State v. Pelella , 327 Conn. 1 ( 2017 )

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STATE OF CONNECTICUT v. MICHAEL PELELLA
(SC 19760)
Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.*
Syllabus
The state, on the granting of permission, appealed from the judgment of
the trial court, which granted the defendant’s motion to dismiss an
information charging him with two counts of the crime of threatening
in the second degree. The charges stemmed from an altercation between
the defendant and his brother, F, over F’s intention to move into the
attic of a house where the defendant and F resided with their mother.
During the altercation, the defendant told F that he would ‘‘hurt’’ him
if he went into the attic. In response to the defendant’s statement to F,
their mother called the police. In his motion to dismiss, the defendant
claimed that the allegedly threatening statement was not a true threat,
which is a form of speech that is not protected by the first amendment
of the United States constitution, but was merely a spontaneous outburst,
rooted in his anger and frustration with F. In granting the defendant’s
motion, the trial court concluded that the state would be unable to
sustain its burden of establishing that the statement constituted a true
threat. On appeal, the state claimed that the statement constituted a
true threat and that the trial court improperly granted the defendant’s
motion to dismiss. The state also contended that the trial court incor-
rectly determined that the law required a threat to be imminent for it
to constitute a true threat and improperly viewed the evidence in the
light most favorable to the defendant in ruling on the motion to dismiss.
Held that the trial court improperly granted the defendant’s motion to
dismiss, as a jury reasonably could have found that the defendant’s
statement was a true threat: the trial court, in ruling on the motion to
dismiss, was required to consider the evidence before it in the light
most favorable to the state, and, when the evidence was viewed in such
a light, it was possible for the state, following a trial, to convince a
person of reasonable caution that the defendant’s statement was highly
likely to be perceived as a serious expression of an intent to harm F,
and, accordingly, the issue of whether the statement was a true threat
should have been for the jury to decide; the defendant’s statement
unambiguously communicated an ultimatum, the statement, according
to F, was communicated directly to F rather than to the mother in an
effort to have her arbitrate the dispute between F and the defendant,
the prior relationship between F and the defendant involved at least
one previous encounter that was physical in nature and caused F to
fear for his safety, and the mother, who was intimately familiar with
the history between F and the defendant, found it necessary to call the
police to the scene and could be heard on the phone with the police
stating that the defendant had threatened F; moreover, it was not neces-
sary for this court to determine whether the trial court, in ruling on the
motion to dismiss, relied on the imminence of the defendant’s alleged
threat, as imminence is only one factor to be considered in the determina-
tion of whether a statement constitutes a true threat rather than a
requirement.
Argued December 5, 2016—officially released October 10, 2017
Procedural History
Substitute information charging the defendant with
two counts of the crime of threatening in the second
degree, brought to the Superior Court in the judicial
district of Danbury, where the court, Eschuk, J., granted
the defendant’s motion to dismiss and rendered judg-
ment thereon, from which the state, on the granting of
permission, appealed. Reversed; further proceedings.
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky III,
state’s attorney, and Edward L. Miller, deputy assistant
state’s attorney, for the appellant (state).
Mary Boehlert, assigned counsel, for the appellee
(defendant).
Opinion
PALMER, J. The defendant, Michael Pelella, was
arrested following an altercation with his brother and
charged with two counts of threatening in the second
degree, one for threatening to commit a crime of vio-
lence with intent to terrorize under General Statutes
(Rev. to 2013) § 53a-62 (a) (2), and the other for threat-
ening to commit a crime of violence in reckless disre-
gard of the risk of causing terror under General Statutes
(Rev. to 2013) § 53a-62 (a) (3).1 The defendant subse-
quently filed a motion to dismiss the charges ‘‘for lack
of sufficient evidence or cause,’’ and the trial court
granted the motion and rendered judgment dismissing
the charges, concluding that the state would be unable
to demonstrate that the statement by the defendant
on which the charges were based constituted a ‘‘ ‘true
threat,’ ’’ a form of speech that is not protected by the
first amendment to the United States constitution.2
Thereafter, the trial court granted the state’s motion
for permission to appeal,3 and the state now claims
that the trial court improperly granted the defendant’s
motion to dismiss after (1) incorrectly determining that
an expression of an intent to cause harm to another
cannot constitute a true threat unless the contemplated
harm is imminent or immediate, and (2) improperly
viewing the evidence before it in the light most favor-
able to the defendant. We agree with both of these
contentions, and, therefore, we also agree that the trial
court improperly granted the defendant’s motion to dis-
miss the charges. Accordingly, we reverse the judgment
of the trial court and remand the case to that court
with direction to deny the motion to dismiss.
The following facts and procedural history are rele-
vant to this appeal. According to a police report submit-
ted by both parties, on January 20, 2014, police officers
responded to 22 Fairlawn Avenue in the city of Danbury
to investigate the report of a domestic disturbance at
that residence. When they arrived, the officers discov-
ered the thirty-one year old defendant, along with his
twenty-two year old brother, Francis Pelella, and their
mother, Linda Pelella, all three of whom resided at 22
Fairlawn Avenue. According to all three parties, the
disturbance arose out of a disagreement between Fran-
cis, who wanted to move into the attic of the house,
and the defendant, who had ‘‘some of his stuff up there’’
and objected to the move. The defendant told the offi-
cers that, faced with their opposition,4 Francis became
angry and started yelling and cursing. The mother added
that Francis ‘‘got into her face.’’ Francis, meanwhile,
reported to the police that the defendant had told him,
‘‘ ‘if you go into the attic I will hurt you.’ ’’ Francis added
that he felt threatened and feared for his safety because
the defendant had physically harmed him in the past.
