State v. Lance

• Decision Date: 10 July 1986
• Docket Number: No. 85-372,85-372
• Citation: 721 P.2d 1258,222 Mont. 92,43 St.Rep. 1086
• Parties: STATE of Montana, Plaintiff and Respondent, v. John F. LANCE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1258

721 P.2d 1258

222 Mont. 92

STATE of Montana, Plaintiff and Respondent, v. John F. LANCE, Defendant and Appellant.

No. 85-372.

Supreme Court of Montana.

Submitted on Briefs Jan. 17, 1986.

Decided June 17, 1986.

Rehearing Denied July 10, 1986.

John F. Lance, pro se.

Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.

TURNAGE, Chief Justice.

After a jury trial in the District Court of the Fourth Judicial District, appellant, John Fesler Lance, was convicted of violating § 45-5-203(1)(b), MCA (1983) ¹ which provides:

A person commits the offense of intimidation when, with the purpose to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts:

* * *

(b) subject any person to physical confinement or restraint.

On appeal, Lance contends that this statute is an unconstitutional violation of the First Amendment, and he claims that several other errors occurred in the lower court which require reversal of his conviction. Since we uphold the constitutionality of the Montana intimidation statute and find no merit in the other issues raised, the judgment of conviction is affirmed.

The events leading up to Lance's arrest and conviction began over seven years ago when he was served with a petition for divorce. Lance chose to represent himself in those proceedings, as he does in this case. When the decree of dissolution was granted, Lance lost custody of his children and a substantial amount of marital property. Sometime later, he lost possession of his very valuable ranch in Florence, Montana. From that point to the present, Lance has carried on a one-man crusade to recover his ranch, custody of his children and alleged substantial damages he has sustained in the process. Numerous lawsuits have been filed by Lance in the state and federal courts in an effort to obtain these things; however, he has been met with constant defeat and dismissal of many of his actions. This lack of success has convinced Lance that there is a colossal conspiracy against him by most of the judiciary and attorneys in Montana. It is Lance's quest for final justice and his obvious frustration over his losses which has ultimately led to the conviction at issue in this case.

Five separate letters written and mailed by Lance form the basis for his arrest and conviction. These letters were dated July 17, 1984, August 15, 1984, September 3, September 8, and September 13, 1984, and were sent to Nate Denman, ² Judge Michael Keedy, ³ Tom Wing, ⁴ and Judge Jack Green, ⁵ respectively. Basically, Lance stated in the letters that if his remaining lawsuits are dismissed, he will take a hostage for the purpose of focusing nationwide media attention on his plight and for the purpose of negotiating to obtain the return of his ranch and his children, and for the damages he has sustained. Nate Denman was particularly alarmed by the letters he received, and he sent relevant excerpts of them to the Director of the Montana State Hospital at Warm Springs who, in turn, sent the excerpts to the County Attorney in Hamilton, Montana. Subsequently, on September 19, 1984, the Missoula County Attorney filed an Information charging Lance with the offense of intimidation.

Lance was arrested on September 20, and bail was initially set at $500,000. However, one week later bail was reduced by the District Court to $50,000, and on November 8 Lance was released on his own recognizance. During this time, Lance brought an application for writ of habeas corpus alleging that § 45-5-203, MCA, was unconstitutional on its face and as applied. On November 1, 1984, the District Court issued an opinion upholding the constitutionality of that statute and denying the application for the writ. On December 6, the court accepted the State's motion to file an amended information. Trial was set for January 28, 1985 and on January 30 the jury found Lance guilty of intimidation. Lance conducted his own defense at trial and continues his pro se status on appeal.

Appellant has raised numerous issues, both formally and informally, in his lengthy brief. The precise issues raised were difficult to discern in view of the fact that they were intertwined with rambling attacks on the judiciary and attorneys of Montana, in addition to allegations of a massive conspiracy designed to prevent him from recovering what he lost in the divorce seven years ago. Nevertheless, we believe that there are six issues which are legitimately raised:

(1) Does § 45-5-203(1)(b), MCA (1983), violate the First Amendment because it is overbroad or because it is unconstitutional as applied?

