Dissent - State v. Daniel G. ( 2014 )

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STATE v. DANIEL G.—DISSENT
MCDONALD, J., concurring in part and dissenting
in part.
I respectfully dissent from parts I, III and IV of the
majority opinion and concur as to part II.
ENGAGING IN PURSUIT
As to part I of the majority opinion, I do not agree that
the state produced sufficient evidence to reasonably
support the charge of engaging in pursuit ‘‘at Wall
Street’’ in violation of General Statutes § 14-223 (b). I
accordingly respectfully dissent as to part I.
In describing some of the facts the jury could find
and in sustaining the conviction, the majority points to
evidence that Sergeant Todd Bergeson, after he
received a radio call from Officer Deana Nott requesting
a motor vehicle stop to issue a ticket to the defendant,
Daniel G., for interfering or creating a disturbance, went
to Jefferson Street near the CVS pharmacy seeking the
defendant’s van. In doing so, the Sergeant activated his
cruiser’s siren and overhead lights which turned on
his dashboard camera. On Jefferson Street, Sergeant
Bergeson observed the defendant’s van ahead of him
where it turned left onto Wall Street and thereafter
turned onto Summer Street, then Redden Avenue, then
Colman Street and into his residence, at times at speeds
of a few miles per hour.
The majority rejects the defendant’s claim that the
videodisc produced from the dashboard camera in Ser-
geant Bergeson’s cruiser conclusively established that
the defendant did not increase his speed or try to elude
Sergeant Bergeson at Wall Street,1 and concludes that
the jury reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt.
On appeal, we must ask whether there is a ‘‘reason-
able view of the evidence that supports the jury’s verdict
of guilty . . . .’’ (Internal quotation marks omitted.)
State v. Silva, 285 Conn. 447, 454, 939 A.2d 581 (2008).
The statute required by its plain terms that the defen-
dant increase his speed in an attempt to escape or elude
an officer when signaled to stop by the use of the siren
or flashing lights. In this case, the videodisc from Ser-
geant Bergeson’s cruiser does not support the § 14-223
(b) conviction, but rather renders the verdict unreason-
able in view of the physical facts recorded by electronic
means considered with the trial testimony and audio
recordings of police radio transmissions.2 See State v.
DeJesus, 236 Conn. 189, 196, 672 A.2d 488 (1996); State
v. Bradley, 39 Conn. App. 82, 91, 663 A.2d 1100 (1995),
cert. denied, 236 Conn. 901, 670 A.2d 322 (1996).
As the trial court record reflects, the New London
police cruisers were equipped with dashboard video
cameras, which produced videodiscs of much of the
incident. Additionally, audio discs of the actual mes-
sages between officers; and between the defendant and
the police dispatcher; and between the police dis-
patcher and police officers were produced. These discs
were introduced at the defendant’s trial. Similar video
evidence was sufficient to convince our Supreme Court
in State v. Santos, 267 Conn. 495, 838 A.2d 981 (2004),
to reverse a trial court’s decision after its review of a
videotape which it found to be contrary to the physical
facts testified to before that trial court.
As to Sergeant Bergeson’s signal to stop, the video
disc reflects that he used the siren and lights to pass
through an intersection and through two red lights
before entering Jefferson Street well behind the defen-
dant’s vehicle. Then, in following at a ‘‘considerable
distance’’3 behind the defendant’s vehicle, the siren and
lights were used to clear the left hand lane of Jefferson
Street of a vehicle between the Sergeant’s cruiser and
the defendant’s van. In contrast, the common, recog-
nized method, familiar to all motorists, for signaling a
stop is that the police cruiser using its siren or flashing
lights pulls directly behind the vehicle to be stopped
so the cruiser can be parked close to the rear of the
stopped vehicle. This use of flashing lights to stop a
vehicle is described in the prosecutor’s summation
when he referred to a driver looking at flashing lights
in the ‘‘rearview mirror.’’ See footnote 17 of this opinion.
The videodisc shows Sergeant Bergeson first reached
that position directly behind and close to the defen-
dant’s van at the top of Wall Street on Summer Street.
As to increasing speed ‘‘at Wall Street,’’ the videodisc
shows the defendant’s van was far ahead of Sergeant
Bergeson at the intersection of Jefferson Street and
Wall Street, but, at the top of Wall Street, Sergeant
Bergeson was directly and closely at the back of the
defendant’s van. This shows the defendant had not
increased his speed away from Sergeant Bergeson’s
cruiser at Wall Street as charged in the information and
testified to by Sergeant Bergeson as ‘‘accelerating up
Wall Street’’ and as ‘‘driving away from’’ him.4 Further-
more, Sergeant Bergeson did not testify to any speed
that the defendant was driving when the defendant was
properly signaled to stop at any time.