The defendant and the mother admitted that the
defendant had said that he would hurt Francis if he
moved into the attic, but both claimed that the defen-
dant had made the statement to the mother, not to
Francis. The defendant claimed that he felt he had a
right to protect his belongings. Both men attempted to
play for the officers recordings that they had made of
the encounter. Francis played a video recording on his
cell phone that showed Francis standing at the top of
a staircase and the defendant and the mother down-
stairs; the mother’s voice could be heard, apparently
on the telephone with the police, saying that the defen-
dant had threatened to hurt Francis. Although the defen-
dant also attempted to play for the officers an audio
recording of the incident on his computer, the recording
was unintelligible. Both the defendant and Francis were
arrested for their participation in the altercation, the
defendant for threatening and Francis for disorderly
conduct.5
After the state filed a substitute information charging
the defendant with two counts of threatening in the
second degree, the defendant filed a pretrial motion to
dismiss for insufficient evidence or cause pursuant to
Practice Book § 41-8 (5).6 In support of his motion,
the defendant claimed that the allegedly threatening
statement was merely ‘‘a spontaneous outburst rooted
in his anger and frustration with his brother,’’ and not
an unprotected ‘‘ ‘true threat,’ ’’ as described by this
court in State v. Krijger, 313 Conn. 434, 450, 97 A.3d
946 (2014). See id. (true threat must be ‘‘on its face
and in the circumstances in which it is made . . . so
unequivocal, unconditional, immediate and specific as
to the person threatened, as to convey a gravity of
purpose and imminent prospect of execution’’ [internal
quotation marks omitted]). The defendant argued that
the alleged threat was conditional and not subject to
an ‘‘imminent prospect of execution,’’ and that it was
‘‘nonspecific as to what would be done,’’ including
whether the threatened response would be physical in
nature. He further maintained, incorrectly, that there
was ‘‘nothing to indicate [that] the threat was made
directly to Francis.’’ In opposing the defendant’s
motion, the state maintained that the defendant’s state-
ment fit squarely within the objective standard articu-
lated in Krijger, namely, ‘‘whether a reasonable person
would foresee that the statement would be interpreted
by those to whom the maker communicates the state-
ment as a serious expression of intent to harm or
assault.’’ (Internal quotation marks omitted.) State v.
Krijger, supra, 450. In the state’s view, the statement
was an explicit threat notwithstanding its conditional
nature. The state noted that this court had previously
found the statement, ‘‘ ‘[t]his is for you if you bother
me anymore,’ ’’ to be a threat. State v. Cook, 287 Conn.
237, 240, 255, 947 A.2d 307 (defendant was simultane-
ously brandishing table leg), cert. denied, 555 U.S. 970,
129 S. Ct. 464, 172 L. Ed. 2d 328 (2008). The state also
asserted that Francis’ claim that the defendant had hurt
him physically in the past removed any ambiguity about
the nature of the threat and distinguished the present
case from Krijger, in which the defendant’s relationship
with the alleged victim had previously been ‘‘cordial
. . . .’’ State v. Krijger, supra, 454.
After considering the parties’ arguments, the trial
court issued a memorandum of decision in which it
granted the defendant’s motion to dismiss.7 The court
commenced its analysis of the defendant’s claim by
characterizing the issue as whether the state could
establish that the defendant’s words amounted to a true
threat or ‘‘were instead either part of a discourse, or
were merely words uttered as an ‘unplanned [and] spon-
taneous reaction to the upset and anger [he] felt’ . . .
and carried no immediate plan to harm.’’ (Citation omit-
ted.) The court then noted that, under State v. Krijger,
supra, 313 Conn. 460, ‘‘the state must do more than
demonstrate that a statement could be interpreted as a
threat.’’ (Emphasis in original; internal quotation marks
omitted.) Rather, the state must show that ‘‘a reasonable
listener, familiar with the entire factual context of the
defendant’s statements, would be highly likely to inter-
pret them as communicating a genuine threat of vio-
lence rather than protected expression, however offen-
sive or repugnant.’’ (Internal quotation marks omitted.)
The court further explained that the statement at issue
was ‘‘ ‘susceptible of varying interpretations, at least
one of which [was] nonthreatening,’ ’’ and suggested
that it may simply have been ‘‘an expression of how
strongly [the defendant] felt about Francis’ plan to move
into the attic’’ or ‘‘an appeal to the mother to arbitrate
the dispute.’’ In light of the factual context, including
the lack of evidence that the defendant approached
Francis or took other steps to carry out his threat, the
court determined that the state ‘‘would be unable to
show that a reasonable listener, fully familiar with the
facts, would be ‘highly likely’ to interpret them as a
genuine threat of violence rather than protected expres-
sion,’’ as Krijger requires.8 (Emphasis in original.) The
court finally concluded that, because the state would
be unable to sustain its burden of establishing that the
statement constituted a true threat, the defendant was
entitled to a dismissal of the charges.
On appeal, the state renews its claim that the defen-
dant’s statement bore the necessary hallmarks of an
unprotected true threat and that the trial court therefore
improperly granted the defendant’s motion to dismiss
on first amendment grounds. The state contends, first,
that the trial court incorrectly interpreted Krijger as
requiring that a threat must be imminent to constitute
a true threat. According to the state, the purported
imminence requirement in Krijger constitutes dictum,
runs counter to prior cases of this court that have explic-
itly relied on the opposite proposition, and ignores the
fact that threats may be effective—that is, they may
convey a serious intent to cause harm—regardless of
whether they will be imminently executed. The state
also asserts that the trial court’s ruling is flawed because
the court improperly viewed the evidence before it in
the light most favorable to the defendant and that it
should have considered that evidence in the light most
favorable to the state. Finally, the state claims that,
considering all the relevant circumstances presented
to the court in that light, a jury reasonably could find
that the defendant’s statement constituted an unpro-
tected true threat.
