Conkle v. State

• Decision Date: 14 April 1995
• Citation: 677 So.2d 1211
• Parties: Kevin Dion CONKLE v. STATE. Cr-93-2020.
• Court: Alabama Court of Criminal Appeals

Page 1211

677 So.2d 1211

Kevin Dion CONKLE v. STATE.

Cr-93-2020.

Court of Criminal Appeals of Alabama.

April 14, 1995.

Rehearing Denied July 28, 1995.

Certiorari Quashed May 24, 1996

Alabama Supreme Court 1941732.

Curtis Rosser, Centre, for Appellant.

Jeff Sessions, Atty. Gen., and Jack Willis, Asst. Atty. Gen., for Appellee.

McMILLAN, Judge.

The appellant, Kevin Dion Conkle, was convicted in district court of harassment, a violation of § 13A-11-8(a)(1)(b), Code of Alabama 1975. He was sentenced to 90 days' imprisonment in the county jail; the sentence suspended for two years on the following conditions: that the appellant not violate any state, federal, or municipal laws during the period of suspension and that he not have any contact with the prosecuting witness. Additionally, he was ordered to pay a $25 fine.

Included in the record is a "Certification of Questions of Law" submitted by the trial court to this court pursuant to Rule 30.2(2), Ala.R.Crim.P., following the trial court's determination of guilt. Within that certification, the trial court set out the facts presented in this case and submitted certain questions of law to this court concerning solely verbal threats. The following is the "Certification of Questions of Law":

"A. Statement of Facts "On June 21, 1994, Defendant, Mr. Conkle, was tried in district court and adjudged guilty of directing abusive or obscene language toward the prosecuting witness, Ms. Beverly Maxwell, in violation of § 13A-11-8(a)(1)(b), Code of Alabama 1975 (1979).

"At the time of the alleged incident, Mr. Conkle was involved in a matter with the Cherokee County Department of Human Resources (DHR) regarding Mr. Conkle's alleged behavior toward his juvenile daughter. At trial, Mr. Conkle testified that he believed Ms. Maxwell to be the person responsible for DHR's intervention in his life. Ms. Maxwell testified that she had knowledge that Mr. Conkle had accused her of reporting him to DHR in that matter. Ms. Maxwell testified that, on the date of the incident, she arrived at a local country convenience store and began pumping gas into her automobile at a time when Mr. Conkle was using a public phone at the side of that convenience store. She testified that when Mr. Conkle finished with his phone call, he drove between the gas pumps of the convenience store, slowed down or stopped, rolled down his window, stared at her, said: 'I'm going to get you, little girl. You're as good as dead,' and drove off. Upon cross-examination, Ms. Maxwell testified that she was frightened by Mr. Conkle's words but that Mr. Conkle's words did not at any time cause her to want to hit Mr. Conkle or to fight with him. No physical action on the part of Mr. Conkle was alleged by the State or testified to by Ms. Maxwell--merely the words quoted above. No present intent or ability to carry out the alleged words was alleged by the State, testified to by Ms. Maxwell, or evident from the circumstances or facts of the case; on the contrary, Ms. Maxwell testified Mr. Conkle drove off after uttering the alleged words.

"Following the presentation of evidence by the State, Mr. Conkle moved the court for a Judgment of Acquittal. As grounds, Mr. Conkle, citing Robinson v. State, 615 So.2d 112 (Ala.Crim.App.1992), wherein the Alabama Court of Criminal Appeals held that the words 'abusive or obscene language' contained in § 13A-11-8(a)(1)(b), Code of Alabama 1975 (1979), apply only to 'fighting words,' noted that the State had failed to show that the words alleged to have been spoken by Mr. Conkle had provoked a desire to hit or fight in Ms. Maxwell but rather, if anything, had shown that Mr. Conkle's alleged words had only frightened or scared Ms. Maxwell. The motion was denied by the court.

"Mr. Conkle testified that after he finished with his phone call, he drove between the gas pumps at the convenience store, saw Ms. Maxwell pumping gas, looked at her momentarily without stopping, and drove away. Ms. Conkle, a passenger in Mr. Conkle's car and his fiancee at the time of the incident, testified and corroborated Mr. Conkle's testimony.

"At the end of trial, a Motion for Judgment of Acquittal was again made and denied. The court found Mr. Conkle to have uttered the words as testified to by Ms. Maxwell and on the basis of that finding adjudged him guilty of Harassment as defined in § 13A-11-8(a)(1)(b), Code of Alabama 1975 (1979).

