People v. Taravella

• Decision Date: 07 June 1984
• Docket Number: Docket No. 72567
• Citation: 133 Mich.App. 515,350 N.W.2d 780
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Angelo TARAVELLA, Defendant-Appellant. 133 Mich.App. 515, 350 N.W.2d 780
• Court: Court of Appeal of Michigan — District of US

Page 780

350 N.W.2d 780

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Angelo TARAVELLA, Defendant-Appellant.

Docket No. 72567.

133 Mich.App. 515, 350 N.W.2d 780

Court of Appeals of Michigan.

Submitted Feb. 15, 1984.

Decided April 2, 1984.

Rehearing Denied May 14, 1984.

Released for Publication June 7, 1984.

[133 MICHAPP 516] Frank J. Kelly, Atty. Gen., Louis J. Caruso, Sol. Gen., George N. Parris, Pros. Atty., Don L. Milbourn, Chief Appellate [133 MICHAPP 517] Lawyer, Asst. Pros. Atty., and Robert John Berlin, Asst. Pros. Atty., for the people.

Kevin R. Armstrong, Sterling Heights, for defendant-appellant.

Before ALLEN, P.J., and V.J. BRENNAN and KAUFMAN, ^* JJ.

ALLEN, Presiding Judge.

We are asked to determine whether the Michigan statute proscribing the malicious use of telephone and telegraph services, M.C.L. Sec. 750.540e; M.S.A. Sec. 28.808(5), is unconstitutionally overbroad and vague. The question presented is of first impression and comes to us on the following facts.

On September 8, 1980, defendant was charged in the 37th District Court with unlawfully making obscene or harassing telephone calls, contrary to M.C.L. Sec. 750.540e; M.S.A. Sec. 28.808(5). Prior to trial, defendant brought a motion to quash, challenging the statute as unconstitutionally vague and overbroad. On February 19, 1981, the motion was denied. Following a bench trial, defendant was convicted and sentenced. He appealed to the circuit court, raising as the sole issue the constitutionality of the statute under which he was convicted. By order dated May 19, 1982, defendant's conviction was affirmed, the circuit court finding the statute constitutionally sound. Defendant's application for leave to appeal to this Court was denied on August 6, 1982. However, on June 30, 1983, in lieu of granting leave to appeal, the Supreme Court remanded to this Court for consideration as on leave granted. 417 Mich. 1046 (1983).

The statute under which defendant was prosecuted[133 MICHAPP 518] ¹ added a new section (540e) to laws regulating the use of communication systems. 1969 P.A. 328, effective March 20, 1970. Section 540e provides:

"(1) Any person is guilty of a misdemeanor who maliciously uses any service provided by a communications common carrier with intent to terrorize, frighten, intimidate, threaten, harass, molest or annoy any other person, or to disturb the peace and quiet of any other person by any of the following:

"(a) Threatening physical harm or damage to any person or property in the course of a telephone conversation.

"(b) Falsely and deliberately reporting by telephone or telegraph message that any person has been injured, has suddenly taken ill, has suffered death, or has been the victim of a crime, or of an accident.

"(c) Deliberately refusing or failing to disengage a connection between a telephone and another telephone or between a telephone and other equipment provided for the transmission of messages by telephone, thereby interfering with any communications service.

"(d) Using any vulgar, indecent, obscene or offensive language or suggesting any lewd or lascivious act in the course of a telephone conversation.

"(2) Any person violating this section may be imprisoned for not more than 6 months, or fined not more than $500.00, or by both. An offense shall be committed under this section if the message either originates or terminates or both originates and terminates in this state and may be prosecuted at the place of origination or termination."

Defendant argues that the statute violates the state and federal constitutions in two respects: first, that the statute is overbroad in that it encompasses[133 MICHAPP 519] constitutionally protected speech and conduct within its scope and, second, that the statutory language utilized to describe the proscribed speech is vague and therefore fails to give fair notice of the proscribed activity. This challenge to the state proscribing the malicious use of services provided by a communications common carrier represents a question of first impression in this state.

Constitutional guarantees of free speech set limits upon the extent to which states may punish or criminalize the use of words or language. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In keeping with that principle and in order to promote the free exchange of ideas and information, a state statute which regulates speech and expression must be narrowly drawn so as not to infringe on constitutionally protected speech. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). The extent to which a state may regulate such expression is "dependent upon a showing that substantial privacy interests [of others] are being invaded in an essentially intolerable manner". Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971). Thus, the privacy interest of a listener in the privacy of his home will be accorded greater protection, along with the commensurate restrictions on unwanted discourse, than would be permitted in a public forum. Cohen, supra; Rowan v. United States Post Office Dep't, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970).

Does the statute impermissibly include constitutionally protected speech and conduct within its proscriptions? When faced with an overbreadth challenge to a statute which regulates in the area [133 MICHAPP 520] of the First Amendment, it is important for the reviewing court to look to the statute to determine whether it regulates only spoken words, rights of association or communicative conduct. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The quantum of interference which will be sustained in the area of free speech and expression depends to an extent on the type of behavior sought to be regulated by the statute. As noted in Broadrick, supra, p. 615, 93 S.Ct. p. 2917:

"But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech' toward conduct and that conduct--even if expressive--falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect--at best a prediction--cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 US 165, 174-175; [89 S.Ct. 961, 966-967, 22 L.Ed.2d 176] (1969). To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep."

While Michigan's misuse of communications service statute does involve a speech component, we believe that the statute clearly establishes sanctions for conduct, as opposed to pure speech. The terms of the statute are not directed at the restriction[133 MICHAPP 521] of the communication of thoughts or ideas but are aimed at the regulation of specific conduct: the malicious use of communicative services. Thus, we will not invalidate this conduct-oriented criminal statute unless the overbreadth is not only real, but substantial as well.

Do telephone calls by an angry parent to a student with failing grades, by a dissatisfied consumer or by a disgruntled constituent, if accompanied by language thought to be "offensive" by the recipient of the call, subject the caller to criminal sanctions under the statute? In each case, defendant claims, the caller's exercise of his constitutional right of free speech might "annoy", "frighten" or be considered "obscene" or "harassing" by the listener. Thus, under defendant's interpretation of the statute, it is the listener's perception or characterization of the nature of the call which would control. We disagree. The statute clearly provides that the focus is on the caller; it is the malicious intent with which the transmission is made that establishes the criminality of the conduct. See, e.g., Constantino v. State, 243 Ga. 595, 255 S.E.2d 710 (1979). Thus, irrespective of the listener's subjective perceptions, without the necessary intent on the part of the caller the use of obscene words alone would not fall within the statutory proscriptions.

Given the substantial interest of the state in protecting the privacy of its citizens from unwanted intrusions and the limiting requirements of the statute that the caller must maliciously use a communications service with the requisite intent, we perceive no real and substantial overbreadth problem. The statute is not substantially overbroad and to the extent that an overbreadth problem should arise, the appropriate remedy is to [133 MICHAPP 522] handle such cases on an individual basis to prevent any restriction on constitutionally protected speech rather than striking down in toto a statute prohibiting constitutionally unprotected conduct. Broadrick, supra.

In conjunction with his claim that the intent requirement cannot "save" the overbroad statute, defendant relies on Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; reh. den. 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973), and People v. Neumayer, 405 Mich. 341, 275 N.W.2d 230 (1979), to support his contention that the terms utilized in the statute, i.e., vulgar, obscene, lewd, are unconstitutionally vague. We find defendant's reliance on the cited cases to be...