The defendant maintains that the trial court did not,
in fact, rely on an ‘‘imminence requirement’’ in dismiss-
ing the charges and, instead, considered the threats ‘‘in
light of their entire factual context,’’ noting only that the
imminence of the harm ‘‘must be considered.’’ (Internal
quotation marks omitted.) The defendant further claims
that the trial court correctly concluded, upon consider-
ation of the totality of the evidence presented, that the
state cannot prove that the defendant’s statement was
a true threat.
Because this appeal challenges the propriety of the
trial court’s decision to grant the defendant’s motion
to dismiss, we review de novo the trial court’s ultimate
determination as to whether the defendant’s statement
constituted a true threat.9 Thus, we need not decide
whether the court relied on the imminence of the
alleged threat in making its determination. Nonetheless,
we take this opportunity to clarify the apparent incon-
sistency in our precedents. We conclude that immi-
nence, at least in the sense of immediacy,10 is only one
factor to be considered in determining whether a state-
ment constitutes a true threat under our law, not a
requirement.
Our plenary review of the state’s claim also makes
it unnecessary to determine whether the trial court
viewed the evidence in the light most favorable to the
defendant. As we explain more fully hereinafter, for
purposes of the present case, the proper analytical
approach is to evaluate the evidence in the light most
favorable to the state. Having considered the evidence
in that light, we are persuaded, contrary to the conclu-
sion of the trial court, that a jury reasonably could find
that the defendant’s statement was an unprotected true
threat prohibited by § 53a-62 (a).
‘‘The [f]irst [a]mendment [to the United States consti-
tution], applicable to the [s]tates through the [due pro-
cess clause of 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.’’ Virginia v. Black, 538
U.S. 343, 358, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).
‘‘The protections afforded by the [f]irst [a]mendment,
however, are not absolute, and . . . the government
may regulate certain categories of expression consis-
tent with the [c]onstitution. . . . The [f]irst [a]mend-
ment permits restrictions [on] the content of speech in
a few limited areas, which are of such slight social value
as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest
in order and morality.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 358–59.
True threats comprise one such unprotected category
of speech. See, e.g., id., 359. ‘‘True threats encompass
those statements where the speaker means to communi-
cate a serious expression of an intent to commit an act
of unlawful violence to a particular individual or group
of individuals. . . . The speaker need not actually
intend to carry out the threat. Rather, a prohibition
on true threats protect[s] individuals from the fear of
violence and from the disruption that fear engenders,
in addition to protecting people from the possibility that
the threatened violence will occur.’’ (Citations omitted;
internal quotation marks omitted.) Id., 359–60. As a
result, ‘‘we must distinguish between true threats,
which, because of their lack of communicative value,
are not protected by the first amendment, and those
statements that seek to communicate a belief or idea,
such as political hyperbole or a mere joke, which are
protected.’’ State v. DeLoreto, 265 Conn. 145, 155, 827
A.2d 671 (2003). ‘‘In the context of a threat of physical
violence, [w]hether a particular statement may properly
be considered to be a threat is governed by an objective
standard—whether a reasonable person would foresee
that the statement would be interpreted by those to
whom the maker communicates the statement as a seri-
ous expression of intent to harm or assault.’’ (Internal
quotation marks omitted.) Id., 156.
In DeLoreto, we further concluded that a ‘‘threat need
not be imminent to constitute a constitutionally punish-
able true threat.’’ Id., 159. In one incident described in
that case, the defendant, Dante DeLoreto, followed a
police officer out of a convenience store and said to
the officer, ‘‘I’m going to kick your punk ass’’ and ‘‘I’ll
kick your ass . . . .’’ (Internal quotation marks omit-
ted.) Id., 150, 158. We concluded that the fact that the
officer was on duty and armed ‘‘[did] not lessen the
impact of the threat; it just made it more difficult for
[DeLoreto] to carry out his threat immediately.’’ Id., 158.
‘‘Imminence,’’ we stated, ‘‘is not a requirement under
the true threats doctrine.’’ Id.
Thereafter, in State v. Cook, supra, 287 Conn. 257,
we reached the same conclusion. In that case, the defen-
dant, Daniel Cook, had been involved in a long-standing
dispute with his neighbor, whom he eventually threat-
ened with a wooden table leg, which he waved in the
air while stating, ‘‘ ‘[t]his is for you if you bother me
anymore.’ ’’ Id., 238, 240. Cook claimed that he was
entitled to a judgment of acquittal because the state
failed to prove that his threatened use of the table leg
‘‘constituted a present threat, rather than a future threat
. . . .’’ Id., 256. We rejected the claim, concluding that
neither the statute under which Cook was charged nor
the true threats doctrine required proof of imminence.11
Id., 256–57.
Most recently, in State v. Krijger, supra, 313 Conn.
434, we reiterated our objective standard for evaluating
true threats, that is, whether the statement at issue
reasonably would be interpreted as a serious expression
of intent to harm, noting that ‘‘[a]lleged threats should
be considered in light of their entire factual context,
including the surrounding events and reaction of the
listeners.’’ (Internal quotation marks omitted.) Id., 450.
We further stated, however, that ‘‘[p]rosecution under
a statute prohibiting threatening statements is constitu-
tionally permissible [as] long as the threat on its face
and in the circumstances in which it is made is so
unequivocal, unconditional, immediate and specific
as to the person threatened, as to convey a gravity of
purpose and imminent prospect of execution . . . .