Sergeant Bergeson originally testified that when he
first began to display his emergency lights on Jefferson
Street, the defendant was ‘‘a little bit further up . . .
maybe three or four, maybe five car lengths in front
of’’ him. Sergeant Bergeson had testified that he was
directly behind the defendant while driving forty to
forty-five miles per hour, not an ‘‘exact speed,’’ on Jef-
ferson Street in a twenty-five miles per hour zone. In
later testimony, however, after being shown the video
of the event, which was recorded from Sergeant Berge-
son’s police cruiser dashboard camera, Sergeant Berge-
son admitted that he was not close to the defendant’s
van, and that, as the video showed, another vehicle
was in the left lane between the defendant’s van and
Sergeant Bergeson’s cruiser. This vehicle only pulled
over as Bergeson approached Wall Street. Further, the
videodisc shows Jefferson Street in the area of Wall
Street was a two lane, one-way street, and the defen-
dant’s van was in the left hand lane prior to turning
onto Wall Street. The videodisc shows that there was
no stop sign on Jefferson Street at the intersection of
Jefferson Street and Wall Street. Sergeant Bergeson
added that he was not following the New London police
pursuit policy for engaging in pursuit and that he did
not call out his own speeds during any pursuit. More-
over, the defendant’s left turn onto Wall Street from
Jefferson Street was visible to Sergeant Bergeson’s
video camera and to Sergeant Bergeson.5 Finally, Ser-
geant Bergeson also admitted that he was driving faster
than the defendant to catch up to him.
The videodisc shows the defendant turned left onto
Wall Street, and at its T intersection with Summer
Street, at the top of the Wall Street hill, applied his
brakes at the stop sign, put on his right turn signal
and took a right onto Summer Street, heading toward
Redden Avenue. The videodisc also shows that, as the
turn was completed at the top of Wall Street, Sergeant
Bergeson caught up to the rear of the defendant’s vehi-
cle to signal a stop.
As Sergeant Bergeson was following the defendant
onto Redden Avenue, at the next turn, he radioed other
officers, later recorded onto an audio disc, that he was
‘‘turning everything off.’’ He knew that the defendant
was going ‘‘right to his house’’ and he did not want to
cause any problems.6 The defendant arrived at his
nearby house on Colman Street approximately sixty-
six seconds after Sergeant Bergeson began following
him from a distance on Jefferson Street.
Furthermore, the evidence had to show that the
defendant was attempting to elude or escape the officer
by speeding. The evidence from the video and audio
discs does not reasonably support a finding that the
defendant’s conduct when signaled to stop was moti-
vated by his intent to elude or escape Sergeant Berge-
son. Sergeant Bergeson was forced to recognize this,
when he said he discontinued the use of ‘‘everything’’
on Redden Avenue and said that the defendant was
headed toward his home (on nearby Colman Street).
At this point, Sergeant Bergeson testified at trial, he
was disengaged from pursuit. The officers knew the
identity of the defendant, knew his home was his desti-
nation, and Nott knew the defendant’s daughter was
with him.7
Furthermore, there was no increased speed shown
on the videodisc while the van applied its brakes at
every stop sign from the top of Wall Street and signaled
the direction it was turning, all toward the defendant’s
home. At each intersection, Sergeant Bergeson testified,
his speed following the defendant was a few miles per
hour. Sergeant Bergeson followed the defendant’s van
as if in a slow procession toward the defendant’s home
once he had caught up to the van as it turned onto
Summer Street.
As to the majority’s reference to the defendant hear-
ing Nott’s call for assistance from the CVS lot, the audio
disc of the call from Nott to Sergeant Bergeson reflects
Sergeant Bergeson was asked to ‘‘hit a motor vehicle
stop on it and maybe give him a ticket for interfering
or . . . creating a disturbance,’’ to which Sergeant Ber-
geson stated, ‘‘Yeah. He’s taking off right now.’’ Thus,
the defendant had already left in his van as the call was
being made. Moreover, the statute explicitly requires
that the defendant be signaled to stop by a siren or
flashing lights. General Statutes § 14-223 (b).
The majority states that the cruiser videodisc reflects
that the defendant made a ‘‘sudden’’ or ‘‘abrupt’’ left
turn onto Wall Street from Jefferson Street, without
braking. Here, the video shows Jefferson Street was a
two lane, one-way street at its intersection with Wall
Street, a side street with no stop sign on Jefferson
Street.
In the presence of this contemporaneous contrary
video and audio evidence, I would reverse the defen-
dant’s conviction for engaging Sergeant Bergeson in
pursuit ‘‘at Wall Street’’ as unreasonable.
I agree with part II of the majority opinion that § 14-
223 (b) is not unconstitutionally vague because this
statute’s plain language may be read by ordinary people
to understand what conduct is prohibited. State v. Ste-
phens, 301 Conn. 791, 805–806, 22 A.3d 1262 (2011). I
do not agree, however, with the majority’s statement
that the trial court did not, by implication, find that the
officers were outside their duties when they pursued
and arrested the defendant. The court did find the offi-
cers had no constitutional justification to support an
arrest for interfering with Nott and dismissed count
one at the close of the state’s case. As such, the stop
could be found outside the officer’s duties as set forth
in my dissent from part III of the majority opinion.
