Donley v. City of Mountain Brook

• Decision Date: 18 May 1982
• Docket Number: 6 Div. 742
• Citation: 429 So.2d 603
• Parties: Michael Erin DONLEY v. CITY OF MOUNTAIN BROOK.
• Court: Alabama Court of Criminal Appeals

Page 603

429 So.2d 603

Michael Erin DONLEY v. CITY OF MOUNTAIN BROOK.

6 Div. 742.

Court of Criminal Appeals of Alabama.

May 18, 1982.

Rehearing Denied June 8, 1982.

William N. Clark and Stephen W. Shaw of Redden, Mills & Clark, Birmingham, for appellant.

Carlos E. Heaps, Birmingham, for appellee.

TYSON, Judge.

The City of Mountain Brook filed a complaint against appellant charging him with committing the crime of harassing communications in violation of Ala.Code § 13A-11-8(b)(1)(b) (Supp.1981). The appellant was tried in Jefferson County Circuit Court and the jury found him guilty as charged in the complaint. Following appellant's conviction the trial court conducted a sentence hearing. Taking into consideration appellant's prior "difficulties with the law," ¹ the trial court set his punishment at six months' hard labor in the City of Mountain Brook and, in addition, assessed a fine of $500. (R. 202,206) Appellant gave oral notice of appeal at the conclusion of the sentence hearing. Appellant was subsequently given a hearing on his motion for new trial and the motion was denied.

Omitting its formal parts, the City of Mountain Brook's complaint against appellant reads as follows:

"Comes now the City of Mountain Brook, Alabama, a municipal corporation and complains that within twelve months before the beginning of this prosecution and within the corporate limits or the police jurisdiction of the City of Mountain Brook, MICHAEL ERIN DONLEY did, on to-wit: the 4th day of February, 1981, with the intent to harass JANE J. MULLINS, made, to-wit: nine (9) telephone calls to the residence of JANE J. MULLINS continuing until early morning hours without a conversation ensuing and with no purpose of legitimate communication contrary to and in violation of Title 13A-11-8, Code of Alabama, 1975. Ordinance Number 796 of the City of Mountain Brook, Alabama declares that all acts or omissions which are misdemeanors under the laws of the State are offenses against the City and that it shall be unlawful for any person to commit any such offense within the corporate limits of the City or its police jurisdiction.

"Ordinance Number 796 of the City of Mountain Brook, Alabama, was duly adopted by the Mayor and City Council of said City in full compliance with the laws of the State on January 14, 1980 and was in full force and effect on, to-wit: the 4th day of February, 1981." (R. 217)

And for the sake of clarity, we here set out Ala.Code § 13A-11-8(b), under which appellant was convicted, in its entirety:

"(b) Harassing communications.--(1) A person commits the crime of harassing communications if, with intent to harass or alarm another person he:

"a. Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail or any other form of written or electronic communication, in a manner likely to harass or cause alarm; or

b. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or

c. Telephones another person and addresses to or about such other person any lewd or obscene words or language.

Nothing in this section shall apply to legitimate business telephone communications.

"(2) Harassing Communications is a Class C misdemeanor."

Of particular relevancy in the instant prosecution is subparagraph (b) of the above section. As can be seen above, the wording in the complaint substantially follows the language of subparagraph (b). The applicability of this subparagraph to the present facts will be discussed more thoroughly later in the opinion.

Viewing the evidence presented by the prosecution in its most favorable light, as we are required, Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968), we find that Ms. Allison Jane Ryan and appellant were married in August of 1978. The couple lived together as husband and wife in an apartment at 1621-A Valley Avenue in the City of Homewood until December 15 1980 when Ms. Ryan separated from appellant and went to live with her mother, sisters and step-father in their home at 3157 Warrington Road in Mountain Brook. Both Homewood and Mountain Brook are municipalities in Jefferson County. At the time of their separation Ms. Ryan and appellant were the only occupants of their particular apartment. And to Ms. Ryan's knowledge no one besides appellant occupied the apartment after their separation; however, Ms. Ryan did not return to the apartment after December 15. Ms. Ryan testified that at the time she and appellant separated their telephone number at the apartment was 933-8972 and was listed in appellant's name. Ms. Ryan and appellant were divorced on February 6, 1981.

Sergeant B.L. Patterson, a detective from the City of Mountain Brook, stated that he received a complaint from the Mullins' residence at 3157 Warrington Road on January 18, 1981. The nature of the complaint was that the Mullinses were receiving harassing telephone calls. In response to the complaint Sergeant Patterson notified the telephone company and on February 2 requested that tracing equipment be placed on the Mullins' telephone line in order to determine the origin of the harassing calls. As a result of the tracing, a warrant for appellant's arrest was issued on February 4.