United States v. Malik, 16 F.3d 45, 51 (2d Cir.), cert.
denied, 513 U.S. 968, 115 S. Ct. 435, 130 L. Ed. 2d 347(1994).’’ (Emphasis added; internal quotation marks
omitted.) State v. Krijger, supra, 450. The state con-
tends that this language is dictum and inconsistent with
relevant precedent. To the extent that the challenged
language can be read to suggest that a true threat must
be subject to immediate execution unburdened by any
conditions, we agree with the state.
We agree, first of all, that the disputed language in
Krijger relating to imminence was not essential to our
holding. In that case, the defendant, Stephen Jason
Krijger, was involved in an ongoing zoning dispute with
the town of Waterford. Id., 436. Following a hearing on
the matter, Krijger followed the town attorney out of
the courtroom, ‘‘express[ing] his anger over the town’s
decision to seek fines [against him] and call[ing] [the
attorney] a liar and an asshole.’’ (Internal quotation
marks omitted.) Id., 439. Upon exiting the courthouse,
Krijger ‘‘appeared angry; his face was red and there was
[saliva] in the corner of his mouth. [Krijger] then stated
to [the attorney], [m]ore of what happened to your
son is going to happen to you, to which [the attorney]
replied, [w]hat did you say? . . . [Krijger] responded,
I’m going to be there to watch it happen.’’ (Internal
quotation marks omitted.) Id., 440. Krijger’s statement
alluded to a serious car accident several years earlier
that had left the attorney’s only son with debilitating
injuries. Id., 440 and n.6. Krijger was convicted, follow-
ing a jury trial, of threatening in violation of General
Statutes (Rev. to 2007) § 53a-62 (a) (3)12 and breach of
the peace in violation of General Statutes § 53a-181
(a) (3),13 and, following Krijger’s appeal, the Appellate
Court affirmed the judgment of conviction. See id., 437.
After granting Krijger’s petition for certification to
appeal, we held that the defendant’s statements did not,
on their face, unambiguously constitute true threats;
see id., 452; and that a ‘‘more plausible’’ interpretation
was that Krijger ‘‘merely was expressing the view that
what goes around, comes around . . . .’’ (Internal quo-
tation marks omitted.) Id., 456. We observed that Krijger
was ‘‘angry, but not physically aggressive’’; id., 456; that
the record was devoid of evidence that he had threat-
ened the attorney in the past or was even ‘‘capable of
carrying out such a threat’’; id.; that Krijger and the
attorney previously had had a ‘‘long-standing’’ and ‘‘cor-
dial’’ working relationship; id., 454; and that Krijger
apologized for his behavior to the attorney’s associate
only moments after the incident. See id., 457–58. As a
result, we concluded that the state had failed to meet
‘‘its burden of removing the ambiguity inherent in [Krijg-
er’s] remarks’’; id., 458; in order to demonstrate that
they ‘‘were anything other than a spontaneous outburst,
rooted in [his] anger and frustration’’; (emphasis in orig-
inal) id., 459; and reversed the judgment of the Appellate
Court. Id., 461. Thus, rather than simply observing that
the state had presented no evidence that Krijger was
capable of imminently orchestrating a car accident; id.,
456 n.11; we undertook a thorough, context-specific
analysis of the statement, concluding that the threat’s
lack of immediacy was only one factor in the consider-
ably broader analysis of whether Krijger’s statements
constituted a true threat.
In DeLoreto and Cook, by contrast, our explicit deter-
mination that imminence was not a requirement under
the true threats doctrine was integral to the outcome
of each case. In DeLoreto, we acknowledged that the
context made it unlikely that DeLoreto would carry out
the threat immediately but found it to be a true threat
nonetheless. See State v. DeLoreto, supra, 265 Conn.
158–59. In Cook, we rejected Cook’s contention that a
threat of ‘‘future’’ action at some indeterminate point
in time—expressed by the conditional ‘‘ ‘if you bother
me anymore’ ’’—could not constitute a true threat. State
v. Cook, supra, 287 Conn. 240, 256–58. Rather than immi-
nence, at least in the sense of temporal immediacy, the
critical consideration in DeLoreto, Cook and Krijger
was the seriousness of purpose attributable to each
defendant’s statement or statements.14 See State v.
Krijger, supra, 313 Conn. 454–58; State v. Cook, supra,255–56; State v. DeLoreto, supra, 157–59; see also State
v. Carter, 141 Conn. App. 377, 401, 61 A.3d 1103 (2013)
(‘‘prospective nature’’ of statements made by hand-
cuffed defendant did not necessarily make statements
‘‘merely repugnant acts of puffery’’ rather than true
threats), aff’d, 317 Conn. 845, 120 A.3d 1229 (2015).
It is doubtful, in fact, that even the Second Circuit
Court of Appeals, from which we appropriated the lan-
guage under consideration, actually requires that a true
threat be imminent. In United States v. Kelner, 534 F.2d
1020 (2d Cir.), cert. denied, 429 U.S. 1022, 97 S. Ct.
639, 50 L. Ed. 2d 623 (1976), the original source of
the requirement, a concurring judge asserted that ‘‘the
proposed requirement that the threat be of immediate,
imminent and unconditional injury’’ was dictum and
not required by the first amendment. Id., 1029 (Mulligan,
J., concurring); see also United States v. Turner, 720
F.3d 411, 423–24 (2d Cir. 2013) (citing with approval
Judge Mulligan’s concurrence in Kelner), cert. denied,
U.S. , 135 S. Ct. 49, 190 L. Ed. 2d 29 (2014); cf.
