Opinion
(14111)
Convicted of two counts of the crime of failure to assist a peace officer, the defendant appealed to the Appellate Court claiming, inter alia, that the statute ( 53a-167b) under which he was convicted, is unconstitutionally vague and overbroad. The Appellate Court affirmed the decision of the trial court, and the defendant, on the granting of certification, appealed to this court. It having been recently decided by this court that 53a-167b is not facially unconstitutional because it authorizes an officer to command assistance in the execution of his duties only when the circumstances render the command both necessary and reasonable, certification was improvidently granted and the defendant's appeal was dismissed. Moreover, because the defendant failed to raise the issue of the constitutionality of that statute at trial, the record was inadequate for a fair consideration of whether it was unconstitutional as applied to the circumstances surrounding the defendant's refusal to comply with the requests of the police officers.
Argued February 15, 1991
Decision released May 7, 1991
Amended information charging the defendant with the crime of hindering prosecution and with two counts each of the crimes of interfering with an officer and failure to assist a peace officer, brought to the Superior Court in the judicial district of New London, geographical area number ten, and tried to the jury before Vasington, J.; verdict and judgment of guilty of two counts of the crime of failure to assist a peace officer, from which the defendant appealed to the Appellate Court, Daly, Cretella and Landau, Js., which affirmed the trial court's decision, and the defendant, on the granting of certification, appealed to this court. Dismissed.
Denise Bevza, for the appellant (defendant).
Jack W. Fischer, deputy assistant state's attorney, with whom, on the brief, were C. Robert Satti, Sr., state's attorney, and Peter McShane, deputy assistant state's attorney, for the appellee (state).
The defendant was convicted of two counts of failure to assist a peace officer in violation of General Statutes 53a-167b after a jury trial. He appealed from this judgment to the Appellate Court, claiming that: (1) the trial court had improperly permitted the state to amend the information by adding on the morning of trial the two counts on which he was found guilty; (2) 53a-167b is unconstitutionally vague and overbroad; and (3) the jury should have been instructed to acquit the defendant if the officer's request for assistance was unlawful. The Appellate Court affirmed the judgment; State v. Santiago, 22 Conn. App. 683, 578 A.2d 668 (1990); and the defendant petitioned for certification to appeal to this court. We granted the petition for certification limited to the following questions: (1) "May the defendant belatedly raise the constitutionality of General Statutes 53a-167b?" and (2) "Is the statute constitutional?" State v. Santiago, 216 Conn. 820, 581 A.2d 1057 (1990).
At the time we granted certification, we had not decided State v. Floyd, 217 Conn. 73, 584 A.2d 1157 (1991), in which the issue of the constitutionality of 53a-167b had been raised in the trial court by a motion to dismiss. That court resolved the issue by determining that the statute was invalid as applied to a "statement of the essential facts" as alleged by the state pursuant to Practice Book 625. In our opinion in Floyd, we regarded the ruling of the trial court as "tantamount to a facial invalidation of the statute." Id., 75. We construed 53a-167b to authorize an official "to command assistance in the execution of his duties only when circumstances render the command both necessary and reasonable." Id., 94. Ultimately we concluded that "the statute is not facially unconstitutional under the fourth or fourteenth amendments" and reversed the judgment of dismissal. Id., 95.
In the present appeal, the failure of the defendant to raise the constitutionality of 53a-167b at trial leaves the record inadequate for a fair consideration of whether the statute was unconstitutionally applied to the circumstances under which he refused four requests to open the door of his apartment that were made by police officers over a period of several minutes. See State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989). The principal focus of the defendant on appeal to this court is upon his claim that 53a-167b is facially invalid for vagueness. We resolved that claim adversely to him in Floyd by rejecting the identical claim in that case.
Accordingly, we conclude that certification to appeal in this case was improvidently granted and that the appeal should be dismissed.