District of Columbia v. Garcia

• Decision Date: 01 April 1975
• Docket Number: No. 8625.,No. 8624.,No. 8623.,8623.,8624.,8625.
• Citation: 335 A.2d 217
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Alejandro GARCIA, Appellee. DISTRICT OF COLUMBIA, Appellant, v. Vincent Julian HILLIARD, Appellee. DISTRICT OF COLUMBIA, Appellant, v. Michael LEHMANN, Appellee.
• Court: D.C. Court of Appeals

Page 217

335 A.2d 217

DISTRICT OF COLUMBIA, Appellant, v. Alejandro GARCIA, Appellee.

DISTRICT OF COLUMBIA, Appellant, v. Vincent Julian HILLIARD, Appellee.

DISTRICT OF COLUMBIA, Appellant, v. Michael LEHMANN, Appellee.

No. 8623.

No. 8624.

No. 8625.

District of Columbia Court of Appeals.

Argued December 5, 1974.

Decided April 1, 1975.

COPYRIGHT MATERIAL OMITTED

David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellant.

Glenn R. Graves, Washington, D. C., for appellees Garcia and Lehmann.

Charles H. Schulze, Washington, D. C., for appellee Hilliard.

Before KELLY and GALLAGHER, Associate Judges, and PAIR, Associate Judge, Retired.

PAIR, Associate Judge, Retired:

In these consolidated cases, appellees (defendants) Garcia, Hilliard and Lehmann were each charged by informations filed in the Criminal Division of Superior Court, with making a "lewd, obscene and indecent sexual proposal in violation of Section 22-1112(a) of the District of Columbia Code".¹ Appellees moved to dismiss the informations claiming that the clause of § 22-1112(a) under which they were charged was unconstitutionally vague and overbroad. Appellees Garcia and Lehmann also claimed there was no corroboration of the sexual proposal, a defense which was not reached below and which we need not consider here because of the court's disposition of the motions on constitutional grounds. After a pretrial hearing on May 28, 1974, Judge Norman granted the motions and dismissed the informations. This appeal by the District of Columbia followed. See D.C.Code 1973, § 23-104(e).

For the purposes of the hearing on the motions to dismiss only, appellees stipulated to the facts as represented by the police reports (Form 163) prepared by Officer Andrews who made the arrests. The substance of these reports, as amplified by Officer Andrews' testimony is as follows:

[No. 8623 — Garcia]

At about 10:20 p. m., on April 17, 1974, Officer Andrews, a plainclothes officer assigned to the Prostitution and Perversion Branch of the Metropolitan Police Department's Morals Division, while standing at the corner of 14th and K Streets, N.W., was approached by appellee Garcia who asked the officer to join him in looking at some movies up the street. The officer at first declined the invitation but after some urging by Garcia, followed him to a nearby bookstore which contained coin-operated movie machines. The two men engaged separate machines. Later, after the officer had engaged another machine at Garcia's suggestion, Garcia "tried to climb in behind [the officer] hunching [him] — at [him]," but was told by the officer to stop. Garcia then asked where the officer was staying, and after being told that it was at the Ambassador Hotel, he asked if the two of them could go to the officer's room there. The officer agreed. As the two were entering the lobby of the hotel, the officer asked Garcia "what he wanted to do." Garcia replied that "he wanted to suck [him] up" or "suck him off" and shortly thereafter was arrested. [No. 8624-Hilliard]

While walking north in the 500 block of 9th Street, N.W., at about 12:33 a. m., on April 20, 1974, Officer Andrews noticed a man-appellee Hilliard-sitting alone in a parked car. Hilliard motioned the officer over to his car and, after inquiring if "it was getting cold," invited the officer into the car. The officer accepted and got into the car on the passenger side. Hilliard then asked the officer where he was staying and was told that it was at the Ambassador Hotel. Hilliard suggested they could have "fun" in the officer's room there. When Officer Andrews replied that he did not know what Hilliard wanted, Hilliard said "he would suck [him] but he wouldn't take it up the ass." The officer thereupon arrested Hilliard.

[No. 8625-Lehmann]

On April 18, 1974, at about 9:10 p. m., appellee Lehmann approached plainclothes Officer Andrews as he was walking north in the 400 block of 11th Street, N.W., and asked him how he "was doing" and where he was staying. The officer indicated he was staying at the Harrington Hotel across the street. Lehmann then asked if the two of them could go to the officer's room and when asked why, Lehmann replied that "he wanted to suck and fuck" the officer. Lehmann was then arrested.