FAILURE TO CHARGE ON DEFENDANT’S TWO
THEORIES OF DEFENSE
As to part III of the majority opinion, the defendant
filed a request to charge the jury as to freedom of speech
under the first amendment to the United States constitu-
tion and article first, § 5, of the Connecticut constitu-
tion.8 The court refused to give any part of that
instruction because it concluded that the request was
not relevant to the charges, including engaging in pur-
suit, to be considered by the jury. However, I do not
agree that the requested charge was not relevant to
the charges of engaging the officer in pursuit and of
obstructing Sergeant Bergeson in the performance of
his duty.
The standard to be used in considering the evidence
as to the relevance of the charge is that the court
reviews the evidence in the light most favorable to
supporting the proposed charge. See Levesque v. Bristol
Hospital, Inc., 286 Conn. 234, 247, 943 A.2d 430 (2008).
There was relevant evidence of Nott’s interaction
with the defendant at the CVS pharmacy parking lot in
New London on the afternoon of April 23, 2009, and of
Sergeant Bergeson’s later interaction with the defen-
dant that afternoon.
Nott testified at trial that she was assigned to investi-
gate a minor two car motor vehicle accident that
occurred on Jefferson Street in New London. Following
the accident, both motor vehicle operators had gone
into the nearby CVS parking lot and called the police,
who arrived in the person of Nott. Nott spoke to both
drivers, took their insurance information, and looked
at their licenses.
Nott testified the defendant and his six year old
daughter were also in the CVS parking lot. The defen-
dant produced evidence at trial that they were picking
up a pain medication prescription from CVS for the
daughter written that day by her doctor, and which was
to be taken every four hours as needed.
Nott also testified as follows: she was in her police
cruiser doing paperwork after speaking to the operators
involved in the accident, when the defendant came out
of the pharmacy and began to speak to Dustin Colburn,
one motorist involved in the accident. The defendant
asked Colburn if Nott was going to give him a ticket, to
which Colburn stated that he hoped not. The defendant
then stated to Colburn that Nott was ‘‘[on] the wrong
end of a lawsuit.’’ (Nott later testified that she was
the defendant in a civil rights lawsuit brought by the
defendant.) The defendant had also asked Colburn if
Nott was bothering him and stated that Nott was ‘‘a no
good cop or a bad cop . . . .’’ The defendant also asked
Colburn for his name and telephone number. At this,
Nott exited her police cruiser and instructed the defen-
dant to ‘‘get in his car and go away,’’ and Nott did not
speak to Colburn at this time.
Nott also testified that the defendant did not leave
then, but the defendant later went to his van and with
his daughter drove onto Jefferson Street.
A police audio disc reveals that Nott was talking
over the police radio with Sergeant Bergeson, the shift
supervisor, and asked for a motor vehicle stop.
Although she knew the defendant, Nott told Sergeant
Bergeson that ‘‘he’’ was following her, had taken her
picture, and was asking the people involved in the acci-
dent if she was going to give them a ticket and so
forth. Nott asked Sergeant Bergeson to stop ‘‘him’’ in
his motor vehicle and ‘‘maybe’’ give him a ticket for
interfering with an officer or creating a disturbance, to
which Sergeant Bergeson replied, ‘‘Yeah. He’s taking
off right now. What happened?’’9 Nott replied, ‘‘He’s
been following me, and, uh, taking my picture and then
asking the people that are involved in the accident, um,
if I’m giving them a ticket, so forth and so on.’’
Nott also testified at trial that she was ‘‘not so much’’
bothered by the defendant calling her no good and
a bad cop. Nott also testified she was not proud of
being sued.
After the defendant exited the CVS parking lot, Nott
testified, she decided to leave the parking lot and go
to the defendant’s home. At that time, Nott returned
the documents to the two drivers and told them they
were free to leave. Before then leaving, Nott radioed
police headquarters that she was clear from the acci-
dent and available for other work.
Sergeant Bergeson, a trained and experienced police
officer of sixteen years, testified at trial that he was
near the CVS parking lot when he received the radio
call from Nott. He then went over to Jefferson Street
in his cruiser while displaying his emergency lights and
siren. The police videodisc shows after going through
two red lights, Sergeant Bergeson began following the
defendant’s van at a ‘‘considerable’’ distance on Jeffer-
son Street, up to Wall Street, a steep side road.10 Nott
had not mentioned the defendant’s name to Sergeant
Bergeson in her radio transmission to him. However,
Sergeant Bergeson knew that the driver on Jefferson
Street was the defendant because he recognized the
defendant’s van, which bore his business’ name. Ser-
geant Bergeson testified he was also a defendant in
the same civil rights case involving Nott and knew the
defendant. Sergeant Bergeson also conceded at trial,
as did Nott, that it is not illegal to take a photograph
of a police officer on duty.
