State v. Taupier ( 2020 )

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STATE OF CONNECTICUT v. EDWARD F. TAUPIER
(AC 42115)
Keller, Prescott and Harper, Js.
Syllabus
Convicted, on a conditional plea of nolo contendere, of five counts of threat-
ening in the second degree in connection with posts he made on Face-
book that contained several threatening statements directed toward
Superior Court judges and court employees, the defendant appealed.
The defendant had been convicted of similar charges in 2014 in connec-
tion with sending a threatening e-mail to a Superior Court judge during
his contentious divorce proceedings. In 2017, while on house arrest and
while his appeal from his prior conviction was pending in our Supreme
Court, the defendant posted several statements on Facebook that threat-
ened the Cromwell Police Department and called for the killing of judges
and court employees and the arson of courthouses. The trial court denied
the defendant’s motion to dismiss, concluding that a jury reasonably
could find that the defendant’s statements, in light of the context in
which they were made, were not protected by the first amendment
because they were advocacy directed at inciting or producing imminent
lawless action and were likely to do so and because the statements
constituted true threats. On appeal to this court, the defendant claimed
that the trial court improperly denied his motion to dismiss because
the statements were not true threats and, thus, were constitutionally
protected free speech. Held that the trial court properly denied the
defendant’s motion to dismiss, as there was probable cause to support
continuing a constitutional prosecution against the defendant under
each count for threatening to commit a crime of violence in reckless
disregard of the risk of causing such terror; the uncontested facts in
the record, viewed in the light most favorable to the state, would allow
a person of reasonable caution to believe that at least five of the defen-
dant’s statements were highly likely to be perceived by a reasonable
person as serious threats of physical harm, the defendant’s history of
having a contentious relationship with certain judges and judicial
employees, his prior conviction for similar threats, the details contained
in the defendant’s statements that illustrated how seriously he consid-
ered exacting revenge against those affiliated with the court system,
the reactions to the defendant’s statements, especially that of a court
employee identified in one of the statements, who immediately reported
the post to the authorities on the same day he discovered the posts,
and the defendant’s failure to express contrition for his statements
thereafter and his additional statements of hostility toward Superior
Court judges and court employees supported a determination that the
statements reasonably could be interpreted as serious expressions of
intent to inflict harm against judges and court employees.
Argued October 15, 2019—officially released June 9, 2020
Procedural History
Information charging the defendant with five counts
each of the crimes of inciting injury to person or prop-
erty and threatening in the second degree, brought to
the Superior Court in the judicial district of New Lon-
don, geographical area number ten, where the court,
Green, J., denied the defendant’s motion to dismiss;
thereafter, the state entered a nolle prosequi as to the
charges of five counts of inciting injury to person or
property; subsequently, the defendant was presented
to the court, Carrasquilla, J., on a conditional plea of
nolo contendere to five counts of threatening in the
second degree; judgment of guilty in accordance with
the plea, from which the defendant appealed to this
court. Affirmed.
Norman A. Pattis, for the appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, state’s
attorney, and David J. Smith, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. This case asks us to apply the ‘‘true
threats’’ doctrine to assess whether the first amendment
protects from criminal prosecution a person who
posted on Facebook a series of statements that, among
other things, advocated the killing of judges and the
arson of courthouses. We conclude that, under the cir-
cumstances of this case, such statements constituted
true threats for which an individual may be convicted
without violating his right to free speech.
The defendant, Edward F. Taupier, appeals from the
judgment of conviction, rendered after a conditional
plea of nolo contendere, of five counts of threatening
in the second degree in violation of General Statutes
§ 53a-62. On appeal, the defendant claims that the trial
court improperly denied his motion to dismiss the
charges because his statements were protected speech
under the first amendment to the United States constitu-
tion and article first, § 4, of the Connecticut constitu-
tion. Because we determine that at least five of the
defendant’s statements constituted ‘‘true threats’’ as a
matter of law and, thus, were not protected speech, we
conclude that the court properly declined to dismiss
the charges to which the defendant pleaded nolo con-
tendere and that the defendant’s conviction must be
affirmed.
The following procedural history and facts are rele-
vant to the defendant’s claim. The defendant has been
involved for some time in a highly contentious marital
dissolution proceeding in the family court involving,
among other things, a custody dispute relating to the
defendant’s minor children. In the course of that pro-
ceeding, the defendant sent, in 2014, a threatening
e-mail to other individuals regarding Judge Bozzuto, the
presiding judge in his case. That e-mail contained the
following statements: ‘‘(1) [t]hey can steal my kids from
my cold dead bleeding cordite filled fists . . . as my
[sixty] round [magazine] falls to the floor and [I’m] dying
as I change out to the next [thirty rounds]; (2) [Bo]zzuto
lives in [W]atertown with her boys and [n]anny . . .
there [are] 245 [yards] between her master bedroom
and a cemetery that provides cover and concealment;
and (3) a [.308 caliber rifle] at 250 [yards] with a double
pane drops [one-half inch] per foot beyond the glass
and loses [7 percent] of [foot pounds] of force [at] 250
[yards]—nonarmor piercing ball ammunition . . . .’’
(Internal quotation marks omitted.) State v. Taupier,
330 Conn. 149, 156–57, 193 A.3d 1 (2018), cert. denied,
U.S. , 139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019).
As a result of this e-mail, the defendant, after a trial
to the court, was convicted of threatening in the first
degree in violation of General Statutes § 53a-61aa (a)
(3), two counts of disorderly conduct in violation of
General Statutes § 53a-182 (a) (2), and breach of the
peace in the second degree in violation of General Stat-
utes § 53a-181 (a) (3). Id., 154. Our Supreme Court sub-
sequently affirmed the defendant’s conviction after
rejecting his claims that the statements contained in
his e-mail were constitutionally protected free speech.
Id., 155.
While he was on house arrest and his appeal from
his prior conviction was pending in our Supreme Court,
the defendant, in January, 2017, posted on Facebook
the statements for which he ultimately was convicted
in the present case. Those statements will be described
in detail later in this opinion.
With respect to those statements, on August 10, 2017,
the state obtained a warrant charging the defendant
with five counts of inciting injury to person or property
in violation of General Statutes § 53a-179a and five
counts of threatening in the second degree in violation
of § 53a-62. Following the defendant’s arrest and
arraignment on these charges, the defendant filed, pur-
suant to Practice Book § 41-8 (5), (8) and (9), a motion
to dismiss the charges against him. See also General
Statutes § 54-56. In his motion, the defendant asserted
that the statements he posted on Facebook were consti-
tutionally protected speech, pursuant to the first and
fourteenth amendments to the United States constitu-
tion and article first, § 4, of the Connecticut constitu-
tion.1 Specifically, he contended that, as a matter of
law, his statements did not rise to the level of advocacy
of imminent lawless action as defined in Brandenburg
v. Ohio, 395 U.S. 444, 447–48, 89 S. Ct. 1827, 23 L. Ed.
