approach adopted in the kidnapping in the first degree statute,
Nor is there anything unusual in the legislature’s decision to require that the trier of fact evaluate whether a victim’s fear for his or her physical safety is “reasonable.” Connecticut’s penal code contains numerous statutes that require analysis of whether an actor’s beliefs are reasonable. See, e.g.,
In the court’s view, on consideration of the statute in its entirety, it cannot be said that a person of common understanding would fail to understand what conduct is prohibited. Section 53a-181d is relatively narrow in scope. It applies only to those who act with the specific intention of causing others to fear for their physical safety. The fear for one’s physical safety must be reasonable. The conduct must be undertaken wilfully, not mistakenly, and it must occur repeatedly. The statute on its face does not implicate speech or expression in any way; 9 it criminalizes conduct only when undertaken with the requisite intent. The court concludes that any ambiguities in the statute’s language are not so significant as to render it void for vagueness. State v. Proto, supra, 203 Conn. 708.
The question arises as to what standard of review the court should apply in determining if the asserted state interest is weighty enough to justify the infringement on the right to move about freely, which § 53a-181d implicates. 10 The approach taken by the *68 Court of Appeals for the Third Circuit in Lutz v. York, supra, 899 F.2d 255, is instructive. In Lutz, the court found that the traffic ordinance in question burdened the right of an individual to move about freely in one‘s community. In determining what standard of review to apply to the ordinance, the court rejected the appellant‘s argument that the statute in question could be upheld only if it promoted a “compelling‘’ state interest. Id., 268-69. The court ruled that applying strict scrutiny to the travel interest there involved would be “just as inappropriate as applying no heightened scrutiny,” and opted to apply the intermediate scrutiny standard used in cases involving the regulation of *69 speech in traditional public fora. The Lutz court said that the concerns underlying York’s cruising ordinance were “highly analogous” to the concerns underlying the time, place and manner approach. Under that approach, a state may impose content-neutral time, place and manner restrictions if they are “narrowly tailored to serve significant government interests—not necessarily compelling ones—while leaving open ample alternative channels of communication.” Id., 269.
The Connecticut Supreme Court, in
State
v.
Proto,
supra, 203 Conn. 692, held that to justify infringing on the right to make campaign contributions, the state must demonstrate “ ‘a sufficiently important interest and employ . . . means closely drawn to avoid unnecessary abridgement of associational freedoms,’ ” quoting
Buckley
v.
Valeo,
424 U.S. 1, 25, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Recently, that court considered what level of state justification was required to uphold the reenacted Hunter Harassment Act,
The analytical framework spawned by the first amendment cases was not designed for a case such as the present one, where a right to move about freely, not rooted in the first amendment, is at issue. The first amendment framework, however, is sufficiently analogous to provide a general approach to analysis.
In the court’s view, whether the approach used in Lutz v. York, supra, 899 F.2d 255, or the formulation put forth in State v. Proto, supra, 203 Conn. 682, or another similar formulation is adopted, § 53a-181d passes muster because the state’s interest in criminalizing stalking behavior is sufficiently important: indeed, it is compelling. It is compelling in protecting citizens from the immediate consequences of stalking behavior. It is compelling in providing law enforcement authorities with a means for intervening in stalking situations *70 early on, before the behavior can escalate into something more serious, including physical assault. And it is compelling in safeguarding the mental well-being of victims. Providing protection from stalking conduct is at the heart of the state’s social contract with its citizens, who should be able to go about their daily business free of the concern that they may be the targets of systematic surveillance by predators who wish them ill. The freedom to go about one’s daily business is hollow, indeed, if one’s peace of mind is being destroyed, and safety endangered, by the threatening presence of an unwanted pursuer.
The right to move about freely, implicated by § 53a-181d, is of necessity a qualified right, restricted by numerous factors, including the need to protect the safety and public order of the community;
Heffron
v.
International Society for Krishna Consciousness,
452 U.S. 640, 650,101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981); the right to control the flow of traffic and manner in which motor vehicles are operated,
Lutz
v.
York,
supra, 899 F.2d 255; and the need to recognize and respect the privacy and property rights of others. See T. Emerson, The System of Freedom of Expression, “Maintaining the Public Peace,” pp. 311-45; see also, e.g.,
In summary, by providing for protection of the victim, maximizing the opportunity for prevention of more serious crime, and providing a tool for intervention by police authorities, § 53a-181d serves numerous interrelated compelling interests. By including a specific
*71
intent requirement, the requirement that the victim’s fear be “reasonable,” and the requirement that the conduct be “repeated” and “wilful,” the statute is narrowly drawn to avoid infringement on protected rights.