Sergeant Bergeson testified that after the defendant
pulled into his backyard carport, he parked behind the
defendant’s van across the driveway in front of the
defendant’s house with the siren still on. Sergeant Ber-
geson proceeded to the driver’s side of the defendant’s
van as the defendant was exiting. Sergeant Bergeson
had told the defendant that he was under arrest, and
had directed him to get out of his vehicle. Sergeant
Bergeson observed that the defendant’s daughter was
crying while she was in the front passenger seat. Upon
approaching the defendant on foot, Sergeant Bergeson
‘‘pulled a Taser on [the defendant] . . . .’’ He acknowl-
edged that the Taser ‘‘shoots’’ approximately 50,000
volts of electricity, is considered a dangerous weapon,11
and can ‘‘hurt’’ someone.12 Sergeant Bergeson agreed
that after he pulled out the Taser, he saw the defendant
reenter his vehicle, close the door, and call the police
station using his cell phone. At that time, Sergeant Ber-
geson, over the police radio as recorded on audio disc,
stated to other officers that he would ‘‘take him out
and Taser him if [he had] to.’’13
In his call to the police dispatcher, as recorded on
the audio disc, the defendant had reported that he had
been threatened by the police and asked to speak to
a captain or a lieutenant,14 which the requested jury
instruction would have described as speech protected
by the first amendment. After he reported the incident,
the defendant was instructed by the dispatcher to sub-
mit to the officers. As recorded by videodisc, the defen-
dant then exited his van as instructed by the dispatcher.
At the conclusion of the defendant’s telephone call, the
police dispatcher called Sergeant Bergeson and
informed him of the defendant’s call to the police dis-
patcher.
Other police officers also had arrived at the defen-
dant’s house, including Nott and Officer Josh Bergeson
(Officer Bergeson), a half-brother of Sergeant Bergeson.
Officer Bergeson testified at trial that he heard the little
girl ‘‘crying, kind of wailing, almost,’’ in the front passen-
ger seat of the van. As Sergeant Bergeson testified, after
the defendant left his van, Sergeant Bergeson returned
the Taser to its holster. The videodisc from Sergeant
Bergeson’s cruiser shows Officer Bergeson handcuffing
the defendant with his hands behind his back as Ser-
geant Bergeson watched nearby. The videodisc from
Sergeant Bergeson’s cruiser then showed Sergeant Ber-
geson putting the defendant down with a deprecating
gesture as he passed him in handcuffs. Sergeant Berge-
son did so by taking his upraised arm with his palm
put down and bringing it down toward his body as the
defendant passed by.
When the defendant was arrested, with his daughter’s
medication still in the van, his daughter was taken by a
neighbor whom the defendant had called. The neighbor
testified at the trial. Sergeant Bergeson testified he did
not recall discussing the daughter’s medication with the
defendant, although the videodisc shows a conversation
between the defendant and Sergeant Bergeson. When
he was released from the police station, the defendant
went to the hospital where he presented with two
sprained wrists and a contusion to his flank. The defen-
dant’s medical records in evidence reflect the defendant
(at age forty-six) also suffers from a cardiac disease,
including high cholesterol and hypertension.
The defendant’s jury trial had begun with the defen-
dant facing four counts: (1) interference with Nott at
the CVS parking lot, (2) risk of injury to his minor
daughter by engaging the police in pursuit with his
daughter in the vehicle, (3) engaging Sergeant Bergeson
in pursuit, and (4) interfering with Sergeant Bergeson’s
attempt to arrest him by locking his vehicle. At the
conclusion of the state’s case, the court granted the
defendant’s motion for a judgment of acquittal as to
the first count charging interference with Nott, finding
that because the defendant’s statements to Colburn at
the CVS did not rise to ‘‘fighting words,’’ and were
protected by the first amendment to the United States
constitution, and there was no evidence that the defen-
dant did anything to interfere with or delay Nott’s acci-
dent investigation. The jury, however, was only
instructed not to consider the charge involving Nott
and not to speculate as to the reason. Under those
instructions, the first amendment’s freedom of speech
guarantee, therefore, would have no bearing on the
jury’s consideration of the remaining charges, although
all the defendant’s statements about Nott remained in
the record and were not addressed in the jury instruc-
tions. If given, the charge would have at least removed
evidence of the defendant’s remarks to Colburn as sup-
porting the defendant’s guilt of the remaining charges
and contradicted part of the prosecutor’s rebuttal argu-
ment as set forth below. As to prejudice, the prosecutor
could and did improperly refer to the constitutional
principles of freedom of speech as ‘‘some talk’’ and
stated improperly the defendant should have awaited
Nott’s leaving to insult her record.
During deliberations, the jury sent the court a note
asking for the court to reread the definition and instruc-
tion regarding a ‘‘personal frolic.’’ The court then
repeated the instruction to the jury that the officer ‘‘in
the performance of his duties’’ must be ‘‘simply acting
within the scope of what he is employed to do. The
test is whether the police officer is acting within that
scope or is engaged in a personal frolic of his own.’’ As
phrased, this instruction could lead the jury to believe if
an officer acts as an officer, he is not engaged in a
personal frolic. The requested instruction would indi-
cate to the contrary that action taken in derogation of
the defendant’s freedom of speech rights was illegal
and not in keeping with the officer’s duty to act lawfully.