Harrell v. State, 297 Ga. 884, 887, 778 S.E.2d 196 (2015)
(citing Turner for proposition that ‘‘[a] ‘true threat’ may
be conditional, need not be explicit, and the threatened
violence need not be imminent’’). In addition, in United
States v. Malik, supra, 16 F.3d 45, the immediate source
of the challenged language in Krijger, the Second Cir-
cuit did not rely on proof of imminence; rather, it upheld
the defendant’s conviction ‘‘for writing two letters,
while incarcerated, that threatened violence . . . .’’
(Emphasis added.) United States v. Voneida, 337 Fed.
Appx. 246, 249 (3d Cir. 2009). This is consistent with
the Fifth Circuit’s appraisal of Kelner, which equated
that case’s imminence requirement with ‘‘clarity of pur-
pose . . . .’’ Shackelford v. Shirley, 948 F.2d 935, 939
(5th Cir. 1991).
Indeed, logic and reason dictate that a threat—for
example, ‘‘if you report me to the police, I’ll kill your
family’’—need not be imminent to be outside the protec-
tions of the first amendment.15 Imminence is not a
requirement because ‘‘a prohibition on true threats pro-
tect[s] individuals from the fear of violence and from the
disruption that fear engenders, in addition to protecting
people from the possibility that the threatened violence
will occur.’’ (Internal quotation marks omitted.) Vir-
ginia v. Black, supra, 538 U.S. 360. Indeed, ‘‘[t]hreaten-
ing speech . . . works directly the harms of appre-
hension and disruption, whether the apparent resolve
proves bluster or not and whether the injury is threat-
ened to be immediate or delayed. Further, the social
costs of a threat can be heightened rather than dissi-
pated if the threatened injury is promised for some
fairly ascertainable time in the future . . . for then the
apprehension and disruption directly caused by the
threat will continue for a longer rather than a shorter
period.’’ Planned Parenthood of Columbia/Willamette,
Inc. v. American Coalition of Life Activists, 290 F.3d
1058, 1107 (9th Cir. 2002) (Berzon, J., dissenting), cert.
denied, 539 U.S. 958, 123 S. Ct. 2637, 156 L. Ed. 2d
655 (2003). Though relevant, the primary focus of our
inquiry is not immediacy but whether the threat ‘‘con-
vey[s] a gravity of purpose and likelihood of execution
. . . .’’ (Internal quotation marks omitted.) United
States v. Dillard, 795 F.3d 1191, 1199 (10th Cir. 2015);
see also United States v. Vaksman, 472 Fed. Appx. 447,
449 (9th Cir.) (no requirement of imminent action), cert.
denied, 568 U.S. 1056, 133 S. Ct. 777, 184 L. Ed. 2d
514 (2012).
We next turn to the state’s claim that the trial court
improperly viewed the evidence before it in the light
most favorable to the defendant in granting the motion
to dismiss. The state argues, more specifically, that the
trial court improperly determined that the evidence was
insufficient to prove that the defendant’s statement was
a true threat because the opposite conclusion was
‘‘equally feasible . . . .’’ The defendant responds that,
‘‘[e]ven . . . if . . . the trial court should have viewed
the evidence underlying the motion to dismiss in a light
most favorable to the state, the error would be harm-
less’’ because ‘‘the state could not demonstrate that a
reasonable listener would find the statement to be a
genuine threat of violence rather than protected
speech.’’ We agree with the state that the trial court
was obliged to consider the evidence before it in the
light most favorable to the state and, furthermore, that,
when the evidence is viewed in such a light, the state
may be able to prove at trial that the defendant’s state-
ment constituted a true threat.
In order to demonstrate the existence of a true threat
at trial, ‘‘the state must do more than demonstrate that
a statement could be interpreted as a threat. When . . .
a statement is susceptible of varying interpretations, at
least one of which is nonthreatening, the proper stan-
dard to apply is whether an objective listener would
readily interpret the statement as a real or true threat;
nothing less is sufficient to safeguard the constitutional
guarantee of freedom of expression. To meet this stan-
dard . . . the state [is] required to present evidence
demonstrating that a reasonable listener, familiar with
the entire factual context of the defendant’s statements,
would be highly likely to interpret them as communicat-
ing a genuine threat of violence rather than protected
expression, however offensive or repugnant.’’ (Empha-
sis in original.) State v. Krijger, supra, 313 Conn. 460.
The standard to be applied in determining whether
the state can satisfy this burden in the context of a
pretrial motion to dismiss under General Statutes § 54-
56 and Practice Book § 41-8 (5) is no different from the
standard applied to other claims of evidentiary suffi-
ciency. General Statutes § 54-56 provides that ‘‘[a]ll
courts having jurisdiction of criminal cases shall at all
times have jurisdiction and control over informations
and criminal cases pending therein and may, at any time,
upon motion by the defendant, dismiss any information
and order such defendant discharged if, in the opinion
of the court, there is not sufficient evidence or cause
to justify the bringing or continuing of such information
or the placing of the person accused therein on trial.’’16
‘‘When assessing whether the state has sufficient evi-
dence to show probable cause to support continuing
prosecution [following a motion to dismiss under § 54-
56], the court must view the proffered proof, and draw
reasonable inferences from that proof, in the light most
favorable to the state. State v. Kinchen, 243 Conn. 690,
702, 707 A.2d 1255 (1998); State v. Morrill, 193 Conn.
602, 611, 478 A.2d 994 (1984). The quantum of evidence
necessary to [overcome a motion to dismiss] . . . is
less than the quantum necessary to establish proof
beyond a reasonable doubt at trial . . . . In [ruling on
the defendant’s motion to dismiss], the court [must]
determine whether the [state’s] evidence would warrant
a person of reasonable caution to believe that the
[defendant had] committed the crime. . . . State v.
Patterson, 213 Conn. 708, 720, 570 A.2d 174 (1990).’’