State
v.
Cavallo,
supra, 200 Conn. 664; cf
Gormley
v.
Director, Connecticut State Department of Probation,
632 F.2d 938, 941 (2d Cir. 1980) (Connecticut’s telephone harassment statute,
The defendant also attacks § 53a-181d as facially overbroad. He asserts that the statute brings within its reach activities such as news gathering, religious proselytizing and picketing, which are protected by the first amendment. He makes no claim that he himself was engaging in these activities, and, therefore, makes no claim that the statute is overbroad as applied to him.
Before addressing these concerns, the court must determine if the defendant has standing to raise the claim that the statute is overbroad on its face. The court concludes that he does not.
As the Supreme Court noted in State v. Proto, supra, 203 Conn. 706, because the vagueness and overbreadth doctrines are so closely related, they are “[sjometimes . . . functionally indistinguishable.” Note, “The First Amendment Overbreadth Doctrine,” 83 Harv. L. Rev. 844, 845 n.5 (1970). In fact, as one commentator has noted, vagueness and overbreadth are conceptually distinct, because “an overbroad law need lack neither clarity nor precision, and a vague law need not reach activity protected by the first amendment.” L. Tribe, American Constitutional Law, (1978) p. 718. Unlike vagueness analysis, the overbreadth doctrine operates only in the sphere of the first amendment. Schall v. *72 Martin, 467 U.S. 253, 269 n.18, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984); State v. Ayala, 222 Conn. 331, 344 n.12, 610 A.2d 1162 (1992).
The normal rules of standing are relaxed in the first amendment area because of the exalted status of the first amendment and the high value society places on protecting free expression. As explained by the United States Supreme Court in Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973): “It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. . . . As a corollary, the Court has altered its traditional rules of standing to permit—in the First Amendment area—‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”
In State v. Proto, supra, 203 Conn. 707, the Connecticut Supreme Court adopted the standing formulation set out in Members of the City Coucil of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801,104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984), where the court held that a party has standing to raise an overbreadth claim only if there is a “realistic danger that the statute itself will significantly compromise recognized First Amend-
*73 ment protections of parties not before the Court . . . See also Husti v. Zuckerman Property Enterprises, Inc., 199 Conn. 575, 587, 508 A.2d 735 (1986); State v. Rivera, 30 Conn. App. 224, 230, 619 A.2d 1146 (1993).
The task of demonstrating that a statute will significantly compromise recognized first amendment rights of parties not before the court, thus triggering facial overbreadth analysis, is on the defendant. As the United States Supreme Court stated in Clark v. Community for Creative Nonviolence, 468 U.S. 288, 293 n.5, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984), the defendant must bear the burden of demonstrating that the first amendment even applies because to hold otherwise “would be to create a rule that all conduct is presumptively expressive.”
In undertaking this threshold analysis, courts have relied heavily on the distinction between statutes that regulate conduct and statutes that regulate expression.
11
The Supreme Court has held that when a statute proscribes intentional conduct, not speech, the first amendment is not implicated;
State
v.
Williams,
supra, 205 Conn. 474; because conduct is subject to regulation for the protection of society.
Cantwell
v.
Connecticut,
310 U.S. 296, 304, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). A review of Connecticut decisions in which over-
*74
breadth analysis was undertaken indicates that our courts carefully adhere to the approach that over-breadth analysis should be undertaken only in cases in which the words of the statute clearly implicate expressive activity. See, e.g.,
State
v.
Williams,
supra (
In light of the clear teaching of the case law and the language of § 53a-181d, the court concludes that the defendant has not met his burden of demonstrating that he has standing to challenge the statute on overbreadth grounds.
Section 53a-181d can be violated without a defendant’s uttering a syllable, writing a word, or making a gesture. In the present case, the charging document and affidavit in support of the arrest warrant contain no allegations that words, gestures, writings, or expressive conduct were part of defendant’s alleged activities. As noted, the word “harass” does not appear in the statute, having been removed from an earlier draft. *75 Neither does the word “annoy” or “interfere” appear, or any other term that could reasonably be construed to include verbal as well as physical conduct. Just as “a physical assault is not by any stretch of the imagination, expressive conduct protected by the First Amendment”; Wisconsin v. Mitchell, 508 U.S. 476, 484,113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993); neither is “stalking” behavior.