I would conclude that Sergeant Bergeson’s conduct
toward the defendant, threatening deadly force with a
Taser when he knew that the defendant had brought
his daughter home, evidence that Sergeant Bergeson
knew that the defendant’s photographing Nott was not
illegal, the fact that the offending words used by the
defendant were not ‘‘fighting words,’’ and were pro-
tected by the first amendment and referred to the defen-
dant’s lawsuit against Nott and Sergeant Bergeson,
combined with Sergeant Bergeson’s deprecating ges-
ture putting down the defendant as he was being led
away, could support a finding that Bergeson was moti-
vated by personal feelings arising from the defendant’s
past interactions with him and Nott, including an
existing civil rights lawsuit by the defendant against
them both. The jury had to consider the issue of a
personal animus, but it did not have before it the consti-
tutional infirmity of Nott’s request to Sergeant Bergeson
to stop and issue a summons to the defendant for taking
her picture and, as Nott testified, the defendant calling
her ‘‘a no good or a bad cop,’’ which are not fighting
words.
Fighting words consist of speech that ‘‘by [its] very
utterance inflict injury or tend to incite an immediate
breach of peace.’’ Chaplinsky v. New Hampshire, 315
U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); see
also State v. Szymkiewicz, 237 Conn. 613, 620 n.12, 68
A.2d 473 (1996); State v. Williams, 205 Conn. 456, 473,
534 A.2d 230 (1987). Moreover, ‘‘a properly trained offi-
cer may reasonably be expected to exercise a higher
degree of restraint than the average citizen, and thus
be less likely to respond belligerently to fighting words.’’
(Internal quotation marks omitted.) State v. Williams,
supra, 474 n.7, quoting Houston v. Hill, 482 U.S. 451,
462, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987). ‘‘[F]ighting
words are intended as provocation, which a police offi-
cer should be expected to resist, while a true threat is
‘a serious expression of intent to harm’ . . . the nature
of which does not depend on the particular sensitivities
of the listener.’’ (Citation omitted.) State v. DeLoreto,
265 Conn. 145, 162, 827 A.2d 671 (2003).15
‘‘[I]n cases raising First Amendment issues [the
United States Supreme Court has] repeatedly held that
an appellate court has an obligation to make an indepen-
dent examination of the whole record in order to make
sure that the judgment does not constitute a forbidden
intrusion on the field of free expression.’’ (Internal quo-
tation marks omitted.) DiMartino v. Richens, 263 Conn.
639, 662, 822 A.2d 205 (2003).
The trial record reveals that but for the call from
Nott, Bergeson would not have attempted to stop the
defendant’s vehicle and, ‘‘[pull] a Taser on [the defen-
dant],’’ which caused the defendant to reenter his vehi-
cle and close the door while he called the police
dispatcher and asked to speak to a police captain, a
supervisor, and to report that officers were threaten-
ing him.
The trial court dismissed the charge alleging interfer-
ence with Nott at the CVS parking lot because the defen-
dant did not use ‘‘fighting words’’ in the presence of
Nott. The defendant’s insults had led Nott to call Ser-
geant Bergeson for assistance, which led to subsequent
events in a causal relationship, when Sergeant Bergeson
followed the defendant home. Everything that later
occurred was prompted by the defendant’s exercise of
his constitutionally protected speech. As the prosecutor
said in his summation, the defendant at the CVS parking
lot created the whole situation himself.
Our Supreme Court in 1987 and the United States
Supreme Court since 1942 have repeatedly stated that
fighting words may be excluded from the protections
of the first amendment, but we do not have them in
this case. See Chaplinsky v. New Hampshire, supra,315 U.S. 568; State v. Williams, supra, 205 Conn. 475.
I believe that the charge requested should have been
given as relevant to the defendant’s claim to the jury
that the defendant’s words led to Sergeant Bergeson’s
actions. I would conclude that the jury should have been
instructed, as the defendant sought, that the defendant’s
words were constitutionally protected speech and were
not a valid basis for any offense. The jury should have
been informed that Nott had no valid basis to request
Sergeant Bergeson stop and issue a summons to the
defendant for his words spoken to Colburn. Further-
more, Nott’s orders to the defendant to step away or
to leave were, in effect, an effort to muzzle him—the
very antitheses of the right to freedom of speech. The
defendant’s words also could not provide a basis for
Sergeant Bergeson to stop the defendant and, after find-
ing the defendant outside his vehicle, ‘‘pull a Taser
on [the defendant]’’ and violate the defendant’s first
amendment rights.
As to Sergeant Bergeson acting within the scope of
his duties and the good faith belief of Sergeant Bergeson
when ‘‘pull[ing] a Taser on [the defendant],’’ consider-
ation of the first amendment was vital to a fair consider-
ation of the interference charge as related to Sergeant
Bergeson. See State v. Casanova, 255 Conn. 581, 590–94,
767 A.2d 1189 (2001). The instruction was necessary so
that the jury would be bound to consider that Sergeant
Bergeson’s actions prejudiced the defendant’s right to
exercise his first amendment right to free speech to
criticize Nott. That criticism, as nonfighting words, was
the cause of Sergeant Bergeson’s actions and the defen-
dant’s reactions that afternoon.
The instruction was also relevant to Sergeant Berge-
son’s conduct in pointing his Taser at the defendant
while the defendant was leaving his van, causing the
defendant to return to the van and call the police dis-
patcher, seeking to speak to a ranking officer about an
officer threatening him with his daughter in the van.