The trial court found these cases "utterly indistinguishable" from District of Columbia v. Walters, D.C.App., 319 A.2d 332, appeal dismissed for want of a properly presented federal question, 419 U.S. 1065, 95 S.Ct. 650, 42 L.Ed.2d 661 (1974). In that case this court found unconstitutionally vague the clause of D.C.Code 1973, § 22-1112(a) which proscribed "any other lewd, obscene, or indecent act." Brought into question in the cases at bar is the constitutionality of another clause of § 22-1112(a), namely, the clause which provides that it shall not be lawful ". . . to make any lewd, obscene, or indecent sexual proposal . . ." Although the sexual proposal clause of § 22-1112(a) contains the same three adjectives found in the clause struck down in Walters, the two clauses are, in our view, clearly distinguishable in terms of constitutional clarity and validity. Consequently, the analysis of the constitutional issues in Walters, is not controlling with respect to the constitutionality of the clause of § 22-1112(a) at issue here.

The sexual proposal clause of § 22-1112(a) was successfully attacked below on two grounds, the appellees, contending (1) that the statute is overbroad, proscribing speech which is protected by the First Amendment; and (2) that the statute proscribing the conduct charged is unconstitutionally vague and thus violative of the Fifth Amendment. After considering these constitutional arguments, we reverse.

I

The void-for-vagueness doctrine as extensively developed by the Supreme Court is a due process doctrine incorporating notions of fair notice or warning.² It requires legislatures "to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent `arbitrary and discriminatory enforcement.'"<sup>3</sup> It is clear from the legislative history of § 22-1112(a), which was enacted in its present form in 1953,<sup>4</sup> that Congress was "deeply concerned with what it termed `sex offenses" within the District of Columbia and that it specifically intended to broaden the offense of indecent exposure and to create a new offense of making a lewd, obscene or indecent sexual proposal."⁵ Congress clearly intended that "[t]hrough diligent application of [§ 22-1112] many [sex] of fenders who have previously not been adequately dealt with may now be curbed before their impulses lead them to the terrible and extreme crimes of carnal knowledge, rape and homicide."⁶ In contradistinction to the clause of § 22-1112 (a) ("any other lewd, obscene, or indecent act") which this court declared unconstitutionally vague in District of Columbia v. Walters, supra, the words "lewd", "obscene" and "indecent" in the clause at issue here are joined with the term "sexual proposal," thereby providing a definite context in which the words can be given meaning:⁷

A sexual "proposal," in the context of § 22-1112(a), connotes virtually the same conduct or speech-conduct as a sexual solicitation; the term clearly implies a personal importunity addressed to a particular individual to do some sexual act⁸ The sexual acts the proposal or solicitation of which are proscribed by § 22-1112(a) are limited to those which are "lewd, obscene or indecent." Furthermore, given the nature of the common law offense of solicitation,⁹ it is appropriate to construe the sexual proposal clause of § 22-1112(a) as limited to solicitations to commit lewd, obscene or indecent sexual acts which if accomplished would be punishable as a crime.¹⁰ Thus various "sex related" offenses in the D.C.Code must be examined to see which, if any, fit into this narrow category of conduct.

As we noted in District of Columbia v. Walters, supra, 319 A.2d at 335 n. 5, "the common law gives no precise meaning to the words lewd, obscene, and indecent but uses them as adjectives of general description." However, the Supreme Court has

. . . consistently held that lack of precision is not itself offensive to the requirements of due process. ". . . [T]he constitution does not require impossible standards"; all that is required is that the language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . . ."

[Roth v. United States, 354 U.S. 476, 491-92, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957), quoting United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L. Ed. 1877 (1947)].

There is scant historical evidence of the enforcement of the sexual proposal clause of § 22-1112(a): very few appeals from convictions for making such sexual proposals have been reported:¹¹ and while all of the reported cases involved "public" acts or proposals, in none of them did the opinion describe the sexual act proposed. In the instant cases, one police officer — the arresting officer — testified that he "believed" he had been trained to interpret the sexual proposal clause of § 22-1112(a) as proscribing public proposals to perform illegal sexual acts, an interpretation which appellant now urges us to adopt. But there is no convincing evidence that the sexual proposal clause of § 22-1112(a) has in practice been so sweepingly applied; nor do we believe the cause reasonably susceptible of such broad application.

Adultery,¹² fornication,¹³ seduction¹⁴ and incest¹⁵ are offenses which derive essentially from a belief in the immorality of heterosexual or natural sexual intercourse out of wedlock or, in the case of incest, between heterosexual couples within prohibited degrees of consanguinity. They are not explicitly directed at sexual...