It is of course predictable that in the course of prosecuting cases, the state will introduce evidence of words spoken, writings delivered, or gestures made to prove that a defendant acted with the requisite intent. This is likely to be particularly true in cases involving defendants who have had previous relationships with their victims, e.g., former spouses, former girlfriends, former boyfriends and the like.
Words can be used to prove an intention to violate virtually any penal statute, however, and their use as evidence of crime does not transform a statute criminalizing conduct into a statute implicating protected communication. As the Supreme Court of Oregon pointed out in the context of that state’s “hate crimes” statute, there is a distinction between “making speech the crime itself, or an element of the crime, and using speech to prove the crime. . . .” State v. Plowman, 314 Or. 157,167, 838 P.2d 558 (1992). Further, as the United States Supreme Court ruled recently in upholding a Wisconsin statute creating enhanced penalties for those convicted of “hate crimes,” “[t]he First Amendment .. . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.” Wisconsin v. Mitchell, supra, 508 U.S. 489.
The defendant, therefore, lacks standing to pursue a facial challenge because § 53a-181d does not, on its face, implicate recognized first amendment rights. 12
*76 The defendant argues that § 53a-181d gives “unfettered” discretion to police authorities and prosecutors due to its alleged imprecision.
All criminal statutes require police authorities, and prosecutors, to exercise discretion in deciding when they should be applied, and when they should not. As noted, the statute is relatively narrow in scope and sufficiently explicit to provide guidance as to its proper use. Invoking § 53a-181d against persons engaging in protected speech—such as picketing, news gathering, or proselytizing—would of course be a serious abuse of the statute, unless these activities were being used to camouflage unlawful stalking behavior. While § 53a-181d will require judicious use, the court rejects the claim that it vests unfettered discretion in police authorities and prosecutors.
The defendant has failed to bear his significant burden of demonstrating that § 53a-181d is vague on its face. He lacks standing to mount a facial challenge based on overbreadth. While implicating the right to move about freely, the statute is clearly justified by the state’s compelling interest in criminalizing stalking behavior.
For these reasons, and those previously stated, the defendant’s motions to dismiss are denied.
Notes
General Statues § 53a-181d (a), entitled “stalking in the second degree: class a misdemeanor,” provides: “A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety.”
Stalking in the second degree is a class A misdemeanor, carrying possible maximum penalties of one year imprisonment, a fine of $2000, or both.
Stalking in the first degree is not charged in the present case. It is a class D felony carrying possible maximum penalties of one to five years imprisonment, a $5000 fine, or both.
Because the defendant has provided no separate analysis under the Connecticut constitution, the court will not analyze his claim that § 53a-181d violates the state constitution. See, e.g., State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988).
The state argues that, in light of the limited record in this case, the defendant’s motion should be denied as premature in light of the general rule that the constitutionality of a statutory provision attacked on void for vagueness grounds is determined by application of the provision to the facts at issue. As a consequence of the court’s ruling considering the facial validity of § 53a-181d, the state’s objection to a ruling at this time is rejected.
At least thirty states have enacted stalking statutes, using a wide variety of different formulations. Some statutes require that the stalking behavior be linked with a threat of physical harm. The statute passed by the legislature in California adopts such an approach. It provides in part that: “Any person who wilfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear of death or great bodily injury or to place that person in reasonable fear of death or great bodily injury of his or her immediate family is guilty of the crime of stalking . . . .”
Florida’s legislature enacted a stalking statute that a Florida court recently struck down as unconstitutional. State v. Kahles, Fla. Cir. Ct., 17th *52 Judicial District, Docket No. 92-022819 (March 8, 1993). Florida Statutes Annot. § 784.048 (2), (West 1993 Sup.), provided in relevant part that “[a]ny person who willfully, maliciously, and repeatedly follows or harasses another person commits the offense of stalking . . . .” The statute, which lacks a threat requirement, as well as the kind of specific intent requirement found in the Connecticut stalking law, and could, therefore, be applied to a newspaper reporter gathering news or a private detective investigating someone, was found by the court to be vague and overbroad.