This call was the defendant’s exercise of free speech
to memorialize and report police conduct and seek aid
in safeguarding his and his daughter’s well-being. As
such, the defendant’s exercise of his rights, by retreating
to his van to telephone the police dispatcher to alert
senior officers to what was happening, could not sup-
port the charge of interfering with Sergeant Bergeson.
Under the instructions, it could not support a criminal
prosecution constituting a deprivation of his constitu-
tional right to free speech. See Glik v. Cunniffe, 655
F.3d 78 (1st Cir. 2011); Smith v. Cumming, 212 F.3d
1332 (11th Cir.), cert. denied, 531 U.S. 978, 121 S. Ct.
426, 148 L. Ed. 2d 435 (2000); Williamson v. Mills, 65
F.3d 155 (11th Cir. 1995).
The citizen’s right to freedom of speech was added
to the United States constitution early on (1791); McIn-
trye v. Ohio Elections Commission, 514 U.S. 334, 370,
115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) (Thomas, J.,
concurring in the judgment); and was exemplified at a
Vermont town meeting in Norman Rockwell’s painting
of the Four Freedoms. In Glik v. Cunniffe, supra, 655
F.3d 82, the United States Court of Appeals for the First
Circuit described that freedom as a necessary bulwark
against state efforts to suppress criticism of public
officers.
Arrests that interfere with the dissemination of such
information, whether by the press or by a private indi-
vidual, is a violation of the first amendment. See United
States v. Grace, 461 U.S. 171, 184, 103 S. Ct. 1702, 75
L. Ed. 2d 73 (1983) (Marshall, J., concurring and dis-
senting). A private individual reporting facts that memo-
rialize deadly police activity on his property and
directed at his body and his child while seeking police
protection from harm I would hold is protected by the
first amendment in this case.
The defendant also filed a request to charge on the
defense of entrapment. When presenting this request,
defense counsel stated that the record could also sup-
port a defense of justification (self-defense) arising
from the Taser’s deadly threat. The court refused to
give that instruction as well.
The entrapment instruction would require proof that
the police induced the defendant to commit an offense
of interfering with Sergeant Bergeson’s effort to arrest
the defendant by his locking the vehicle as charged in
the information.
The undisputed facts establish that the defendant
was following Sergeant Bergeson’s direction to leave
his vehicle only to be met with the threat of the Taser
under the control of an adversary in a civil rights case,
in this case, a deadly threat. See footnote 12 of this
opinion. The majority concludes Sergeant Bergeson’s
‘‘pointing’’ his Taser at the defendant could not induce
the defendant to reenter his vehicle and lock the door
to call the police dispatcher. I would conclude there
was evidence from which the jury could conclude
inducement was proven. The evidence was not con-
tested that the ‘‘pointing’’ (as described in the majority
opinion) of the Taser resulted in the defendant’s call
to the police dispatcher from the defendant’s van. I
would respectfully disagree because this threat would
constitute the most serious inducement known.
As to the purpose of inducing the defendant’s action
to institute a criminal prosecution against the defen-
dant16 and that the defendant did not contemplate and
would not have participated in such conduct, I would
point to the circumstantial evidence that Sergeant Ber-
geson would be seeking such a charge of interference
because of the defendant’s lawsuit against him, the lack
of a constitutional reason to stop and arrest him
because of the first amendment, the fact that the defen-
dant was complying with Sergeant Bergeson’s orders
to leave the vehicle, only to be confronted with the
drawn Taser, and the other factors enumerated above as
to the failure to give the freedom of speech instruction.
PROSECUTORIAL MISCONDUCT AND PREJUDICE
Finally, I dissent as to part IV of the majority opinion,
where the prosecutor began his rebuttal jury summation
with the statement: ‘‘Let me tell you why I think this
case warrants conviction,’’ and later ended his summa-
tion with the statement: ‘‘If I’m going to convict some-
one, I better well have a good case. And I think we
do,’’ which was stricken when the court sustained the
defendant’s objection and then the prosecutor stated,
‘‘Okay.’’
Between these improper opening and closing state-
ments of personal belief in the state’s case, which the
prosecutor knew to be improper, the prosecutor
improperly asked the jurors to put themselves in the
policeman’s shoes. The prosecutor also asked the jury
to view the facts with the lens of the prosecutor’s own
reaction when stopped by the police.17 The prosecutor
withdrew this remark when the defendant objected.
The prosecutor also gave his own observations of
Officer Bergeson’s having denied during his testimony
that he punched the defendant in the back. The prosecu-
tor stated to the jury that ‘‘[h]e seemed surprised’’ to
be asked, and the prosecutor added, ‘‘I don’t know.
You make the judgment,’’ a remark he repeated when
addressing the defendant’s claim that the officers
caused the defendant’s back contusion. The prosecutor
also addressed the issue of the Taser by stating: ‘‘I mean,
I don’t really like Tasers myself.’’ Referring to a missing
video of the police station booking room where the
defendant had complained of his injuries, he stated: ‘‘I
don’t know, but what does it have to do with what the
defendant did before?’’ These latter remarks, at the
least, made the prosecutor a witness to his knowledge
or lack thereof of signs of ill will against the defendant.