(Internal quotation marks omitted.) State v. Cyr, 291
Conn. 49, 55–56, 967 A.2d 32 (2009). Thus, the trial court
must ask whether the evidence would allow a person
of reasonable caution, viewing the evidence presented
in the light most favorable to the state, to believe that
the statement at issue was highly likely to be perceived
by a reasonable person as a serious threat of physical
harm. If that evidence would support such a finding—
regardless of whether it might also support a different
conclusion—then the motion to dismiss must be denied.
With these principles in mind, we consider the merits
of the state’s claim, turning first to the language of the
defendant’s allegedly unlawful statement. According to
Francis, the defendant told him, ‘‘ ‘if you go into the
attic I will hurt you.’’ As the trial court recognized, such
words are ‘‘clearly capable of being a true threat . . . .’’
Indeed, unlike the precatory statements at issue in
Krijger—for example, ‘‘ ‘I’m going to be there [when
you get hurt]’ ’’; State v. Krijger, supra, 313 Conn. 440;
the statement in the present case unambiguously com-
municated not a wish but an ultimatum. Nonetheless,
the defendant and his mother claimed that the defen-
dant’s statement about hurting Francis was made not
to Francis directly but to the mother. See United States
v. Dinwiddie, 76 F.3d 913, 925 (8th Cir.) (considering
‘‘whether the threat was communicated directly to [the]
victim’’), cert. denied, 519 U.S. 1043, 117 S. Ct. 613, 136
L. Ed. 2d 538 (1996). As a result, the trial court in the
present case determined that, although the statement
‘‘might have been made with the purpose that [Francis]
would hear it and be afraid, the method of delivery
equally supports the thesis that the statement was not
a true threat but a communication of just how important
the issue was to the defendant. It might even have
been an appeal to the mother to arbitrate the dispute.’’
(Emphasis in original.) Viewing the evidence in the light
most favorable to the state, however, we are required
to credit Francis’ account—that the defendant made
the statement directly to Francis. Considered in that
light, the defendant’s statement appears less like an
entreaty to his mother than the expression of an inten-
tion to harm Francis.
We must also consider the parties’ prior relationship.
See State v. Krijger, supra, 313 Conn. 454 (‘‘[w]hen the
alleged threat is made in the context of an existing or
increasingly hostile relationship, courts are more apt to
conclude that an objectively reasonable speaker would
expect that the statement would be perceived by the
listener as a genuine threat’’). In this case, police offi-
cers were called to the scene of the dispute, a location
to which they previously had responded ‘‘numerous
times,’’ and Francis told officers at the scene that the
defendant’s statement had caused him to fear for his
safety because the defendant had physically hurt him in
the past. At a hearing on his disorderly conduct charges,
Francis later stated that he hoped ‘‘that, in other cases,
similar to mine, there’s more investigation into the civil-
ity of the household, as a whole, and the person doing
all the antagonizing, like who it really is.’’ His attorney
confirmed that ‘‘[i]t’s a difficult family situation . . . .’’
Viewed in the light most favorable to the state, there-
fore, we are bound to conclude that at least one previ-
ous encounter between the defendant and his brother
was physical in nature and sufficiently serious to cause
Francis to fear for his safety if he crossed the defendant.
This context significantly increases the likelihood that
an objective listener would perceive the defendant’s
statement as a serious threat to perpetrate physical
harm.
The immediate circumstances surrounding the defen-
dant’s statement, including Francis’ reaction, are also
relevant. See State v. Krijger, supra, 313 Conn. 454. It
is true, as the trial court observed, that Francis neither
fled nor called the police, opting instead to record the
encounter. Nor is there any evidence that the defendant
approached Francis or otherwise physically engaged
him during the altercation. Nonetheless, the very fact
that the defendant’s mother, who was intimately famil-
iar with the history between the brothers, found it nec-
essary to call the police to the scene, and could be heard
on the phone saying that the defendant had threatened
Francis, suggests that the defendant’s mother believed
that the threat might imminently result in physical
harm.17 In any event, as we have explained, the mere
possibility that a threat will not be executed immedi-
ately does not resolve whether it constitutes a true
threat. See, e.g., State v. DeLoreto, supra, 265 Conn.
159; see also State v. Cook, supra, 287 Conn. 255 (state-
ment may have constituted true threat even though
victim’s reaction to defendant’s conduct, despite their
volatile history, ‘‘suggest[ed] that he was not genuinely
concerned for his safety’’).
Irrespective of the threat’s ‘‘imminence,’’ the first
amendment was not intended to protect speech lacking
in any communicative purpose other than to prevent
others from doing what they have a lawful right to do.
See Shackelford v. Shirley, supra, 948 F.2d 938 (‘‘The
notion that some expression may be regulated consis-
tent with the first amendment . . . starts with the
already familiar proposition that expression has special
value only in the context of dialogue: communication
in which the participants seek to persuade, or are per-
suaded; communication [that] is about changing or
maintaining beliefs, or taking or refusing to take action
on the basis of one’s beliefs . . . . It is not plausible
to uphold the right to use words as projectiles [when]
no exchange of views is involved.’’ [Internal quotation
marks omitted.]), quoting L. Tribe, American Constitu-
tional Law (2d Ed. 1988) § 12-8, pp. 836–37; see also In
re M.S., 10 Cal. 4th 698, 714, 896 P.2d 1365, 42 Cal. Rptr.
2d 355 (1995) (‘‘Violence and threats of violence . . .
fall outside the protection of the [f]irst [a]mendment
because they coerce by unlawful conduct, rather than
persuade by expression, and thus play no part in the
‘marketplace of ideas.’ . . . As long as the threat rea-
sonably appears to be a serious expression of intention
to inflict bodily harm . . . and its circumstances are
such that there is a reasonable tendency to produce in
the victim a fear the threat will be carried out . . . the
fact [that] the threat may be contingent on some future
event [e.g., ‘If you don’t move out of the neighborhood
by Sunday, I’ll kill you’] does not cloak it in constitu-
tional protection.’’ [Citations omitted; emphasis in
original.]).