2d 430 (1969), or ‘‘true threats’’ as defined in Virginia
v. Black, 538 U.S. 343, 359–60, 123 S. Ct. 1536, 155 L.
Ed. 2d 535 (2003).
On February 8, 2018, the court conducted a hearing
on the defendant’s motion to dismiss. At that hearing,
no witnesses testified. The defendant represented that,
for purposes of adjudicating his motion to dismiss, he
did not contest the facts that were contained in the
affidavit accompanying the arrest warrant (affidavit).
Accordingly, the court relied solely on the averments
contained in the affidavit to assess whether the defen-
dant’s statements on Facebook were constitutionally
protected.
In a memorandum of decision dated May 23, 2018,
the court denied the motion to dismiss. In doing so, the
court construed the facts in the light most favorable to
the state. The court also separately analyzed the factual
averments contained in the affidavit as they related to
the five counts of inciting and as they related to the
five counts of threatening in the second degree. The
court ultimately concluded that a jury reasonably could
find that the defendant’s statements, in light of the con-
text in which they were made, were not protected by
the first amendment because they (1) were advocacy
directed at inciting or producing imminent lawless
action and were likely to do so, and (2) they constituted
true threats.
The defendant and the state subsequently entered
into a plea agreement that was accepted by the court
on September 5, 2018. Pursuant to that agreement, the
state entered a nolle prosequi on each of the five counts
of inciting and the defendant pleaded nolo contendere
to five counts of threatening in the second degree, con-
ditioned on the defendant retaining his right to appeal
the court’s denial of his motion to dismiss the charges.
See Practice Book § 61-6 (a) (2) (A). The court accepted
the defendant’s conditional plea of nolo contendere
after concluding that the prior ruling on the defendant’s
motion to dismiss would be dispositive of the case.
The court, in accordance with the plea agreement, then
imposed on the defendant a total effective sentence of
five years of incarceration, execution suspended after
four months, and three years of probation. This
appeal followed.
I
The defendant’s principal claim2 on appeal is that the
court improperly denied his motion to dismiss because
the statements contained in the affidavit were not true
threats and, thus, were constitutionally protected free
speech. We disagree.
The affidavit sets forth the following relevant facts:
‘‘2. That on Wednesday, January 25, 2017, Superior
Court Chief Judicial Marshal Relford Ward of the [j]udi-
cial [d]istrict of [Middlesex] contacted the Connecticut
State Police Troop F in Westbrook to request an [i]nves-
tigation into communications received by court staff
that they believed to be threatening in nature.
‘‘3. That on Wednesday, January 25, 2017 . . .
Trooper First Class Reid . . . met with and inter-
viewed Chief Clerk Jonathan Field of the [j]udicial [d]is-
trict of [Middlesex]. Field reported that on Wednesday,
January 25, 2017, at approximately [12 p.m.] he received
a phone call from a concerned citizen regarding Face-
book posts [he or she] had viewed and found to cause
concern for Field and others at the court and [the]
Cromwell Police Department. Field said the concerned
citizen identified the posts [to be] from the Facebook
profile of Edward Taupier. . . . Field reported that
upon reading the posts, he found them to be very dis-
turbing and he stated he considered the posts to be
a threat to his own safety and possibly to others at
Middlesex Judicial District Court. . . .
‘‘4. . . . Detective Dunham searched the name
‘Edward Taupier’ on Facebook and was able to locate
and view the profile page that contained the posts . . .
of concern to Field: ‘I JUST GOT NOTICE OF CON-
TEMPT FROM THE STATE [WEBSITE] WITHOUT
GETTING OFFICIAL SERVICE . . . . I GUESS THE
JEWS THAT RUN THE MIDDLETOWN [CLERK’S]
OFFICE (JOE BLACK - JONATHAN FIELD) DON’T
NEED TO GET OFFICIAL SERVICE TO SCHEDULE A
HEARING. THIS IS WHY WE NEED TO START KILL-
ING WITH LOVE THOSE THAT VIOLATE THE CIVIL
RIGHTS OF SOCIETY THAT ARE JUDGES WHO HAP-
PEN TO PRACTICE THE JEWISH FAITH’ (posted [on
January 9, 2017]) ‘CROMWELL POLICE DUPED BY
MENTALLY ILL EX TO THINK CHILDREN ARE
ENDANGERED. . . . THEY SAY THEY DON’T NEED
WARRANTS TO COME IN HOME. . . . POLICE
DON’T NEED WARRANTS, THEY WILL NEED BODY
BAGS NEXT TIME.’ (posted [on January 8, 2017]) KILL
COURT EMPLOYEES AND SAVE THE COUNTRY. . . .
Stop driving the SUV and save a planet . . . this is
what a liberal would say . . . .’ (posted [on January 9,
2017]). This post also included a reply from ‘Edward
Taupier’ that was a repost of an ‘internet meme’ (photo-
graph with words or phrases) that referenced Judge
Elizabeth Bozzuto. The content of the ‘internet meme’
includes the text ‘JUDGE BOZZUTO FOR LIBERTY
TREE CHALLENGE’ ‘The tree of liberty must be
refreshed from time to time with the blood of patriots
and tyrants. Thomas Jefferson’ The comment, added
above the picture [of] ‘Edward Taupier,’ is ‘Nominate
Judge Bozzuto to Liberty Tree Refreshment Challenge.
Spill some blood, save a tree!’
‘‘5. . . . ‘Edward Taupier’s’ post on [January 9, 2017,
states], ‘I JUST GOT NOTICE OF CONTEMPT FROM
THE STATE [WEBSITE] WITHOUT GETTING OFFI-
CIAL SERVICE . . . I GUESS THE JEWS THAT RUN
THE MIDDLETOWN [CLERK’S] OFFICE (JOE BLACK
- JONATHAN FIELD) DON’T NEED TO GET OFFICIAL
SERVICE TO SCHEDULE A HEARING. THIS IS WHY
WE NEED TO START KILLING JUDGES. . . .’ [This
post] suggests [inflicting] violence against judges and
a follower (‘Jennifer Mariano’) of ‘Edward Taupier’
agreed to join him by responding ‘I had someone else
in mind, but we can start with the judges.’
‘‘6. That Detective Dunham viewed numerous posts
and comments on ‘Edward Taupier’s’ Facebook profile
page from the present going back as far as December
15, 2016, that call for ‘killing judges,’ ‘burning courts’
and advocating violence against court employees’. . . .