Since the remarks were beyond the evidence in the
record, they were unsworn testimony, which is not the
subject of proper closing argument. ‘‘Moreover, when
a prosecutor suggests a fact not in evidence, there is
a risk that the jury may conclude that [the prosecutor]
has independent knowledge of facts that could not be
presented to the jury.’’ (Internal quotation marks omit-
ted.) State v. Skakel, 276 Conn. 633, 746, 888 A.2d 985,
cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed.
2d 428 (2006).
The majority, in considering the effect of the summa-
tion under State v. Williams, 204 Conn. 523, 529 A.2d
653 (1987), refers to the state’s case as ‘‘strong’’ or not
‘‘weak.’’ I disagree as to the engaging the officer in
pursuit charge that required the jury to find the defen-
dant sought by speeding to elude or escape from the
police while driving at Wall Street in route directly to
his house. It was also contrary to the video camera in
Sergeant’s Bergeson’s cruiser, which showed the defen-
dant’s vehicle going directly to the defendant’s home
at a slow speed, after braking at stop signs and using
his turn signal to indicate his future direction at each
turn, while being closely followed by Sergeant
Bergeson.
As to the interference with Sergeant Bergeson, the
evidence is that the defendant only reentered his vehicle
and closed the door to call the police headquarters
to report events to senior officers and ask for police
assistance when being confronted by an officer he was
suing, who was pulling a Taser, a dangerous weapon,
‘‘on him’’ after he had left his vehicle as directed by
that officer—all of which was not contested.
Accordingly, I respectfully dissent and would order
a new trial as to the interference count.
1
The second amended substitute information, filed during the trial,
charged in count two that the defendant ‘‘at Wall Street, did increase the
speed of the motor vehicle he was driving in an attempt to escape or elude
[Sergeant] Bergeson of the New London Police Department when said police
officer activated his emergency lights and sirens indicating to the accused
to stop, but instead, the accused increased his speed in violation of . . .
General Statutes [§] 14-223 (b).’’
2
The majority notes there is no claim the video recordings have been
altered in any way. I note as well there is no claim the audio discs have
been altered in any way.
3
See footnote 5 of this opinion.
4
The amended substitute information restricted the evidence to the defen-
dant’s speed at Wall Street. See footnote 1 of this opinion.
5
Due to the considerable distance between Sergeant Bergeson’s cruiser
and the defendant’s vehicle, the cruiser’s video camera did not clearly show
the use of a turn signal except to show yellow and red lights on the rear
left side of the defendant’s vehicle.
6
The conversation was as follows:
‘‘[Sergeant Bergeson]: I’m trying to stop one Charlie Mike 630 [the defen-
dant’s license plate], going up Redden. He’s not stopping.
‘‘[Another Officer]: [Inaudible] units to . . . .
‘‘[Sergeant Bergeson]: [Inaudible] He’s heading right to his house. I’m
gonna turn everything off so it doesn’t cause a problem, and then I’m gonna
take him into custody.’’
7
Sergeant Bergeson testified Nott called him on Redden Avenue to tell
Sergeant Bergeson that the defendant’s daughter was in the defendant’s
van. However, the recordings demonstrate that Officer Nott’s call was made
to Sergeant Bergeson later while Sergeant Bergeson was in the backyard
of the defendant’s home on Colman Street.
The conversation between Sergeant Bergeson and Nott was as follows:
‘‘[Sergeant Bergeson]: Shut my siren off, please, somebody, before you
come in the backyard. That’s where I’m at.
‘‘[Nott]: 3 to Lima, just so you know, his child is in the front passenger
seat, 3 is in route.’’
An examination of the time stamps on the audio discs reveals that Sergeant
Bergeson received Nott’s transmission that a child was in the defendant’s
van only after the defendant was in his backyard carport.
8
The defendant requested the following: ‘‘The first amendment to the
[United States] constitution states in part that state ‘shall make no law . . .
abridging the freedom of speech.’ An expanded right to speech and expres-
sion exists under [article first, § 5, of] the Connecticut [c]onstitution, which
states that ‘No law shall ever be passed to curtail or restrain the liberty of
speech or of the press.’ The loss of first amendment freedoms, for even
minimal periods of time, unquestionably constitutes a violation of basic
rights. These provisions apply equally to the actions of state and local
officials, including police officers and school officials. Moreover, the consti-
tutional right to free speech extends to nearly all words directed toward a
police officer, even where those words are angry, annoying or offensive, as
long as they don’t constitute a true threat to commit violence. Asking some-
one, ‘Is this officer giving you a ticket’ offering opinions about the integrity
of the officer, or inquiring whether the officer made a threat, are not crimes.
They are protected forms of expression. Asking for a supervisor, such as
a captain, is also a protected form of expression. Insolence and rudeness
are not crimes, and enforcing better standards of social conduct is not the
business of police officers, or the courts. Due to their training and experience
police officers are expected to be more thick-skinned than ordinary citizens,
and therefore, the first amendment protects a significant amount of verbal
criticism directed at police officers, that might be inappropriate in other
contexts.