The Massachusetts stalking law, Mass. Gen. L. ch. 265, § 43 (a) (West 1992) provides that “[w]hoever willfully, maliciously, and repeatedly follows or harasses another person and who makes a threat with the intent to place that person in imminent fear of death or serious bodily injury shall be guilty of the crime of stalking . . . .” This statute by its terms does not require that the threat be “credible” or that the fear be “reasonable.” For a discussion of the constitutional problems raised by stalking statutes, see K. Thomas, “How to Stop the Stalker: State Antistalking Laws,” 29 Crim. L. Bull. 224 (1993).
Of course, this right to move freely about one’s community, in the context of the criminal law, has significant limits, particularly when it collides with the rights of others.
For a detailed analysis of void for vagueness cases, see A. Amsterdam, “The Void for Vagueness Doctrine in the Supreme Court,” 109 Pa. L. Rev. 67 (1960); see also C. Burkholder, “Recent Supreme Court Developments of Vagueness Doctrine: Four Cases Involving the Vagueness Attack on Statutes During the 1972-73 Term,” 7 Conn. L. Rev. 94 (1974).
An in-depth discussion of certainty and ambiguity in statutory language can be found in an article by E. Freund, entitled “The Use of Indefinite Terms in Statutes,” 30 Yale L. J. 437 (1921).
The word “harass,” which could be construed to include speech or expressive conduct within its reach, was removed from an early version of the statute. According to Representative Thomas Luby, a harassment statute already exists, and the use of the word “harassment” might have created confusion. 35 H.R. Proc., Pt. 9, 1992 Sess., p. 2978.
In the context of the first amendment, the court has developed a wide variety of formulations in determining whether governmental infringements on protected rights can be justified, depending on the nature of the interest involved. “Pure speech” can be limited only where there is a “clear and present danger” involved. Cantwell v. Connecticut, 310 U.S. 296,308, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). Restrictions on “symbolic speech” can be countenanced only if limiting it is within the constitutional power of the government, if the limitation furthers an important or substantial *68 government interest, if the interest in regulation is unrelated to the suppression of free expression, and if the incidental restrictions on alleged first amendment freedoms is no greater than is essential to the furtherance of the governmental interest. United States v. O’Brien, 391 U.S. 367, 376-77, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968).
In regulating expressive conduct in a traditional public forum, the government may impose content-neutral time, place and manner restrictions if they are narrowly tailored to serve “significant” government interests. Clark v. Community for Creative Nonviolence, 468 U.S. 288, 293-94,104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984). As noted in Lutz v. York, supra, 899 F.2d 269, “the tailoring requirement” in the context of public forum time, place and manner cases does not require the state to employ the least restrictive means of achieving its objective, as is required under approaches requiring “full-blown strict scrutiny.” In regulating expressive conduct in a nonpublic forum, only a “reasonable state interest” must be demonstrated to justify a state restriction. See also International Society for Krishna Consciousness, Inc., v. Lee, 505 U.S. 672,112 S. Ct. 2701,120 L. Ed. 2d 541 (1992); Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37,103 S. Ct. 948, 74 L. Ed. 2d 794 (1983). A variety of other ad hoc balancing tests has been used depending on the first amendment interests involved. In contexts not involving the first amendment, a variety of formulations has been used, some requiring “strict scrutiny,” where a fundamental right is involved. See, e.g., Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Shapiro v. Thompson, 394 U.S. 618, 638, 89 S. Ct. 1322,22 L. Ed. 2d 600 (1969). In the court’s view, “strict scrutiny” is inappropriate in the present criminal prosecution because the qualified right to intrastate travel at issue does not rise to the level of the sort of political free speech right deserving of full-blown protection.
Providing different protections for “speech” as opposed to “action” was a central tenet of the system of freedom of expression championed by Thomas Emerson. According to Professor Emerson: “The central idea of a system of freedom of expression is that a fundamental distinction must be drawn between conduct which consists of ‘expression’ and conduct which consists of ‘action.’ ‘Expression’ must be freely allowed and encouraged. ‘Action’ can be controlled, subject to other constitutional requirements, but not by controlling expression. A system of freedom of expression cannot exist effectively on any other foundation, and a decision to maintain such a system necessarily implies acceptance of this proposition.” T. Emerson, The System of Freedom of Expression, “Maintaining the Public Peace,” p. 17.
As noted, the intrastate travel right discussed in connection with the court’s vagueness analysis has not been found to be rooted in the first *76 amendment. See Lutz v. York, supra, 899 F.2d 255, and Bruno v. Civil Service Commission, supra, 192 Conn. 335.