***
‘‘13. That Facebook records showed several concern-
ing posts, some threatening in nature that this affiant
observed by reviewing the Facebook records under the
screen name of Edward Taupier. The posts observed
on January [8] and January [9], 2017 were previously
identified by Detective Dunham and Trooper First Class
Reid. The posts on January [6], [11], [12], [13] and [14]
were newly identified.
‘‘14. That on January [6], 2017, at [12:34:59 a.m.], the
following message was posted on Taupier’s Facebook.
‘856 days [as a] political prisoner by Dan Fucktard Mal-
loy – with [J]udge Gold and Brenda Hans.’ . . .
‘‘16. That also on January [8], 2017, at [9:43:29 p.m.],
Edward Taupier added [seven] new photographs onto
his Facebook account with the following message
‘Cromwell Police duped by mentally ill ex to think chil-
dren are endangered . . . . They say they don’t need
warrants to come in home. . . . Police don’t need war-
rants, they will need body bags next time.’ These photo-
graphs were added to the timeline photos and contained
an upload IP address . . . . These photographs
appeared to be of Edward Taupier, his two kids and
their dog.
‘‘17. That on January [9], 2017 at [5:04:28 p.m.] the
user ‘Edward Taupier’ . . . posted the following text
on his Facebook account. ‘I just got notice of contempt
from the state [website] without getting official service,
I guess the [J]ews that run the Middletown [clerk’s]
office (Joe Black – Jonathan Field) don’t need to get
official service to schedule a hearing . . . . This is why
we need to start killing judges . . . .’ This post received
a response at [5:07:21 p.m.] from user Jennifer Mariano
. . . who stated, ‘I had someone else in mind, but we
can start with the judges.’ This post followed with a
posted status at [5:06:08 p.m.] that stated the following:
‘I just got notice of contempt from the state [website]
getting official service . . . . I guess the [J]ews that
run the Middletown [clerk’s] office (Joe Black – Jona-
than Field) don’t need to get official service to schedule
a hearing . . . this is why we need to start killing with
love those that violate the civil rights of society that
are judges who happened to practice the [J]ewish faith.
. . .’ This post followed a response at [5:06:46 p.m.]
from user Edward Taupier . . . stating ‘kill court
employees and save the country. . . . stop driving the
SUV and save a planet. . . . this is what a liberal would
say . . . .’ This post received a response from user
Adrienne Baumgartner . . . at [5:07:29 p.m.] stating
‘for that comment [E]d you no doubt could get arrested
[and] also [have it] use[d] against you in [your] custody
case.’ User Adrienne Baumgartner continued with
another response that stated, ‘you really should either
edit or delete that.’ User Edward Taupier . . .
responded at [5:13:56 p.m.] by posting Free Speech con-
taining the Internet meme of Judge Bozzuto for liberty
tree challenge.
‘‘18. That on January [11], 2017, at [8:07:45 p.m.] user
Edward Taupier . . . posted the following text: ‘I was
given [five years] for disturbing [the] peace . . . no
judicial retaliation in [Connecticut] with [j]udges . . .
[by the way, Judge] Devlin said he felt sorry for the
cop . . . and wanted to make it right despite the girl
and her family wanting the maximum . . . [I’m] on $1.3
[million] bond for disturbing the peace . . . kill every
one of these judges.’
‘‘19. That on January [12], 2017 at [3:28:17 p.m.] user
Edward Taupier . . . posted the following text ‘we the
public have no trust in the [Connecticut] judiciary . . .
time to burn the courts down!!’
‘‘20. That on January [13], 2017, at [1:27:57 a.m.] the
following posted status appeared on Taupier’s Face-
book page ‘News flash I am incarcerated-house arrest
for 860+ days, like DT-Rip.’ This was followed by a
response from user Edward Taupier . . . stating ‘for
disturbing peace on 1.3 million dollar bond.’ User
Edward Taupier continued and stated ‘[J]udge David
[P.] Gold lives in Middlefield . . . if you want to ask
him why at his house.’
‘‘21. That on January [14], 2017, at [1:57:35 p.m.] the
following memory was shared from two years ago on
Taupier’s Facebook page. ‘[Connecticut] courts destroy
this every sec of every day! . . . The family courts in
[Connecticut] are run by Beth Bozzuto, the mother [of]
destroying families across the state! Time to burn down
the courts.’
‘‘22. That according to the State of [Connecticut] Judi-
cial [Branch] website Edward Taupier was found guilty
by a [j]ury on October [2], 2015, for threatening [in the
first] [d]egree, [two counts of] [d]isorderly [c]onduct
. . . and [b]reach of [the] [p]eace [in the second]
[d]egree.
‘‘23. . . . Vanessa Valentin, who is Edward Taupier’s
[p]robation [o]fficer . . . confirmed that the Face-
book posting on Taupier’s Facebook page on January
[13], 2017, was correct regarding the days mentioned
in his posted status for the house arrest. Valentin also
confirmed that Judge Gold was the sentencing judge
in Taupier’s criminal case. . . .
***
‘‘27. That an inquiry into the protection order registry
indicated an active protection order against Edward
Taupier. The order was effective as of [January 15, 2016]
and listed Judge Elizabeth Bozzuto as the protected
person. The protection order did not have a set expira-
tion date. The conditions of the protective order were
[the following]: Do not assault, threaten, abuse, harass,
follow, interfere with, or stalk the protected person
(CT01). Stay away from the home of the protected per-
son and wherever the protected person shall reside
(CT03). Do not contact the protected person in any
matter, including by written, electronic or telephone
contact, and do not contact the protected person’s
home, workplace or others with whom the contact
would be likely to cause annoyance or alarm to the
protected person (CTO5). . . .
***
‘‘35. That this affiant believes Facebook posts on Jan-
uary [8], January [9], January [11], January [12] and
January [14], 2017 were threatening in nature. These
posts threaten the Cromwell Police Department, call
for the killing of judges, court employees and [the]
burning of . . . courts. This affiant also believes that
these posts advocate, encourage and incite violence
against persons and property. In addition, Edward Tau-
pier has been previously arrested for similar crimes,
[including] [t]hreatening [in the first] [d]egree, [d]isor-
derly [c]onduct and [b]reach of [the] [p]eace [in the
second] [d]egree by the [s]tate [p]olice.
‘‘36. That a State Police Record Check (SPRC)
showed the following arrest and convictions for Edward
Taupier . . . [t]hreatening [in the first] [d]egree, [two
counts of] [d]isorderly [c]onduct . . . and [b]reach of
[the] [p]eace [in the second] [d]egree.
‘‘37. That based on the aforementioned facts and cir-
cumstances, the affiant believes that probable cause
[exists] and requests that an arrest warrant be issued
for Edward Taupier . . . charging him with inciting
[i]njury to [p]ersons [in] violation of [§] 53a-179a (5
counts) and [t]hreatening [in the second degree in] vio-
lation of [§] 53a-62 (5 counts).’’3 (Emphasis added.)
