Vt. high court cancels telephone-harassment conviction

Wednesday, February 1, 2012

A recent Vermont Supreme Court decision invalidating a conviction for telephone harassment shows that sometimes the best arguments for defendants are based on the language of a statute, rather than on broader-based constitutional challenges.

Jennifer A. Wyrocki faced charges of violating a Vermont law that prohibits the making of repeated harassing or threatening  anonymous telephone calls. She called Roxanne Emilo, the mother of Wyrocki’s boyfriend, twice in August 2009.

Emilo, who did not approve of her son’s relationship with Wyrocki, had called the Vermont Housing Authority to report that her son was living with Wyrocki in violation of Wyrocki’s housing agreement. Her call apparently led to her son’s being removed from the apartment and taken to jail. Court papers didn’t give the son’s age or explain reasons for the jailing.

An upset Wyrocki called Emilo but did not identify herself. After Emilo answered, Wyrocki uttered unpleasant remarks including:  “I hope you’re happy,” “You fucking bitch,” “He’s going to die in jail,” and “I hope you die.”  Emilo hung up, only to receive another call in which Wyrocki said: “I hope you run your car into a tree and fucking die.” Although Wyrocki did not identify herself in either call, Emilo testified that she recognized the voice as Wyrocki’s.

At her bench trial (a trial before a judge, not a jury), Wyrocki argued that her speech was protected by the First Amendment, that she did not make “repeated” calls and that she did not make “anonymous” calls.

The judge rejected these arguments. Dismissing the constitutional argument, Judge Cortland Corsones found that the harassment statute prohibited conduct rather than speech. Corsones then determined that two calls were enough to meet the law’s definition of “repeated.” He also decided that the calls were anonymous because Wyrocki did not identify herself on the phone.

On appeal, Wyrocki pursued her argument based on the statutory language that her calls were not anonymous. She also contended that the law was unconstitutionally overbroad and vague in violation of the First Amendment. And she argued that her call was not anonymous if Emilo immediately recognized who she was.

The Vermont Supreme Court reversed Wyrocki’s conviction in its Jan. 26 opinion in State v. Wyrocki. The state high court focused on the question of whether the calls were anonymous.

“Under any definition, a call cannot be anonymous when its author is known to the listener,” the court wrote. “It is therefore a necessary condition of [the law] that the person taking the call does not know the sender.”

Because Emilo had testified that she knew the caller was Wyrocki, the state Supreme Court said, the criminal statute prohibiting repeated, anonymous harassing calls could not be applied to Wyrocki.

In deciding the case on the basis of statutory language, the court did not reach Wyrocki’s First Amendment arguments on appeal.

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