Lansdell v. State

Citation25 So.3d 1169
Decision Date28 September 2007
Docket NumberCR-05-0243.
PartiesBrandon Lee LANSDELL v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals

Kevin Denver Teague, Decatur, for appellant.

Troy King, atty. gen., and Marc A. Starrett, asst. atty. gen., for appellee.

WISE, Judge.

The appellant, Brandon Lee Lansdell, was convicted of one count of making a terrorist threat, a violation of § 13A-10-15, Ala.Code 1975. Because Lansdell had two prior felony convictions, he was sentenced pursuant to § 13A-5-9, Ala.Code 1975, to 15 years' imprisonment.

The evidence tended to establish that James Allen Jones, Jr., and his family resided at 1408 Beach Street Southeast in Decatur. Lansdell resided next door at 1406 Beach Street Southeast — along with his mother and grandmother. During the early morning hours of October 7, 2003, a car belonging to one of Jones's daughters went up in flames while it was parked beneath the carport of Jones's house. Lansdell broke into the Jones house and woke the family, then went back outside and sat down on the front porch.

When police arrived, the car was "fully engulfed in flames." By the time the fire was brought under control, the carport, the aluminum siding on the house, and another vehicle were also burned. A tree in Lansdell's yard was also smoldering. Found at the scene was a distinctive gasoline can, similar to one owned by Lansdell.

Around 2:00 a.m. on January 3, 2004, Jones went to a side door of his house and saw Elliot Hadavi — the boyfriend of one of his daughters — at the back door to Lansdell's house. Lansdell had been seen running into his house at approximately the same time as they had discovered a stereo missing from Allison's car, and Hadavi wanted to question Lansdell about the incident. As Jones stood nearby, Lansdell came out of his house carrying some type of stick. In turn, Hadavi retrieved a small baseball bat from his car. Lansdell and Hadavi then got into a heated argument. As Jones attempted to restrain Hadavi, he heard Lansdell say, "I wish I would have burned your whole family up that night" or "I wish I would have burned all y'all up that night." Jones believed these words to be a threat to his family, and he notified the police. During the exchange, Jones told Lansdell, "I ought to put a bullet in your a-s-s." Jones then accused Lansdell of starting the fire that had occurred the previous October.

By the time the police arrived, Lansdell was back inside his house. According to Jones, Lansdell stood at the window to his house and called out that, "I'll just blow y'all's a-s-s up." A number of people heard Lansdell's comments, including Jones, his daughters, Hadavi, and the police officers dispatched to the scene. Decatur police officer Keith Hornbuckle heard Lansdell say, "Jimmy, I'm going to blow up your m____ f____ house and burn all you m____ f____." Lansdell was subsequently arrested and charged with first-degree arson, based on the October 2003 incident, and with making a terrorist threat, based on the January 2004 incident.

At trial, evidence concerning difficulties between Lansdell and the Jones family was presented. Jones testified that he believed that approximately five months before the October 2003 fire, Lansdell had stolen a stereo from one of the Joneses' cars. However, Jones was reluctant to press charges because he did not want any retaliation.

April Greene, a half-cousin of Lansdell, who once lived at the Beach Street house with Lansdell also testified. She stated that a few days before the October 2003 fire at the Jones house her car was burned, as well as Lansdell's. Greene identified the distinctive gas can found at the scene of the October 2003 fire at the Jones house as belonging to Lansdell.

Lansdell's grandmother, Loren Alexander, testified on her grandson's behalf. She stated that Lansdell had gone next door to save the Jones family. She further stated that during the January 2004 confrontation she never heard Lansdell threaten anyone.

After both sides rested, the trial court instructed the jury on the law applicable to Lansdell's case. The jury acquitted Lansdell of first-degree arson, but found him guilty of making a terrorist threat. This appeal followed.

I.

Lansdell argues that the statute under which he was convicted, § 13A-10-15, Ala.Code 1975, is unconstitutional. Specifically, he argues that this statute is both overbroad and vague.

Section 13A-10-15 provides, in pertinent part:

"(a) A person commits the crime of making a terrorist threat when he or she threatens by any means to commit any crime of violence or to damage any property by doing any of the following:

"(1) Intentionally or recklessly:

a. Terrorizing another person."

The validity of a statute may be challenged under two different doctrines: the overbreadth doctrine and the vagueness doctrine. City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). "[T]he overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when `judged in relation to the statute's plainly legitimate sweep.'" Morales, 527 U.S. at 52, 119 S.Ct. 1849 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). Moreover, "even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests." Morales, 527 U.S. at 52, 119 S.Ct. 1849 (citing Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). The overbreadth doctrine protects the rights guaranteed by the First Amendment, see Morales, 527 U.S. at 52, 119 S.Ct. 1849; the vagueness doctrine seeks to protect the due-process rights guaranteed by the Fourteenth Amendment. See Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939).

As evidenced above, the overbreadth doctrine applies to activities that are protected from prosecution by the First Amendment. As this Court has noted:

"`"The overbreadth doctrine derives from the First Amendment, see Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), and serves to invalidate legislation so sweeping that, along with its allowable proscriptions, it also restricts constitutionally-protected rights of free speech, press, or assembly, see e.g., Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971)."'"

Elston v. State, 687 So.2d 1239, 1244 (Ala. Crim.App.1996) (quoting McCall v. State, 565 So.2d 1163, 1165 (Ala.Crim.App.1990)); accord Hyshaw v. State, 893 So.2d 1239, 1242 (Ala.Crim.App.2003).

The overbreadth doctrine is to be used sparingly and only as a last resort. See Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. 2908. A challenge to a statute on the grounds of overbreadth is "the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [a]ct would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The fact that a statute might, under the right set of circumstances, be unconstitutional "is insufficient to render it wholly invalid, since we have not recognized an `overbreadth' doctrine outside the limited context of the First Amendment." Salerno, 481 U.S. at 745, 107 S.Ct. 2095.

Just as words that create an immediate panic — such as a false cry of "fire" in a crowded theater — are not entitled to constitutional protections, see Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919), Lansdell has no First Amendment right to threaten to commit a violent crime or to damage property and thus to terrorize the person to whom his threat is directed. As the United States Supreme Court has made clear, threats of violence enjoy no protections under the First Amendment. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Virginia v. Black, 538 U.S. 343, 353, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).

Alabama courts have previously upheld the constitutionality of statutes prohibiting threatening acts, recognizing that threatening acts are unprotected by the First Amendment. "Whether the threat be against the life of a president, or to burn the house of an ordinary citizen, the protection of the First Amendment does not extend to such conduct." Works v. State, 57 Ala.App. 373, 375, 328 So.2d 624, 625-26 (Ala.Crim.App.1976) (emphasis supplied). Thus, Lansdell cannot threaten his neighbor with violence in order to intentionally or recklessly terrify his neighbor, and then successfully maintain that the State is prohibited from punishing his conduct based on the overbreadth doctrine. Because Lansdell's conduct is not constitutionally protected speech, his claim that § 13A-10-15 is overbroad must fail. See Hyshaw v. State, 893 So.2d at 1242.

Alternatively, Lansdell argues that § 13A-10-15 is unconstitutionally vague. As this Court noted in Vaughn v. State, 880 So.2d 1178 (Ala.Crim.App.2003):

"`"The doctrine of vagueness ... originates in the due process clause of the Fourteenth Amendment, see Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and is the basis for striking down legislation which contains insufficient warning of what conduct is unlawful, see United States v. National Dairy Products Corporation, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).

"`"Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1954). A vague statute does not...

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