‘‘In addition to actual words, the first amendment also protects an individu-
al’s right to document police conduct by videotaping or taking pictures of
their activities, subject to reasonable time, manner and place restrictions.
You have heard evidence that [Daniel G. See * footnote of the majority
opinion.] took a picture of Officer Nott, which was the subject of Officer
Nott’s complaint. [Daniel G.’s. See * footnote of the majority opinion.] actions
in taking this photograph were also protected by the first amendment.’’
(Emphasis added.)
9
The audio communication between Nott and Sergeant Bergeson was
as follows:
‘‘[Sergeant Bergeson]: Go ahead [inaudible]
‘‘[Nott]: Three to Lima. Three to Lima.
‘‘[Sergeant Bergeson]: Go ahead.
‘‘[Nott]: Come over to CVS for me, please.
‘‘[Sergeant Bergeson]: Okay. Do you need me? I’m just walking into Neal’s.
I’ll head over there.
‘‘[Another Officer]: Three—Is it something Sierra can take care of or . . ?
‘‘[Sergeant Bergeson]: Yup, I know what it is. I’ll be right over.
‘‘[Nott]: If you can, hit a motor vehicle stop on it and maybe give him a
ticket for interfering or creating a disturbance.
‘‘[Sergeant Bergeson]: Yeah. He’s taking off right now. What happened?
‘‘[Nott]: He’s been following me, and, uh, taking my picture and then
asking the people that are involved in the accident, um, if I’m giving them
a ticket, so forth and so on.’’
10
In its brief, the state admits that on Jefferson Street the defendant was
‘‘considerably ahead’’ of Sergeant Bergeson.
11
A Taser is a type of controlled electronic weapon capable of firing wires
tipped with a pair of barbed darts to deliver a paralyzing electric charge.
Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010). A police Taser,
which is capable of causing death or serious injury, may meet the definition
of a dangerous instrument under General Statutes § 53-206 and § 53a-3 (7).
12
Some recent medical studies have concluded that the electrical shock
delivered by a Taser could cause death by cardiac arrest. See, e.g., D. Zipes,
MD, ‘‘Sudden Cardiac Arrest and Death Following Application of Shocks
From a TASER Electronic Control Device,’’ Circulation Journal of the Ameri-
can Heart Association (2012).
Recent Connecticut deaths following Taser use have prompted citizen
groups to call for legislation to regulate the use of Tasers. See G. Merritt,
The CT Mirror, ‘‘Taser death spurs calls for more regulation,’’ (September
4, 2013), available at http://www.ctmirror.org/story/2013/09/04/taser-death-
spurs-calls-more-regulation (copy contained in the file of this case in the
Appellate Court clerk’s office) (noting thirteen Connecticut deaths following
Taser use since 2005).
13
The radio transmission is transcribed as follows:
‘‘[Another Officer 1]: 2 to something to report 132.
‘‘[Sergeant Bergeson]: Q, uh, he . . locked himself in the car, I guess.
‘‘[Another Officer 1]: Alrighty. What’s your location?
‘‘[Sergeant Bergeson]: 95 [Colman]. I’ll take him out and Taser him if I
have to.
‘‘[Another Officer 1]: We weren’t able to copy that location. Did anybody
get it?
‘‘[Another Officer 2]: 4 [inaudible].
‘‘[Another Officer 2]: 4 is almost out [inaudible].
‘‘[Sergeant Bergeson]: Sierra is out.
‘‘[Another Officer 1]: Roger.’’
14
The defendant’s telephone call to the police dispatcher is transcribed
as follows:
‘‘[The Defendant]: . . . . Just threatened my life.
‘‘[Police Dispatcher]: Communications.
‘‘[The Defendant]: Yes, may I speak to the captain or whoever’s on duty?
‘‘[Police Dispatcher]: I beg your pardon?
‘‘[The Defendant]: I need to speak to the captain or lieutenant on duty
please. . .
‘‘[Police Dispatcher]: What’s your name?
‘‘[The Defendant]: My name is [Daniel G. See * footnote of the majority
opinion.] I’m being threatened by officers right now and my daughter. They
are threatening us both.
‘‘[Police Dispatcher]: [OK, sir]. I’m going to ask you to comply with the
officers. Okay. And do what they tell you to do.
‘‘[The Defendant]: I wanna speak to the captain, okay?
‘‘[Police Dispatcher]: Sir, sir. There is a lieutenant on scene there.
‘‘[The Defendant]: There is? Which lieutenant?
‘‘[Police Dispatcher]: [Lieutenant] Bergeson is there. Well he’s acting [Lieu-
tenant] Bergeson . . . .’’
15
A true threat is another unprotected form of speech. See State v. Moulton,
310 Conn. 337, 349, 78 A.3d 55 (2013).
16
Inducing the defendant’s action for the purpose of instituting a criminal
prosecution against him would not have been required for a justification
defense.
17
The prosecutor described such a stop as one to be seen in the ‘‘rearview
mirror’’ where the police flashing lights were directly behind the operator.