76 Hawai'i 85, Doe, In Interest of

• Decision Date: 05 January 1976
• Citation: 869 P.2d 1304
• Parties: 76 Hawai'i 85 In the Interest of John DOE, Born on
• Court: Hawaii Supreme Court

Page 1304

869 P.2d 1304

76 Hawai'i 85

In the Interest of John DOE, Born on January 5, 1976, Juvenile.

No. 15986.

Supreme Court of Hawai'i.

Feb. 28, 1994.

Syllabus by the Court

1. Harassment, in violation of HRS § 711-1106 (1985 & Supp.1992), is a form of disorderly conduct aimed at a single person, rather than at the public. Because police officers are not considered members of the public, a person may not be arrested for disorderly conduct, in violation of HRS § 711-1101 (1985), as a result of activity that annoys only the police. Police officers are trained and employed to bear the burden of hazardous situations, and it is not infrequent that private citizens have arguments with them. An individual police officer may, however, be the object of harassment, under HRS § 711-1106(1)(b), because the statute is aimed at preserving peace. It prohibits insults, taunts, or challenges that are likely to provoke a violent or disorderly response. This is distinguishable from disorderly conduct because it does not present a risk of public inconvenience or alarm.

2. There are three material elements of the offense of harassment, as prohibited by HRS § 711-1106(1)(b), each of which the prosecution must prove beyond a reasonable doubt. These three elements are: (1) that the defendant insulted, taunted, or challenged another person (i.e., the prohibited conduct); (2) that the defendant did so in a manner likely to provoke an immediate violent response (i.e., the result of the prohibited conduct); and (3) that the defendant did so with intent to harass, annoy, or alarm another person (i.e., the requisite state of mind).

3. Evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or a jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.

4. "Substantial evidence" as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.

5. Where an adjudication of guilt is premised solely upon the spoken word, constitutional considerations are necessarily implicated. When possible, legislative enactments contained in the Hawai'i Penal Code are interpreted so as to uphold their constitutionality. The appellate court presumes that such legislation purports to operate within the limitations of the United States and Hawai'i Constitutions. Both the first amendment to the United States Constitution and article I, section 4 of the Hawai'i Constitution protect the people against governmental encroachment on their freedom of speech.

6. Whether speech is protected by the first amendment to the United States Constitution, as applied to the states through the due process clause of the fourteenth amendment, is a question of law that is freely reviewable on appeal. The same proposition holds true with respect to article I, section 4 of the Hawai'i Constitution.

7. State free speech provisions are not generally violated by criminal statutes that, properly drawn, are aimed at the injurious effects of a threatening communication rather than the communication itself.

8. For speech to be punishable under HRS § 711-1106(1)(b), there must be a causal relationship between the speech at issue and the disturbance sought to be prevented--i.e., the likelihood of provoking a violent response. Establishing such a causal relationship requires an examination of the totality of the circumstances, or, put differently, the context in which the speech is uttered. The fact that the object of the speech is a trained and experienced police officer is a part of that context.

9. Where abusive speech is directed at a police officer, it must generally be coupled with outrageous physical conduct, which exacerbates the risk that the officer's training and professional standard of restrained behavior will be overcome such that the officer will be provoked into a violent response, in order to rise to the level of harassment punishable under HRS § 711-1106(1)(b).

10. The appellate court's customary deference to the trial court upon essentially a factual question is qualified by its duty to review the evidence independently in cases involving a possible infringement upon the constitutional right of free expression.

11. The paradigm case covered by HRS § 711-1106(1)(b) is the intentional utterance of words so assaultive of personal dignity that they are likely to provoke physical retaliation against the speaker. It is the prospect of violence and disorder that the statute seeks to avoid and not merely unwelcome or unfriendly conversation. The scope of the offense must be determined in light of its underlying purpose to prohibit speech that is likely to precipitate unlawful action. Whether such likelihood exists is determined objectively. That the standard is objective, however, does not mean that it is uniform in all situations. Often, the issue of criminal liability will turn on a matter of context.

