Deehl v. Knox, s. 81-592

• Decision Date: 11 May 1982
• Docket Number: 81-768,Nos. 81-592,s. 81-592
• Citation: 414 So.2d 1089
• Parties: The Honorable Robert M. DEEHL, as County Judge of the Dade County Court, Appellant, v. George F. KNOX, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 1089

414 So.2d 1089

The Honorable Robert M. DEEHL, as County Judge of the Dade County Court, Appellant, v. George F. KNOX, Jr., Appellee.

Nos. 81-592, 81-768.

District Court of Appeal of Florida Third District.

May 11, 1982.

Rehearing Denied June 22, 1982.

Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., Janet Reno, State Atty. and Ira N. Loewy, Asst. State Atty., for appellant.

Sams, Gerstein & Ward, P. A., Carhart & McGuirk, P. A., Daniels & Hicks and Sam Daniels, Miami, for appellee.

Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.

SCHWARTZ, Judge.

The appellant is a judge of the Dade County Court against whom a writ of prohibition was issued precluding the trial of the appellee on a misdemeanor information which alleged a violation of Section 918.14(1)(b), Florida Statutes (1979). ¹ This portion of the so-called witness tampering statute forbids knowingly inducing or attempting to induce a witness in a pending proceeding from "[w]ithhold[ing] any testimony, information, document, or thing." ² The ruling below ³ was based on the conclusion that the provision is facially invalid for first amendment overbreadth. We disagree and, upon the conclusion that, properly interpreted, the statute is in fact constitutional, reverse the judgment below.

The appellee's position is based upon the undeniable fact that the literal language of the statute reaches conduct which is at once innocent and protected by the guarantees of free speech, assembly and association contained in the first amendment to the United States Constitution and Article I, Sections 4 and 9 of the Florida Constitution. He suggests that it prohibits, for example, an attorney from properly advising his client to plead the fifth amendment ⁴ or a physician, clergyman, or family member from a good-faith suggestion that a witness--for reasons of his own well-being--should not testify. If any of this protected activity is in fact or could cogently be deemed prohibited by the statute, § 918.14(1)(b) would indeed be constitutionally overbroad and hence invalid. E.g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir. 1980); State v. Keaton, 371 So.2d 86 (Fla.1979). But, as we construe it, it simply does not so provide.

It is axiomatic that courts are required to interpret a statutory provision--if consistent with the ultimate polestar of the issue, the legislative intent ⁵--so as to render it immune from claims of unconstitutionality, White v. State, 330 So.2d 3 (Fla.1976), including one of overbreadth. ⁶ Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir. 1982); State v. Elder, 382 So.2d 687 (Fla.1980); State v. Saunders, 339 So.2d 641 (Fla.1976). Here, as in many other instances, that requirement may and therefore must be effectuated by giving the statute a limiting construction which requires that the act or words forbidden only in general terms be performed or uttered with criminal intent. State v. Allen, 362 So.2d 10 (Fla.1978) (construing theft statute as including unstated but constitutionally-required element of unlawful intent). In the case of the provision before us, the forbidden intent which is thus deemed an element of the offense is one "corruptly to interfere with the administration of justice." Thus, in 67 C.J.S. Obstructing Justice § 8 (1950), it is said

[t]he gist of the offense [of witness tampering] is the willful and corrupt attempt to interfere with and obstruct the administration of justice.

See also, Zalla v. State, 61 So.2d 649, 651 (Fla.1952) ("The gist of the offense of 'attempted bribery' is the criminal intent to undermine the proper and orderly administration of justice. The law punishes an offer which is calculated to debase. The corpus delicti is the corrupt intent.")

A criminal intent of this nature was deemed an element of the common law crime of witness tampering. See R. v. Kellett, [1975] 3 All E.R. 468, in which the court, in the course of an exhaustive discussion of the issue, pointed out that the

Report of the Committee on Contempt of Court, December 1974 ... regards the intent necessary for the offence which we have to consider as implicit in its name:

'... that the intended interference is improper or wrong. Thus, a person who encourages a witness to come forward, or a solicitor who advises against taking or defending legal proceedings may be described as intending to interfere, but is clearly doing no wrong, and cannot be liable....'