(2) Was reversible error created by the fact that bail was originally set at $500,000 but was reduced to $50,000 one week later, in light of the fact that appellant was released on his own recognizance six weeks later?

(3) Was appellant denied his constitutional right of access to the courts during his six week pre-trial confinement by being denied access to a substantial legal library and by the failure of his court appointed counsel to comply with every request he made?

(4) Was reversible error created when the prosecutor obtained juror affidavits before a mistrial hearing was held which was based on alleged witness misconduct occurring at the trial without first acquiring the court's permission to do so?

(5) Did the trial court abuse its discretion by accepting the second amended information?

(6) Did the trial court abuse its discretion by failing to allow appellant a continuance so he could file proposed jury instructions, which resulted in proposed jury instructions being filed only by the prosecution?

Another issue raised by appellant involves his allegations of conspiracy and corruption within the legal community in Montana. Since this issue is totally irrelevant to his appeal and consists largely of groundless speculation, we do not consider it in our decision.

I

Since appellant's first issue requires us to construe Montana's intimidation statute with the commands of the First Amendment in mind, and because there may be some doubt as to its constitutionality after the federal court decision in Wurtz v. Risley (9th Cir.1983), 719 F.2d 1438, we will discuss this issue in some detail.

A

Appellant first contends that § 45-5-203 is unconstitutional on its face because it is overbroad. This statute is particularly susceptible to an overbreadth attack because it makes criminal a form of pure speech. Subsection (b) imposes criminal liability when a person "communicates to another a threat" to subject any person to physical confinement or restraint without lawful authority and with the purpose of causing another to perform or omit the performance of any act. Thus, the heart of the offense is communication. No overt act or conduct of any kind is required. Although the statute requires the communication of a threat to take some specific act coupled with a criminal state of mind, the offense is complete upon the communication of the threat. Only words are punished by the statute. Therefore, it can withstand appellant's attack upon its constitutionality only if it does not apply to speech that is protected by the First Amendment. Gooding v. Wilson (1972), 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408.

The doctrine of overbreadth in the area of First Amendment freedom of speech is an exception to the normal rules of standing. This doctrine allows appellant to raise an objection to § 45-5-203 on First Amendment grounds even though the statute would have been constitutional as applied to his particular case. "It matters not that the words [appellant] used might have been constitutionally prohibited under a narrowly and precisely drawn statute." Gooding, 405 U.S. at 520, 92 S.Ct. at 1105. "[A]n individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court--those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Brockett v. Spokane Arcades, Inc. (1985), --- U.S. ----, ---- - ----, 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394, 405-406. Thus, the statute may be unconstitutional on its face even though it would be constitutional as applied to appellant.

Section 45-5-203(1)(c) ⁶ has been declared unconstitutional by the Ninth Circuit in Wurtz on grounds of overbreadth. Appellant contends that Wurtz controls the decision in this case. We disagree with this view for two reasons.

First, only subsection (c) was at issue in Wurtz, and the court considered the overbreadth challenge solely with regard to that subsection. The court did not declare the entire intimidation statute to be unconstitutional; rather, it held only § 45-5-203(1)(c) to be unconstitutional. It is an elementary principle of constitutional law that "the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected." Brockett, 105 S.Ct. at 2801, quoting from Allen v. La. (1881), 103 U.S. 80, 83-84, 13 Otto 80, 26 L.Ed. 318.

We view the separate subsections of the statute as completely independent of each other. It was the legislature's purpose to impose criminal sanctions on individuals who threaten to commit certain specific acts. Simply because threats to "commit any criminal offense" were held to be unconstitutional does not mean that the legislature would not want to continue punishing threats to "subject any person to physical confinement or restraint." One prohibition in the statute does not hinge on another. Therefore, the decision in Wurtz declaring sub...