A
We begin our analysis with the standard of review
applicable to the defendant’s claim. The defendant’s
‘‘motion to dismiss . . . properly attacks the jurisdic-
tion 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. . . . Accord-
ingly, [o]ur review of the trial court’s ultimate legal
conclusion and resulting [decision to deny] . . . the
motion to dismiss [is] de novo.’’ (Citations omitted;
internal quotation marks omitted.) State v. Cyr, 291
Conn. 49, 56, 967 A.2d 32 (2009); see also State v. Pelella,
327 Conn. 1, 9 n.9, 170 A.3d 647 (2017) (affording plenary
review to trial court’s decision to grant defendant’s
motion to dismiss). With respect to a motion to dismiss
in a criminal case on the ground that the conduct alleged
by the state is protected as free speech, our Supreme
Court also has stated: ‘‘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 sufficiency. General Statutes § 54-56 pro-
vides that [a]ll courts having jurisdiction of criminal
cases . . . may, at any time, upon motion by the defen-
dant, 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. When assessing
whether the state has sufficient evidence to show proba-
ble cause to support continuing prosecution [following
a motion to dismiss under § 54-56], the court must view
the proffered [evidence], and draw reasonable infer-
ences from that [evidence], in the light most favorable
to the state. . . . The quantum of evidence necessary
to [overcome a motion to dismiss] . . . is less than the
quantum necessary to establish proof beyond a reason-
able 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 reason-
able caution to believe that the [defendant had] commit-
ted the crime. . . . Thus, the trial court must ask
whether the evidence would allow a person of reason-
able 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 reason-
able 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.’’ (Citations
omitted; emphasis omitted; footnote omitted; internal
quotation marks omitted.) State v. Pelella, supra, 327
Conn. 18–19.
Although the state agrees that this court should
engage in plenary review of the trial court’s ultimate
conclusion that the defendant’s speech constituted true
threats that were not protected by the first amendment,
it asserts that the trial court’s ‘‘factual findings’’ in this
case are subject to the ‘‘clearly erroneous’’ standard of
review that is typically employed to review a trial court’s
findings of fact. We are not persuaded by the state’s
assertion.
In this case, the trial court did not make any findings
of fact. The court did not hear any testimony at the
hearing on the motion to dismiss and did not make any
credibility determinations. Instead, the court engaged
in a legal review of the uncontested factual averments
contained in the affidavit, viewed in the light most favor-
able to the state, in order to determine whether a person
of reasonable caution could view the defendant’s state-
ments as true threats. In these circumstances, the
clearly erroneous standard simply does not apply and
no deference to the trial court’s recitation of the facts
is required.4 See State v. Lewis, 273 Conn. 509, 516–17,
871 A.2d 986 (2005) (‘‘[a]lthough we generally review
a trial court’s factual findings under the ‘clearly errone-
ous’ standard, when a trial court makes a decision based
on pleadings and other documents, rather than on the
live testimony of witnesses, we review its conclusions
as questions of law’’); see also State v. Pelella, supra,
327 Conn. 9 n.9 (engaging in de novo review of facts
where trial court not required to make any credibility
or other factual findings).
We also highlight two issues regarding the record
in this case that make our review of the defendant’s
conviction more difficult. First, the affidavit in the
record recites approximately ten statements that the
defendant made on Facebook. The record is unclear,
however, regarding which five statements recited in
the affidavit constitute the statements on which the
defendant was convicted of five counts of threatening
in the first degree.5 Accordingly, in our view, as long
as we are able to conclude that the affidavit recites five
statements made by the defendant that can be charac-
terized as true threats, it is of no moment that other of
the defendant’s statements recited in the affidavit do
not rise to the level of a true threat. Counsel for the
defendant conceded as much during oral argument to
this court.6
Second, the record also is unclear as to the statutory
subsection and subdivision of § 53a-62 under which the
defendant was charged and convicted.7 When the court
put the defendant to plea and conducted its plea canvass
of him, neither the court nor the defendant specified
that he was pleading nolo contendere to a particular
statutory subsection or subdivision of § 53a-62.8 In addi-
tion, the information did not specify the subsection or
subdivision of § 53a-62 under which the state charged
the defendant. Accordingly, in light of the defendant’s
failure to clarify with the trial court the subsection or
subdivision of § 53a-62 to which he was pleading nolo
contendere, this court must affirm his conviction if we
determine that at least five of the statements described
in the affidavit can be characterized as unprotected true
threats prohibited by any subsection or subdivision of
§ 53a-62.
For purposes of our analysis, we assess whether the
defendant’s five statements constituted unprotected
true threats under § 53a-62 (a) (2) (B).9 This means that
we must assess whether there was probable cause to
support continuing a constitutional prosecution against
the defendant under each count for ‘‘threaten[ing] to
commit [a] crime of violence in reckless disregard of
the risk of causing such terror . . . .’’ General Statutes
§ 53a-62 (a) (2) (B).
B
Having established this court’s standard of review
and having addressed other issues germane to our
review of the defendant’s claim on appeal, we now
consider the merits of the defendant’s claim that the
trial court improperly denied his motion to dismiss
because his statements were not true threats as a matter
of law and were, indeed, protected speech under the
first amendment to the United States constitution. In
essence, the defendant argues that none of the state-
ments that he made that are set forth in the affidavit
constitute true threats because an objective listener
would not readily interpret these statements to be true
threats.10 Moreover, the defendant asserts that the court
improperly denied his motion to dismiss because the
affidavit, even when viewed in the light most favorable
to the state, would not allow a person of reasonable
caution to believe that at least five of his statements
were highly likely to be perceived by a reasonable per-
son as a serious threat of physical harm. We are not per-
suaded.
We begin with a review of the first amendment princi-
ples applicable to statutes that criminalize threatening
speech. ‘‘The [f]irst [a]mendment, applicable to the
[s]tates through the [f]ourteenth [a]mendment, pro-
vides that Congress shall make no law . . . abridging
the freedom of speech. The hallmark of the protection
of free speech is to allow free trade [of] ideas—even
ideas that the overwhelming majority of people might
find distasteful or discomforting. . . . Thus, the [f]irst
[a]mendment ordinarily denies a [s]tate the power to
prohibit dissemination of social, economic and political
doctrine [that] a vast majority of its citizens believes
to be false and fraught with evil consequence. . . .
‘‘The protections afforded by the [f]irst [a]mendment,
however, are not absolute, and we have long recognized
that the government may regulate certain categories of
expression consistent with the [c]onstitution. . . . The
[f]irst [a]mendment permits restrictions [on] the con-
tent 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.’’ (Internal
quotation marks omitted.) Haughwout v. Tordenti, 332
Conn. 559, 570, 211 A.3d 1 (2019).