[1975] 3 All E.R. at 477. See also, 10 Halsbury, The Laws of England § 1194 (3d ed. G. Simonds 1955). It is the general rule that statutes, including criminal ones, should be construed to reflect the common law, unless, as it did not in this instance, the legislature clearly indicates otherwise. Akins v. Bethea, 160 Fla. 99, 33 So.2d 638 (1948); State v. Little, 400 So.2d 197 (Fla. 5th DCA 1981) (elements of common law crime of poaching deemed incorporated into Florida statute); see also, Purvis v. State, 377 So.2d 674 (Fla.1979) (common law definition of fornication read into Florida statute rendering it invalid as contrary to equal protection clause). Much more specifically, the supreme court has consistently engrafted the limiting common law definitions of riot and unlawful assembly upon the Florida statutory law, Sections 870.01-.03, Florida Statutes (1979), in order to remove a first amendment overbreadth objection which would admittedly have been well-taken if only the actual verbiage of the statutes were considered. Mobley v. State, 409 So.2d 1031 (Fla.1982); State v. Simpson, 347 So.2d 414 (Fla.1977), appeal dismissed, 434 U.S. 961, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977); State v. Beasley, 317 So.2d 750 (Fla.1975). These cases are controlling and determinative of the one at bar.

In contrast to several cases in which a constitutional statutory construction was precluded by a conclusive indication that it was not in accordance with the wishes of the legislature, State v. Keaton, 371 So.2d 86 (Fla.1979); Brown v. State, 358 So.2d 16 (Fla.1978); Purvis v. State, supra, there is no doubt that our restrictive interpretation of § 918.14(1)(b) is in full accord with the legislative intent. First, it is quite obvious that the legislature could not have wished to criminalize the innocent, indeed commendable conduct to which the unglossed words of the statute would apply. This view is confirmed by specific legislative indications to this effect. Plainly, § 918.14(1)(b) must not be considered in isolation, but in the light, not only of the other portions of the same statute, but of the entire body of statutory law. Cobb v. Wainwright, 666 F.2d 966 (5th Cir. 1982); Garner v. Ward, 251 So.2d 252 (Fla.1971). In this case, the intent to penalize only actions performed with an element of criminality is forcefully demonstrated by the fact that each of the other subsections of § 918.14 specifically so provides. As is shown also by the very title of the original enactment of § 918.14, Ch. 72-315, Laws of Florida--"AN ACT relating to obstructing justice"--it is plain that the section we consider here had the sole--and manifestly beneficent--purpose of protecting the administration of justice from the intervention of those acting with criminal intent. Moreover, in terms of the "fifth amendment advice" question which the appellee has chosen to emphasize here, ⁷ it is noteworthy that the invocation of the attorney-client privilege is specifically recognized by § 90.502, Fla.Stat. (1979) as a basis for advising one not to testify. § 90.501, Fla.Stat. (1979); see also § 90.503 (psychotherapist-patient privilege); § 90.504 (husband-wife privilege); § 90.505 (clergyman-penitent privilege). It is inconceivable that the legislature intended by one statute to make a misdemeanor what it has specifically authorized in another.

The requirement of a corrupt intent to establish guilt of the offense clearly removes "the threat of deterrence to constitutionally protected expression" and thus obviates the appellee's overbreadth contention. Grand Faloon Tavern, Inc. v. Wicker, supra, at 670 F.2d 946. Any innocent, protected words or conduct would, by definition, not be uttered or performed with a criminal intent and would not therefore constitute a violation of the statute. R. v. Kellett, supra; see Carricarte v. State, 384 So.2d 1261 (Fla.1980), cert. denied, 449 U.S. 874, 101 S.Ct. 215, 66 L.Ed.2d 95 (1980); Trushin v. State, 384 So.2d 668 (Fla. 3d DCA 1980), review denied, --- So.2d ---- (Fla. Case no. 59,378, opinion filed, July 30, 1981). On the other hand, any attempt to dissuade a witness which is motivated by the corrupt intent we have defined is not constitutionally protected and thus may (and should) be validly forbidden by the state. United States v. Mitchell, 397 F.Supp. 166, 172 (D.C.1974), aff'd sub nom. United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977) (upholding constitutionality of 18 U.S.C. § 1503, making it a crime to '[c]orruptly ... endeavor to influence, intimidate, or impede any witness....'); see United States v. Baker, 611 F.2d 964 (4th Cir. 1979); United States v. Stofsky, 527 F.2d 237 (2d Cir. 1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976); United States v. Fayer, 523 F.2d 661 (2d Cir. 1975); The Florida Bar v. Lopez, 406 So.2d 1100, 1102 (Fla.1981) (recognizing § 918.14(1), (2) in attorney discipline context); see also, Trushin v. State, supra, at 384 So.2d 674, n. 17, and cases cited.

Finally, we reject the appellee's fall-back position that a limiting construction of § 918.14(1)(b) which negates the overbreadth objection would render it invalid for another reason, that of vagueness. ⁸ The test of determining if a criminal statute is impermissibly vague is whether it conveys a sufficiently definite warning to one...