The limited facts in the record make for a very close
case. On the one hand, we are committed to ‘‘ensur[ing]
that only serious expressions of an intention to commit
an act of unlawful violence are punished . . . .’’
(Emphasis in original.) State v. Krijger, supra, 313
Conn. 460. On the other hand, ‘‘[when] there is sufficient
evidence to support a reasonable inference that the
defendant intended to commit the crime charged,
whether such an inference should be drawn is properly
a question for the jury to decide.’’ State v. Morrill, supra,
193 Conn. 609; see also United States v. Dillard, supra,
795 F.3d 1199 (‘‘If there is no question that a defendant’s
speech is protected by the [f]irst [a]mendment, the
court may dismiss the charge as a matter of law. . . .
But, [in the absence of] an unusual set of facts, the
question whether statements amount to true threats is a
question generally best left to a jury.’’ [Citation omitted;
internal quotation marks omitted.]). The present case,
unlike Krijger, involves a direct threat of harm arising
out of the context of a difficult family relationship and
prior use of physical force on the part of the defendant.
In light of the mother’s apparent concern, and viewing
the evidence in the light most favorable to the state,
we cannot say that the state, following a trial, would
be unable to convince a person of reasonable caution
that the defendant’s statement was ‘‘highly likely’’ to
be perceived as a serious expression of an intent to
harm. State v. Krijger, supra, 460. Rather, we believe
that the issue is one that is properly left for a jury to
decide. See, e.g., State v. Cook, supra, 287 Conn. 255–56
(concluding that, when evidence could equally support
finding that statement was true threat or finding that
it was ‘‘mere puffery,’’ evidence was sufficient for jury
to determine whether statement constituted true
threat). We emphasize, however, that the facts and
inferences most favorable to the state may not be borne
out at trial, and we express no view as to whether the
defendant’s statement would, following an independent
review of a full trial record, constitute a true threat.
The judgment is reversed and the case is remanded
with direction to deny the defendant’s motion to dismiss
and for further proceedings according to law.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes (Rev. to 2013) § 53a-62 (a) provides in relevant part:
‘‘A person is guilty of threatening in the second degree when . . . (2) such
person threatens to commit any crime of violence with the intent to terrorize
another person, or (3) such person threatens to commit such crime of
violence in reckless disregard of the risk of causing such terror.’’
Hereinafter, all references to § 53a-62 are to the 2013 revision unless
otherwise noted.
2
As we discuss more fully hereinafter, a ‘‘true threat’’ is ‘‘a serious expres-
sion of an intent to commit an act of unlawful violence against another’’;
(internal quotation marks omitted) State v. Cook, 287 Conn. 237, 239, 947
A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008);
and is not protected by the first amendment.
3
The state, on the granting of permission, appealed to the Appellate Court,
and we transferred the appeal to this court pursuant to General Statutes
§ 51-199 (c) and Practice Book § 65-1.
4
The defendant claimed that the mother also objected to the move.
5
Francis subsequently pleaded guilty to the charge of disorderly conduct
and received an unconditional discharge, but his arrest and conviction also
constituted a parole violation for which, along with other parole violations,
he was sentenced to five months of incarceration.
6
Practice Book § 41-8 provides in relevant part: ‘‘The following defenses
or objections, if capable of determination without a trial of the general issue,
shall, if made prior to trial, be raised by a motion to dismiss the information:
***
‘‘(5) Insufficiency of evidence or cause to justify the bringing or continuing
of such information or the placing of the defendant on trial . . . .’’
As we discuss more fully hereinafter, General Statutes § 54-56 also pro-
vides for a pretrial motion to dismiss on grounds of evidentiary insufficiency
in language nearly identical to that in Practice Book § 41-8 (5).
7
Upon agreement of the parties, the trial court based its decision on a
limited record, which, in its entirety, consisted of a police report concerning
the January 20, 2014 incident and the transcript of a hearing regarding
Francis’ charges for disorderly conduct and violation of probation.
8
In Krijger, we stated that, ‘‘[w]hen . . . a statement is susceptible of
varying interpretations, at least one of which is nonthreatening, the proper
standard to apply is whether an objective listener would readily interpret
the statement as a real or true threat . . . .’’ (Emphasis added.) State v.
Krijger, supra, 313 Conn. 460. We acknowledge, however, that there is a
split of authority as to whether the proper standard involves an objective
listener or an objective speaker; see, e.g., United States v. Saunders, 166
F.3d 907, 913 n.6 (7th Cir. 1999); and, in fact, this court has previously used
language suggesting that the proper test contemplates the perspective of
an objective speaker. See, e.g., State v. DeLoreto, 265 Conn. 145, 156, 827 A.2d
671 (2003) (‘‘[w]hether a particular statement may properly be considered
to be a threat is governed by an objective standard—whether a reasonable
person would foresee that the statement would be interpreted by those to
whom the maker communicates the statement as a serious expression of
intent to harm or assault’’ [internal quotation marks omitted]). Because that
issue has not been raised in this case, however, we do not address it.
9
‘‘A motion to dismiss . . . properly attacks the jurisdiction of the court,
essentially asserting that the [state] cannot as a matter of law and fact state
a cause of action that should be heard by the court . . . . Accordingly,
[o]ur review of the trial court’s ultimate legal conclusion and resulting
[decision to grant] . . . the motion to dismiss will be de novo.’’ (Citation
omitted; internal quotation marks omitted.) State v. Cyr, 291 Conn. 49, 56,
967 A.2d 32 (2009). We note, as well, that the trial court was not required
to make any credibility or other factual findings for purposes of ruling on
the motion to dismiss. See footnote 7 of this opinion.