"B. Questions of Law

"1. Given the Alabama Court of Criminal Appeals' ruling in Robinson v. State, 615 So.2d 112 (Ala.Crim.App.1979 [1992] ), wherein the Court construed the words 'abusive or obscene language' as contained in § 13A-11-8(a)(1)(b), Code of Alabama 1975 (1979), to apply only to 'fighting words,' do the words 'I'm going to get you, little girl. You're as good as dead.' constitute 'fighting words' under the circumstances and facts of this case?

"2. Do the words 'I'm going to get you, little girl. You're as good as dead.' constitute 'abusive or obscene language' as contained in § 13A-11-8(a)(1)(b), Code of Alabama 1975 (1979), under the circumstances and facts of this case?

"3. Assuming arguendo Mr. Conkle had intended to frighten or scare Ms. Maxwell by uttering the words as alleged, does the mere fact of uttering the alleged words with nothing more for the purpose of frightening or scaring constitute Harassment as defined by § 13A-11-8(a)(1)(b), Code of Alabama 1975 (1979)?

"4. Has the State proven the necessary elements of Harassment, § 13A-11-8(a)(1)(b), Code of Alabama 1975 (1979), under the circumstances and facts of this case?

"I certify the four questions of law presented above are correctly stated and are the appropriate questions for review upon appeal in the above-styled case.

"Done this Wednesday, August 17, 1994."

In his brief on appeal, the appellant argues that the trial court erred in finding him guilty of harassment. Specifically, he alleges that the State failed to prove that the words he used against the prosecuting witness were "fighting words." Robinson v. State, 615 So.2d 112, 113 (Ala.Cr.App.1992). Thus, the questions raised by this case are whether the verbal threat made by the appellant, which was not accompanied by any physical conduct, constituted harassment and, further, whether such a verbal threat, without more, can constitute a crime in this State under the present laws.

The First Amendment to the United States Constitution promises that "Congress shall make no law abridging the freedom of speech." However, over the past 200 years, the United States Supreme Court has:

" 'permitted restrictions upon the content of speech in a few limited areas, which are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." We have recognized that "the freedom of speech" referred to by the First Amendment does not include a freedom to disregard these traditional limitations.' "

Jeffrey M. Laurence, Minnesota Burning: R.A.V. v. City of St. Paul and First Amendment Precedent, 21 Hastings Const. L.Q. 1117 (Spring 1994), quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 381-85, 112 S.Ct. 2538, 2542-43, 120 L.Ed.2d 305 (1992). Thus, freedom of speech has been curtailed for certain limited purposes, including prohibiting libel, slander, perjury, conspiracy, and treason.

"The right to free speech is valuable insofar as it enables the speaker to participate in a dialogue. Outside the context of a dialogue, a speaker's right to speech becomes only an empty right to talk. It is, therefore, most helpful to distinguish between 'context in which talk leaves room for reply and those in which talk triggers action or causes harm without the time or opportunity for response.' "

Aviva O. Wertheimer, The First Amendment Distinction Between Conduct and Content: A Conceptual Framework for Understanding Fighting Words Jurisprudence, 63 Fordham L.Rev. 793 (December 1994) (citations omitted).

A line of cases has emerged from the United States Supreme Court creating the doctrine of "fighting words," which proscribed certain classes of speech in order to prevent potentially violent conduct.

"Some fifty years ago, the Supreme Court established the doctrine of 'fighting words,' which limited the 'license to talk' when the chosen words took on the force of violent aggression that was likely to result in retaliatory conduct. The basic principle of the doctrine was that, under certain circumstances, communications--apart from the content of their message--take on a hostile, fighting quality that makes the communications more likely to engender violent consequences. In defining a category termed 'fighting words,' the Court wrote that '[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.'

"In establishing the fighting words doctrine, the Court determined that when a speaker's words do not contribute to dialogue or the expression of ideas, but are instead intended to provoke harmful conduct, they have no value as instruments of 'speech.' Therefore, they may be regulated without contravening the First Amendment. While 'speech' is protected under the Constitution, words that do not promote dialogue or the exchange of ideas are instruments of something other than speech. Depending on the context and circumstances behind the communications, a speaker's words may have nothing at all to do with the exercise of the constitutional right to freedom of speech.

"Ultimately, however, the Court designed fighting words as a category of speech wholly unprotected by the First Amendment--even though the fighting words doctrine is only incidentally related...