‘‘Thus, for example, a [s]tate may punish those words
[that] by their very utterance inflict injury or tend to
incite an immediate breach of the peace. . . . Further-
more, the constitutional guarantees of free speech and
free press do not permit a [s]tate to forbid or proscribe
advocacy of the use of force or of law violation except
[when] such advocacy is directed to inciting or produc-
ing imminent lawless action and is likely to incite or
produce such action. . . . [T]he [f]irst [a]mendment
also permits a [s]tate to ban a true threat.’’ State v.
Krijger, 313 Conn. 434, 449, 97 A.3d 946 (2014).
‘‘[T]rue threats . . . encompass those statements
[through which] the speaker means to communicate 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 threat-
ened violence will occur. . . .
‘‘[W]e 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.
. . . In the context of a threat of physical violence,
[w]hether a particular statement may properly be con-
sidered to be a [true] 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. . . .
[A]lleged threats should be considered in light of their
entire factual context, including the surrounding events
and reaction of the listeners. . . .
‘‘[T]o ensure that only serious expressions of an
intention to commit an act of unlawful violence are
punished, as the first amendment requires, the state
[actor] 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 standard 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 standard [the state
actor is] required to present evidence demonstrating
that a reasonable listener, familiar with the entire fac-
tual context of the defendant’s statements, would be
highly likely to interpret them as communicating a genu-
ine threat of violence rather than protected expression,
however offensive or repugnant.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Haughwout v. Tordenti, supra, 332 Conn. 571–72. In
determining whether an objective listener or reader
would consider a statement to be a true threat, our
inquiry is more dependent on whether the statement
reasonably could be interpreted as a serious expression
of intent to inflict harm rather than whether the state-
ment conveys an intent to imminently inflict harm. See
State v. Pelella, supra, 327 Conn. 11–17.
In analyzing whether the trial court properly denied
the defendant’s motion to dismiss, we consider the fol-
lowing five statements that the defendant made in Janu-
ary, 2017, and that are described in the affidavit: (1)
his January 9, 2017 Facebook post, in which he, in part,
stated, ‘‘THIS IS WHY WE NEED TO START KILLING
WITH LOVE THOSE THAT VIOLATE THE CIVIL
RIGHTS OF SOCIETY THAT ARE JUDGES WHO HAP-
PEN TO PRACTICE THE JEWISH FAITH’’; (2) his Janu-
ary 9, 2017, Facebook post, in which he, in part, stated,
‘‘KILL COURT EMPLOYEES AND SAVE THE COUN-
TRY’’; (3) his January 11, 2017 Facebook post, in which
he, in part, stated ‘‘kill every one of these judges’’; (4)
his January 12, 2017 Facebook post, in which he, in
part, stated, ‘‘time to burn the courts down!!’’; and (5)
his January 14, 2017 Facebook post, in which he, in
part, stated, ‘‘[t]ime to burn down the courts.’’11 In sum,
these five statements consist of alleged threats to kill
judges and court employees and to burn courthouses.
Indeed, in the absence of any factual context, these
statements, viewed in the light most favorable to the
state, reasonably could be interpreted by themselves
as serious expressions of the defendant’s intent to inflict
harm against judges and court employees.
We are mindful, however, that ‘‘a determination of
what a defendant actually said is just the beginning of
a threats analysis. Even when words are threatening
on their face, careful attention must be paid to the
context in which those statements are made to deter-
mine if the words may be objectively perceived as
threatening.’’ State v. Krijger, supra, 313 Conn. 453.
Thus, our Supreme Court has stated that ‘‘[a]lleged
threats should be considered in light of their entire
factual context . . . .’’ (Internal quotation marks omit-
ted.) State v. Pelella, supra, 327 Conn. 12. Moreover,
our Supreme Court has identified several factors that
a court may use to assess the factual context in which
an alleged threat is made, including (1) the history of the
relationship between the person who made the alleged
threat and the person or group to whom it was
addressed, (2) the reaction of the statement’s recipients,
and (3) whether the person who made the statement
showed contrition immediately after the statement was
made. Id., 12, 20–22 (in determining whether statement
is true threat, reviewing court should consider history of
relationship between defendant and threatened person
and reaction of statement’s listener or reader); State v.
Krijger, supra, 457–59 (whether defendant was immedi-
ately contrite after making alleged threat is a factor in
determining whether objective listener would interpret
statement as true threat); State v. Cook, 287 Conn. 237,
256, 947 A.2d 307 (considering relationship between
defendant and threatened person to determine whether
‘‘the evidence necessarily was insufficient to support a
finding that the defendant’s statements and conduct
amounted to a true threat’’), cert. denied, 555 U.S. 970,
129 S. Ct. 464, 172 L. Ed. 2d 328 (2008); State v. DeLoreto,
265 Conn. 145, 156–57, 827 A.2d 671 (2003) (in determin-
ing whether statement is true threat, surrounding events
and reaction of listeners should be considered). Having
assessed the entire factual context in which these five
statements were made, we conclude for the following
reasons that these statements reasonably could be inter-
preted as serious expressions of intent to inflict harm,
and thus, an objective listener could interpret them as
true threats.
1
Parties’ Prior Relationship
In determining whether the defendant’s five state-
ments about killing judges and court employees and
burning courthouses are serious expressions of intent
to inflict harm on these groups, we first consider the
relationship between the defendant and the judges and
court employees, which are the groups of individuals
whom his statements concern. See State v. Pelella,
supra, 327 Conn. 20–21. We conclude that the history
of this relationship supports a determination that these
statements constituted serious expressions of intent to
inflict harm on judges and court employees.
Significant to our assessment of this factor is that the
defendant had previously been convicted for sending a
threatening e-mail about a judge. See State v. Taupier,
supra, 330 Conn. 156–57, 164. Indeed, the defendant
had undergone a contentious divorce proceeding and
had made threatening remarks about Judge Bozzuto,
the judge presiding over the proceeding. In that case,
our Supreme Court observed that there was a ‘‘conten-
tious history between the defendant and Judge Bozzuto
. . . .’’ Id., 184. Moreover, in that case, the court stated
that the trial court could ‘‘reasonably . . . [infer] . . .
that the defendant harbored [animosity and frustration]
toward the family court system, which Judge Bozzuto
represented.’’ Id., 192. Thus, prior to making the five
statements in which he allegedly threatened to kill
judges and court employees and to burn courthouses,
the defendant already had a contentious relationship
with at least one judge.