12. The appellate court's interpretation of HRS § 711-1106(1)(b) is based on a minimum requirement that, in a criminal context, words that are not objectively likely to cause a breach of the peace, in the situation in which they are used, are not fighting words and may not be punished under either the United States or Hawai'i constitutions.

13. Abuse far beyond what any other citizen might reasonably be expected to endure need not be endured by the police. But epithets directed at police officers are not fighting words merely because they might be so if directed at some other person. The nature of the experience, training, and responsibilities of police officers must be considered in determining whether a given defendant's language constituted fighting words.

13. A legislature could not create a crime of "antisocial communication," which would penalize communication that offended or generated other noncriminal harms.

Todd Eddins, Deputy Public Defender, on the briefs, Honolulu, for juvenile-appellant.

Alexa D.M. Fujise, Deputy Pros. Atty., on the briefs, Honolulu, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

LEVINSON, Justice.

The present appeal requires us to answer the following significant question of first impression in this jurisdiction: What are the constitutional constraints placed upon the state's power to prosecute a criminal defendant for the offense of "harassment," in violation of Hawai'i Revised Statutes (HRS) § 711-1106(1)(b) (1985), ¹ by the "fighting words" doctrine originally enunciated in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)? The issue arises in the context of the juvenile-appellant John Doe's (the Minor) claim that the evidence presented at his adjudication hearing, pursuant to the petition filed by the state, was insufficient to permit the district family court to adjudge him a "law violator" in accordance with HRS ch. 571 (1985 & Supp.1992) ² and the Hawai'i Family Court Rules (HFCR). ³ Because, for the reasons stated in this opinion, the evidence was insufficient as a matter of law to establish that the Minor violated HRS § 711-1106(1)(b), we reverse the district family court's order and decree and remand for the entry of an order dismissing the petition. ⁴

I. BACKGROUND

On November 14, 1991, pursuant to HRS § 571-11(1) (1985), a petition was filed in the Family Court of the First Circuit Court, State of Hawai'i, alleging that:

On or about the 20th day of September, 1991, in the City and County of Honolulu, State of Hawai'i, [the Minor], with intent to harass, annoy, or alarm Officer Timothy Mariani, did insult, taunt, or challenge said Officer Timothy Mariani, in a manner likely to provoke a violent response, thereby committing the offense of Harassment in Violation of [HRS s] 711-1106(1)(b).

An adjudication hearing was conducted in the district family court on February 3, 1992. The prosecution called Officer Mariani as its sole witness, and the Minor (who was represented by counsel) adduced the testimony of four witnesses, including himself.

The unchallenged findings of fact (FOF), as entered by the district family court on April 15, 1992 pursuant to HFCR 52(a) (1982), ⁵ were in relevant part as follows:

1. [The Minor] is the subject minor of this matter whose birth date is January 5, 1976;

2. The events which form the basis of this matter occurred near and at the Minor's residence, 1137 Hala Drive, Apt. No. 13-B, also known as Lanakila Housing (hereinafter "Housing"), which is situated in the City and County of Honolulu, State of Hawai'i;

3. On September 20, 1991, Officer Timothy Mariani from the Honolulu Police Department, responded to a complaint of noise from a "loud radio" within the Housing area;

4. Upon his arrival at the Housing area, Officer Mariani approached four males who were seated upon a wall, constructed alongside a road within the Housing area;

5. The Minor was one of the four males present and seated upon this wall and was questioned by Officer Mariani about his age ⁶ and absence from school;

6. The Minor's response to Officer Mariani's inquiry relating to school was that he was "sick", after which the Minor was escorted back to his home on foot by Officer Mariani;

7. ... [T]he Minor was angry and upset about the situation and manner in which Officer Mariani was treating him;

8. The Minor was in his house and Officer Mariani was outside of the home, just outside the front screen door, when the Minor was being questioned by his mother;

9. ... [T]he Minor's response and conversation with his mother was sarcastic, disrespectful, and vulgar;

10. ... Officer Mariani verbally...