Mrs. Josh S. (Jane) Mullins testified that after her daughter, Allison Ryan, returned to the Mullins' home following her separation from appellant, she (Mrs. Mullins) complained to the Mountain Brook Police Department about certain harassing telephone calls she was receiving. "I told the police I had the phone off the hook at 2 a.m. in the morning because I couldn't sleep, my family couldn't sleep...." (R. 25) Mrs. Mullins testified that when she would answer the phone and say "hello" that "sometimes there would be just breathing and sometimes I would just hear a click immediately." (R. 28) Mrs. Mullins stated that she was advised to have the telephone company place a tracer on her telephone line, which she did. "After I talked to the phone company, they asked me to keep a log of the times that I received the hang-up calls." (R. 27) Mrs. Mullins' log for the date in question, February 4, revealed that she received the harassing type calls described above at 1:15 a.m., 1:27 a.m., 1:27 a.m., 1:32 a.m., 1:46 a.m., 6:52 a.m., 7:03 a.m., 10:31 a.m. and 9:36 p.m. "There were two at 1:27, that is because I hung it up and it just rung again and I picked it up again." (R. 28) Nothing was said by the caller during any of the nine calls. Mrs. Mullins testified that she answered all nine of the hang-up calls, that she had instructed each member of the household, including her daughter Allison, not to answer the phone.

Through the testimony of Mr. Elbert Balch and Mr. Nathan Funderburke, both employees of South Central Bell, it was ascertained that, in response to a complaint from the Mullins' residence on January 29, a tracing device or "trap" was placed on the Mullins' telephone line. Subsequent to the "trap" becoming operational it was learned by South Central Bell that the harassing hang-up calls were originating from appellant's telephone number, 933-8972, which was listed at 1621 Valley Avenue, Homewood, Apt. 4. The telephone company's records of the early morning communications received by Mrs. Mullins on February 4 corresponded substantially with the times recorded by Mrs. Mullins in her log for that date. Appellant's telephone at the above address had been installed on September 7, 1978.

At the conclusion of the state's evidence appellant's motion to exclude was overruled. The defense then rested its case without presenting any evidence.

I

Appellant challenges the constitutionality of the section under which he was convicted. He contends that Ala.Code § 13A-11-8(b)(1)(b) (Supp.1981) is "so impermissibly vague and overbroad" as to be in violation of the First and Fourteenth Amendments to the United States Constitution and to Article One, § 6 to the Constitution of Alabama. We disagree with this contention and hold that the above statute can be construed with "narrow specificity" so as to limit its application to conduct that is not protected under the First and Fourteenth Amendments. Ex Parte Frolik, 392 So.2d 846, 847 (Ala.1981).

We are mindful of the presumption that statutes are constitutional. State v. Spurlock, 393 So.2d 1052 (Ala.Cr.App.1981). This court will not hold them unconstitutional unless convinced beyond a reasonable doubt of their unconstitutionality. Alabama Dairy Commission v. Food Giant, Inc., 357 So.2d 139 (Ala.1978). The party challenging the constitutionality of a statute has the burden of establishing its invalidity. Jefferson County Board of Health v. City of Bessemer, 293 Ala. 237, 301 So.2d 551 (1974); Kinney v. State, 404 N.E.2d 49 (Ind.App.1980). A statute susceptible of more than one construction will be so interpreted as to secure the benefit intended, will best effect the legislative intent, and so that it will be constitutional. Alobaidi v. State, 433 S.W.2d 440 (Tex.Cr.App.), cert. denied, 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281 (1968); Accord, State v. Elder, 382 So.2d 687, 690 (Fla.1980); People v. Smith, 89 Misc.2d 789, 392 N.Y.S.2d 968 (1977). Although criminal statutes must be strictly construed in favor of those sought to be subject to their operation, the interests of justice demand that criminal statutes not be construed irresponsibly. In construing a statute this court has an obligation to ensure that such construction is in line with common sense and practicality of application. Nobis v. State, 401 So.2d 191 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (Ala.1981).

As our Supreme Court in addressing the issue of statutory overbreadth wrote in Frolik, supra:

"State statutes designed to punish spoken words can be upheld if, as authoritatively construed by the state courts, they are narrowly limited in their application to speech that is not protected under the First and Fourteenth Amendments. See, e.g., Chaplinsky v. New...