Furthermore, the defendant’s other statements
described in the affidavit add context to the threatening
nature of the five statements under review and support
a conclusion that the defendant had a contentious rela-
tionship with the court system that was colored by the
defendant’s frustration with the manner in which his
family matter was being adjudicated. Indeed, even while
on house arrest for making threatening statements
about Judge Bozzuto in 2014, he continued to express
hostility toward her in his January, 2017 Facebook
posts. In one post, the defendant stated that ‘‘the family
courts in [Connecticut] are run by Beth Bozzuto,’’ and
then he referred to Judge Bozzuto as ‘‘the mother [of]
destroying families across the state . . . .’’ In another
post, the defendant ‘‘[n]ominate[d] Judge Bozzuto [for]
the Liberty Tree Refreshment Challenge.’’ He stated that
‘‘[t]he tree of liberty must be refreshed from time to
time with the blood of patriots and tyrants’’ and then
called for ‘‘[s]pill[ing] some blood [to] save a tree
. . . .’’
His disdain for judges, however, was not limited to
Judge Bozzuto. Indeed, the defendant also expressed
contempt and hostility toward two other judges with
whom he had prior dealings. In one post, the defendant
wrote disapprovingly of Judge Devlin, stating, ‘‘I was
given [five years] for disturbing [the] peace . . . no
judicial retaliation in [Connecticut] with [j]udges . . .
[by the way, Judge] Devlin said he felt sorry for the
cop . . . and wanted to make it right despite the girl
and her family wanting the maximum . . . [I’m] on $1.3
[million] bond for disturbing the peace. ‘‘ The defendant
also made a statement about Judge Gold, who presided
over his sentencing following his first conviction. In
one post, he wrote, ‘‘News flash I am incarcerated-
house arrest for 860+ days, like DT-Rip . . . for dis-
turbing peace on 1.3 million dollar bond.’’ He then con-
tinued, ‘‘[J]udge David [P.] Gold lives in Middlefield
. . . if you want to ask him why at his house.’’
The defendant’s hostility toward the court system
manifested in statements that he made about others
affiliated with the court system. Indeed, in one post, he
alluded to receiving notice of a hearing in an improper
manner, which he blamed on two judicial employees.
In this post, the defendant stated, ‘‘JUST GOT NOTICE
OF CONTEMPT FROM THE STATE [WEBSITE] WITH-
OUT GETTING OFFICIAL SERVICE, I GUESS THE
JEWS THAT RUN THE MIDDLETOWN [CLERK’S]
OFFICE (JOE BLACK - JONATHAN FIELD) DON’T
NEED TO GET OFFICIAL SERVICE TO SCHEDULE
A HEARING.’’
Moreover, the details contained in the other state-
ments in the affidavit and those statements for which
he had been previously convicted weigh in favor of
concluding that the five statements under review were,
indeed, serious expressions of intent to inflict harm on
judges and court employees. In particular, the detail
laden statements that the defendant made about Judges
Bozzuto and Gold support this conclusion.
With respect to Judge Bozzuto, the defendant investi-
gated where she lived and described, in detail, a plan
to fire bullets into the window of her master bedroom.
See State v. Taupier, supra, 330 Conn. 156–57. Specifi-
cally, he stated, ‘‘ ‘[Bo]zzuto lives in [W]atertown with
her boys and [n]anny . . . there [are] 245 [yards]
between her master bedroom and a cemetery that pro-
vides cover and concealment’; and . . . ‘a [.308 caliber
rifle] at 250 [yards] with a double pane drops [one-half
inch] per foot beyond the glass and loses [7 percent]
of [foot pounds] of force [at] 250 [yards]—nonarmor
piercing ball ammunition . . . .’ ’’ Id. Similarly, the
defendant researched where Judge Gold lived and, on
Facebook, the defendant posted the town in which
Judge Gold resided so that readers could go to his home
to ask him why he sentenced the defendant in the way
that he did.
The details contained in these statements, which
included the towns in which these judges reside and a
well calculated plan to fire into Judge Bozzuto’s master
bedroom, weigh against concluding that the five state-
ments under review were merely ‘‘spontaneous out-
burst[s], rooted in the defendant’s anger and frustration,
[which, by themselves, are] insufficient to establish that
[the statement] constituted a true threat.’’ State v.
Krijger, supra, 313 Conn. 459. Rather, these details
reflected a degree of planning or research and, thus,
support an interpretation of the statements under
review as serious expressions of the defendant’s intent
to harm those affiliated with the court system.
In sum, the defendant’s 2017 Facebook posts indicate
that his disdain for the court system had not abated
since he sent a threatening e-mail about Judge Bozzuto
in 2014. Indeed, despite being convicted for statements
that he made in 2014 about Judge Bozzuto, the defen-
dant continued making statements in which he
expressed his hostility toward her. In addition to what
he stated about Judge Bozzuto, he made statements
about others affiliated with the court system, including
Judge Devlin, Judge Gold, Black and Field, as well as
Jewish judges and court employees, generally. More-
over, the details contained in some of the defendant’s
statements illustrate how seriously he considered
exacting revenge against those affiliated with the court
system. Viewing the uncontested facts in the affidavit
in the light most favorable to the state, we conclude
that the defendant’s history of having a contentious
relationship with certain judges and judicial employees,
as well as his detail laden statements about them, sup-
port a determination that the five allegedly threatening
statements under review reasonably could be interpre-
ted as serious expressions of intent to inflict harm
against judges and court employees.
2
Reaction of the Statement’s Recipient
Next, we consider the reaction of those subjected
to the defendant’s remarks. This consideration, too,
weighs in favor of concluding that the defendant’s five
statements about killing judges and court employees
and burning down courthouses reasonably could be
interpreted as serious expressions of intent to inflict
harm.
In determining whether a statement is a true threat,
although we ask whether an objective listener or reader
would interpret it as such, the subjective reaction of
the statement’s listener or reader is a factor that this
court may consider in determining what an objective
listener’s or reader’s interpretation might be. See State
v. Krijger, supra, 313 Conn. 459–60. In weighing this
factor, we are mindful that ‘‘the listener’s reaction of
concern or fear need not be dramatic or immediate,
and the apparently mixed emotions of the listeners are
not dispositive.’’ Haughwout v. Tordenti, supra, 332
Conn. 581. A court, however, may conclude that this
factor weighs against determining that an objective lis-
tener would not interpret a statement as a true threat
if, after listening to or reading the statement, the listener
or reader delays in reporting it to authorities, responds
to the statement’s maker in an antagonistic manner, or
states that he or she did not believe that the statement’s
maker had threatened to harm him or her. See State v.