10
The trial court in the present case uses ‘‘imminent’’ interchangeably
with ‘‘immediate,’’ as have certain decisions of this court. See, e.g., State v.
Cook, supra, 287 Conn. 256–57; State v. DeLoreto, 265 Conn. 145, 158–59,
827 A.2d 671 (2003). Although ‘‘imminence’’ may also be used to convey a
sense of inevitability uncoupled from temporal proximity; see Webster’s
Third New International Dictionary (2002) p. 1130 (defining ‘‘imminent’’ as
both ‘‘ready to take place’’ and ‘‘hanging threateningly over one’s head’’);
we use the term in this opinion as we did in DeLoreto and Cook, that is, as
tending to suggest that the threat will be executed immediately.
11
Subsequently, in State v. Moulton, 310 Conn. 337, 78 A.3d 55 (2013), the
defendant, Diana L. Moulton, a postal worker, called her place of employ-
ment by telephone and stated to an employee: ‘‘ ‘[T]he shootings, you know,
the shootings [that recently occurred] in California. I know why she [the
perpetrator of those shootings] did that. They are doing the same thing to
me that they did to her, and I could do that, too.’ [Moulton] was referring
to an incident that took place approximately five days prior when a postal
employee in California shot and killed several postal workers inside the
. . . facility where [the employee] worked.’’ Id., 343. In that case, we noted
that Moulton had ‘‘couched her alleged threat in conditional terms, stating
that she ‘ ‘‘could’’ ’ engage in violent conduct similar to that which had
occurred several days earlier in California, and that she would be calling
back in a few days.’’ Id., 369 n.26. We expressly declined, however, to
‘‘suggest that [such statements] were not sufficiently direct or immediate’’
for a jury to determine that they constituted a true threat. Id.
12
Krijger was found not guilty of intentional threatening; instead, he was
found guilty under the reckless disregard provision of General Statutes (Rev.
to 2007) § 53a-62 (a) (3). State v. Krijger, supra, 313 Conn. 451.
13
General Statutes § 53a-181 (a) provides in relevant part: ‘‘A person is
guilty of breach of the peace in the second degree when, with intent to
cause inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, such person . . . (3) threatens to commit any crime against another
person or such other person’s property . . . .’’
14
State v. Moulton, 310 Conn. 337, 78 A.3d 55 (2013), is consistent with
these cases. Although we indicated in Moulton that a true threat must be
‘‘direct’’ and ‘‘immediate,’’ the alleged threat at issue was conditional, made
over the telephone, and tempered by the promise that Moulton would call
back in a few days. Id., 369 n.26. Despite this lack of imminence, we declined
to hold that the statements were protected as a matter of law. See id., 369
and n.26.
15
We also clarify that true threats need not be unconditional; cf. State
v. Krijger, supra, 313 Conn. 450 (true threat must be ‘‘so unequivocal,
unconditional, immediate and specific as to the person threatened, as to
convey a gravity of purpose and imminent prospect of execution’’ [internal
quotation marks omitted]); a threat may still be a true threat even if it is
presented in conditional terms such that the listener can escape from physi-
cal violence by fulfilling certain demands or directives. Thus, we agree with
the Second Circuit Court of Appeals that ‘‘a conditional threat—e.g., ‘your
money or your life’—is nonetheless a threat . . . .’’ (Citation omitted.)
United States v. Malik, supra, 16 F.3d 49; see United States v. Schneider,
910 F.2d 1569, 1570 (7th Cir. 1990) (‘‘[m]ost threats are conditional; they
are designed to accomplish something; the threatener hopes that [he] will
accomplish it, so that he won’t have to carry out the threats’’ [emphasis in
original]); see also United States v. Dillard, 795 F.3d 1191, 1200 (10th Cir.
2015) (‘‘[the court’s] cases make clear that a statement may constitute a
true threat even if it is conditional’’); United States v. Clemens, 738 F.3d
1, 8 (1st Cir. 2013) (rejecting requirement that threats be ‘‘unequivocal,
unconditional, and specific’’ [internal quotation marks omitted]); State v.
Moulton, 310 Conn. 337, 369 n.26, 78 A.3d 55 (2013); (conditional nature of
threat would not necessarily prevent it from being considered true threat);
State v. Cook, supra, 287 Conn. 257 (‘‘a threat, by definition, is an expression
of an intent to cause some future harm’’). To the extent that a threat’s
conditionality is relevant, we look to whether the threat nonetheless consti-
tutes a serious expression of intent to harm. Cf. Watts v. United States, 394
U.S. 705, 707, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969) (statement is not true
threat when conditioned on event speaker proclaimed would never happen);
see also Planned Parenthood of Columbia/Willamette, Inc. v. American
Coalition of Life Activists, supra, 290 F.3d 1058, 1111 n.14 (Berzon, J.,
dissenting) (‘‘ ‘[u]nconditional’ refers to the degree of determination con-
tained in the threat, not whether it is ‘conditioned’ in the sense that the
target could avoid the harm by bowing to the speaker’s will’’).
16
See also Practice Book § 41-8 (5); footnote 6 of this opinion.
17
Although the trial court found only that the police were called ‘‘by the
defendant and/or his mother,’’ the police report states that the mother was
talking with the police on her cell phone and told them that the defendant
threatened Francis. In any event, viewing the evidence in the light most
favorable to the state, we assume, for purposes of the motion to dismiss,
that the mother called the police.