Krijger, supra, 313 Conn. 459 n.12 (defendant’s remarks
not true threat, in part, because person at whom alleged
threat was directed waited two days to report threat
to police); cf. State v. Moulton, 310 Conn. 337, 369 n.26,
78 A.3d 55 (2013) (‘‘the fact that [the listener] took
no immediate action following the defendant’s [alleged
threat] and waited [two days] . . . to [report] the mat-
ter [is] . . . relevant evidence as to whether the [defen-
dant’s statement] was perceived as a real or true
threat’’). But see State v. Taupier, supra, 330 Conn.
158–59, 191–92 (defendant’s statement in e-mail is true
threat, even though reader of e-mail waited several days
to report it).
Moreover, assessing the reactions of those who hear
or read the statement is instructive in determining the
extent to which the alleged threat has generated ‘‘the
social costs of . . . apprehension and disruption
directly caused by the threat . . . .’’ State v. Pelella,
supra, 327 Conn. 17. Indeed, speech with significant
social costs is more likely to fall under a category of
content that may be restricted because it is ‘‘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.’’ Virginia v.
Black, supra, 538 U.S. 358–59; State v. Pelella, supra, 10.
The reactions to the defendant’s Facebook posts are
the sorts of feelings of fear and the disruptions that
courts have sought to prevent by not providing shelter
to statements that are true threats under the umbrella
of the first amendment. See Haughwout v. Tordenti,
supra, 332 Conn. 571. Indeed, the defendant’s January
9, 2017 post, in which he called for court employees to
be killed, drew swift condemnation. One Facebook user
replied, ‘‘for that comment [E]d, you no doubt could
get arrested [and] also [have that] use[d] against you in
[your] custody case.’’ She continued, ‘‘you really should
either edit or delete that.’’12
On January 25, 2017, a concerned individual, who
wished to remain anonymous, contacted Field about
statements posted on Facebook by the defendant that
this individual ‘‘found to cause concern for Field and
others at the court and the Cromwell Police Depart-
ment.’’13 After reading copies of the posts that the con-
cerned individual sent to him, Field, who was named
in one of the defendant’s posts, ‘‘found them to be very
disturbing and . . . stated [that] he considered the
posts to be a threat to his own safety and possibly
to others at [the] Middlesex Judicial District Court.’’
Indeed, Field was so concerned by the post containing
his name, that he reported it to the authorities on the
same day that the concerned individual had con-
tacted him.
Viewing the uncontested facts in the affidavit in the
light most favorable to the state, we conclude that the
reactions to the defendant’s statements, especially that
of Field, who worked for the court system and was
named in one of the posts, weigh in favor of concluding
that the defendant’s five statements reasonably could
be interpreted as serious expressions of intent to inflict
harm against judges and court employees.
3
The Defendant’s Contrition
Finally, we assess the extent to which the defendant
expressed contrition for making the alleged threat and
the temporal proximity of the contrition to when the
threat was made. Our Supreme Court has stated that a
‘‘defendant’s contrition immediately following [an
alleged threat being made] is decidedly at odds with
the view that, just moments beforehand, [the defendant]
had communicated a serious threat to inflict grave
bodily injury or death on [the allegedly threatened per-
son].’’ State v. Krijger, supra, 313 Conn. 458. If the
defendant was contrite immediately after making the
alleged threat, this may indicate that the defendant’s
statement was merely ‘‘a spontaneous outburst, rooted
in the defendant’s anger and frustration, [which, by
itself, is] insufficient to establish that [the statement]
constituted a true threat.’’ Id., 459. Indeed, in Krijger,
our Supreme Court determined that the fact that the
defendant in that case ‘‘immediately . . . apologized
for his behavior’’ weighed against concluding that his
statement was a true threat. See id., 457–59.
In the present case, however, the defendant not only
expressed no contrition immediately after January 9,
2017,14 but he made many more threatening statements
on and after that date. In this case, the defendant’s
conduct after making his first allegedly threatening
statement in January, 2017, is, indeed, a far cry from
the defendant’s immediate contrition in Krijger. See id.,
457–58. Viewing the uncontested facts in the affidavit
in the light most favorable to the state, we conclude
that the third factor weighs in favor of concluding that
the defendant’s five statements reasonably could be
interpreted as serious expressions of intent to inflict
harm against judges and court employees. Having
reviewed the factual context of the defendant’s five
statements, we conclude that they reasonably could be
interpreted as serious expressions of intent to inflict
harm against judges and court employees and that an
objective listener or reader could interpret these state-
ments as true threats.
Because the uncontested facts in the affidavit before
the court, viewed in the light most favorable to the
state, would allow a person of reasonable caution to
believe that at least five of the defendant’s statements
in the affidavit were highly likely to be perceived by a
reasonable person as serious threats of physical harm,
we conclude that there was probable cause to support
continuing a constitutional prosecution against the
defendant under each count for ‘‘threaten[ing] to com-
mit [a] crime of violence in reckless disregard of the
risk of causing such terror.’’ General Statutes § 53a-62
(a) (2) (B). Thus, the trial court properly denied the
defendant’s motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the defendant referenced the state constitution in his motion
to dismiss, he did not independently brief a state constitutional claim or
argue that the state constitution provides greater protection of speech than
that provided by our federal constitution. The defendant’s motion to dismiss
also appears to contain a scrivener’s error by referring to article first, § 7,
of the state constitution. The defendant represents in his brief on appeal
that he had intended to refer to article first, § 4. In any event, presumably
because the defendant did not independently brief a state constitutional
claim, the trial court did not address whether the defendant’s statements
were protected by our state constitution.
The defendant, on appeal, claims that his statements that are described
in the affidavit are protected speech under article first, §§ 4, 5, and 14, of
the Connecticut constitution because those provisions require that, in order
for a statement to be classified as an unprotected true threat, the statement’s
maker must have made the statement with a specific intent to terrorize the
target of the threat. Our Supreme Court, however, rejected this same claim.
See State v. Taupier, supra, 330 Conn. 174–75. In Taupier, our Supreme
Court stated that ‘‘the Connecticut constitution does not require the state
to prove that a defendant had the specific intent to terrorize the target of the
threat before that person may be punished for threatening speech directed
at a[n] . . . individual.’’ Id. Thus, we reject this claim on its merits in light
of Taupier; see id.; and need not address it in further detail.
2
At oral argument before this court, the defendant conceded that the only
claim that he makes on appeal is that the trial court improperly denied his
motion to dismiss because the statements contained in the affidavit were
not true threats and, thus, constituted speech that was constitutionally
protected. Accordingly, we address only the five counts charging the defen-
dant with threatening in the second degree in violation of § 53a-62 and do
not address the five counts charging him with inciting injury to person or
property in violation of § 53a-179a.
3
In the information that it filed, the state reiterated that the defendant’s
statements that resulted in him being charged with five counts of threatening
in the second degree were made on January 8, 9, 11, 12, and 14, 2017.
4
In support of its assertion that this court must accept the trial court’s
subsidiary factual findings unless they are clearly erroneous, the state relies
on State v. Krijger, 313 Conn. 434, 447, 97 A.3d 946 (2014). That reliance is
misplaced. The defendant in Krijger appealed from a judgment of conviction
rendered after a jury trial, in which the jury heard witnesses, made credibility
determinations, and found facts. Thus, Krijger involves a different proce-
dural posture from the present case.
5
When the court conducted the plea canvass of the defendant, the state
recited the factual basis underlying the defendant’s written plea of nolo
contendere as follows: ‘‘[I]n early January . . . 2017, court personnel in the
Middletown courthouse were alerted to some information that had been
posted online . . . that they considered very threatening to various employ-
ees of the courthouse there.
‘‘During the course of the investigation, it was learned that approximately
from January 8, 2017, going on to approximately January 14, 2017, the
defendant posted and allowed to continue to be posted various threats to
various employees of the state.
‘‘Specifically, there were comments that police would be in body bags
the next time they came without a warrant. There were threats directed
specifically to kill the court employees at these courts. There were threats
to kill the judges of the court, and with some identifying features. I don’t
want to put the names of them, but of specific judges that were listed on that.
‘‘There was also threats to . . . burn down the courthouse. And in fact,
he did that twice, a specific threat to burn down the courthouse, threatened
the court employees, including judges, with bodily harm. And at one point,
I would note, gave out the town where one of the judges resided.
‘‘Taken together, Your Honor, the threats to specifically harm specific
employees, a specific place to do damage, and obviously, cause fear to the
people that work there, the state would say that those charges would satisfy
the requirements, at this point anyway, for the charges of threatening.’’
6
See footnote 11 of this opinion for the methodology that we used to select
the five statements that we assess for purposes of our true threats analysis.
7
General Statutes § 53a-62 provides in relevant part: ‘‘(a) A person is
guilty of threatening in the second degree when: (1) By physical threat, such
person intentionally places or attempts to place another person in fear of
imminent serious physical injury, (2) (A) such person threatens to commit
any crime of violence with the intent to terrorize another person, or (B)
such person threatens to commit such crime of violence in reckless disregard
of the risk of causing such terror . . . .’’
8
‘‘The Court: All right. And the state’s recitation regarding the plea agree-
ment, is that your understanding of the plea agreement that you are submit-
ting today?
‘‘[The Defendant]: Yes. And I can appeal. That’s correct, right?
‘‘[Defense Counsel]: Yes.
‘‘The Court: Okay. So, Mr. Taupier, you have filed your plea under nolo
contendere. And by doing so, you’re saying that you don’t contest the case,
and believe that it’s in your best interest to enter a plea of nolo contendere
and accept the proposed disposition, rather than risk going to trial and
potentially face a greater sentence if convicted, is that correct, sir?
‘‘[The Defendant]: Yes.
‘‘The Court: All right. And you understand that I will still be making a
finding of guilty though?
‘‘[The Defendant]: Yes.
***
‘‘The Court: All right. And did your attorney explain to you what you’re
pleading guilty to, sir? You’re pleading guilty to five counts of threatening
in the second degree.
‘‘[The Defendant]: Yes.
‘‘The Court: All right. Did your attorney explain to you the elements of
each crime that you’re pleading guilty to?
‘‘[The Defendant]: Yes.
‘‘The Court: And did he go over with you the evidence which would prove
each element beyond a reasonable doubt?
‘‘[The Defendant]: Yes.
***
‘‘The Court: Okay. And did he go over with you the terms of the plea
agreement, sir?
‘‘[The Defendant]: Yes.’’ (Emphasis added.)
9
We select this particular subdivision because it requires proof of reckless-
ness rather than specific intent and, therefore, is most easily satisfied. Under
this subdivision, the defendant’s five statements are clearly unprotected
true threats for which there is probable cause to believe that he threatened
to commit a crime of violence (i.e., murder and arson) with reckless disregard
of the risk of causing terror.
10
The defendant argues that, in order to criminalize speech, the speech
must meet both the standard of advocacy of imminent lawless action, as
set forth in Brandenburg v. Ohio, supra, 395 U.S. 447–48, and that of true
threats, as set forth in Virginia v. Black, supra, 538 U.S. 359–60. We disagree.
Our Supreme Court has stated that advocacy of imminent lawless action
and true threats theories of criminal liability are distinct. See State v. Parnoff,
329 Conn. 386, 394–95, 405, 186 A.3d 640 (2018). In Parnoff, the court
declined to consider whether the defendant’s words constituted true threats
because the state pursued the case under an advocacy of imminent lawless
action theory of criminal liability and not a true threats theory. See id.Indeed, to consider whether a statement is a true threat by using the same
analysis used to determine whether a statement constitutes advocacy of
imminent lawless action is the equivalent of forcing a ‘‘ ‘square peg [into a]
round hole’ . . . .’’ Id., 405. Thus, for the reasons articulated by our Supreme
Court, we disagree with the defendant and conclude that a person’s state-
ment may, indeed, be a true threat as a matter of law while not constituting
advocacy of imminent lawless action.
11
Although the record is unclear regarding which five statements recited
in the affidavit constitute the statements on which the defendant was con-
victed of five counts of threatening in the second degree; see part I A of
this opinion; the affidavit states that Facebook posts made by the defendant
on January 8, 9, 11, 12, and 14, 2017, were ‘‘threatening in nature.’’ There
are seven Facebook posts made by the defendant on these dates that are
described in the affidavit. At oral argument before this court, the defendant
conceded that, when reviewing his claim, this court could analyze the state-
ments he made on these dates for purposes of determining whether the
court properly denied his motion to dismiss the charges.
In the foregoing analysis, we conclude that at least five of these statements
could be characterized as true threats. We take no position on whether the
remaining statements in the affidavit constitute true threats as a matter
of law.
12
We note that, in addition to the user who condemned the defendant’s
call to kill court employees, another user appeared encouraged by the defen-
dant’s call to kill judges. Indeed, in response to the defendant’s post, this
other user wrote, ‘‘I had someone else in mind, but we can start with
the judges.’’
13
The affidavit does not specify the amount of time that lapsed between
the concerned individual reading the defendant’s statements and his or her
reporting them to Field on January 25, 2017.
14
The defendant published one Facebook post on January 6, 2017, and
one on January 8, 2017. Of the five statements we analyze in this opinion,
the earliest was made on January 9, 2017. Thus, for purposes of our analysis,
we assess the manner in which the defendant behaved (i.e., subsequent
Facebook posts he made) from January 9 to 14, 2017, which is the date of
the last of the defendant’s Facebook posts described in the affidavit.