Perkins v. Com., 1762-89-2

• Decision Date: 05 March 1991
• Docket Number: No. 1762-89-2,1762-89-2
• Citation: 402 S.E.2d 229,12 Va.App. 7
• Court: Virginia Court of Appeals
• Parties: Clinton Reginald PERKINS v. COMMONWEALTH of Virginia. Record

Page 229

402 S.E.2d 229

12 Va.App. 7

Clinton Reginald PERKINS v. COMMONWEALTH of Virginia.

Record No. 1762-89-2.

Court of Appeals of Virginia.

March 5, 1991.

Steven D. Benjamin, Richmond, for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Before KOONTZ, C.J., and BENTON and COLE, JJ.

COLE, Judge.

In a jury trial on March 20, 1989, the defendant, Clinton Reginald Perkins, was convicted of threatening to burn the dwelling house of Bruce Overton in violation of Code § 18.2-83. On May 18, 1989, the defendant was convicted by the court on two misdemeanor charges of using obscene, vulgar, profane, lewd, lascivious, or indecent language or threatening an illegal or immoral act with the intent to coerce, intimidate or harass over the telephone in violation of Code § 18.2-427. On appeal, the defendant asserts that: (1) Code §§ 18.2-427 and 18.2-83 are unconstitutionally overbroad; (2) Code §§ 18.2-427 and 18.2-83 are unconstitutionally vague; and (3) the trial court erred in permitting evidence of statements and other misconduct by the defendant which were inflammatory and irrelevant.

On November 4, 1988, Bruce Overton was working as a pharmacist at the Bellevue Pharmacy in Richmond. The defendant entered the pharmacy and ordered food from the fountain. While the food was being prepared, the defendant wandered throughout the store. The defendant left the store, but soon returned and bought a beer. He left again only to return. The defendant asked a store clerk for change for a one hundred dollar bill. The clerk asked Overton for approval. Overton refused because the pharmacy was low on petty cash. The defendant then asked for change for a fifty dollar bill. Overton explained that he would not give change unless the defendant made a substantial purchase. The defendant responded, "Okay, Jew, what do you want me to buy?" Overton told the defendant to get out of the store. The defendant warned Overton that he did not know who he was "messing with." The defendant left as Overton called 911. Officer James S. Moore responded to the call. Based on Overton's description, Officer Moore suggested that the man in the store had been the defendant.

Shortly after the police officer left, the defendant called the pharmacy and spoke to Overton. The defendant said:

Don't you know they can't do anything with me? How many officers came? Don't you know I'm the top white nigger of Bellevue Avenue.... I'm known around there. I run things. The police are scared of me and the Courts can't keep me in jail.

Overton asked the defendant if he was Clinton Perkins. The defendant replied:

No, this isn't Clinton Perkins. Clinton Perkins is too damn smart for you. I wish I was Clinton Perkins because if I was Clinton Perkins I would take a shotgun and blow your fucking head off.

These comments frightened Overton who sent an employee to find Officer Moore. Officer Moore returned to the store, picked up the phone and recognized the defendant's voice.

The following Sunday, November 6, 1988, the defendant called Overton at work. The defendant asked if Overton had been to church that day and said his prayers. When Overton replied that he had not, the defendant responded, "I figured that. No Communist nigger lovin' bastard would see the inside of a church anyhow." The defendant said, "I bet you wish you had given me that change for that hundred dollars like I asked you the other night." The defendant added, "the next time I come in you better do what I tell you." The defendant then threatened to find out where Overton lived, rape his wife, "kill her, kill you and then burn your fucking house down."

A preliminary issue is the standing of the defendant to make a vagueness and overbreadth challenge to the statutes. The defendant alleges that the statutes are facially invalid. Such a challenge is a claim that the law is "invalid in toto--and therefore incapable of any valid application." Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 1223, 39 L.Ed.2d 505 (1974). Generally, a defendant may challenge the constitutionality of a law only as it is applied to him or her. Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941). An exception to this rule exists in the case of first amendment challenges. "The First Amendment doctrine of ... overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others." Massachusetts v. Oakes, 491 U.S. 576, 109 S.Ct. 2633, 2637, 105 L.Ed.2d 493 (1989); see also Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915-16, 37 L.Ed.2d 830 (1973). The rationale for this exception is that an overly broad statute may serve to chill protected speech. Bates v. State Bar of Arizona, 433 U.S. 350, 380, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810 (1977).

Similarly, in Coleman v. City of Richmond, 5 Va.App. 459, 463, 364 S.E.2d 239, 242, reh'g denied, 6 Va.App. 296, 368 S.E.2d 298 (1988) this Court allowed a facial attack on the ground of vagueness even though the litigant's own speech was unprotected, relying on Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). See also Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965 n. 13, 104 S.Ct. 2839, 2851 n. 13, 81 L.Ed.2d 786 (1984) (recognizing facial challenges although the litigant's conduct may be proscribed). The Commonwealth asserts that an allegation that a statute is unconstitutionally vague cannot be made by one engaged in conduct "clearly proscribed" by the statute. See Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974); The Village of Hoffman Estates v. Flipside, 455 U.S. at 489, 495 n. 7, 102 S.Ct. 1186, 1191 n. 7, 71 L.Ed.2d 362 (1982). This same argument was made in Kolender, 461 U.S. at 369-71, 103 S.Ct. at 1864-66 (White, J., dissenting), but it was rejected by the majority, which stated, "we have traditionally viewed vagueness and overbreadth as logically related and similar doctrines." Id. at 358 n. 8, 103 S.Ct. at 1858 n. 8. The Court also distinguished Parker on the ground that the Court "deliberately applied a less stringent vagueness analysis '[b]ecause of the factors differentiating military society from civilian society,' " and distinguished The Village of Hoffman Estates because it concerned "business behavior" which "is subject to a less strict vagueness test." 461 U.S. at 358-59 n. 8, 103 S.Ct. at 1859 n. 8. Therefore, the defendant has standing to challenge Code §§ 18.2-427 and 18.2-83 on overbreadth and vagueness grounds.

An ordinance is overbroad if it deters constitutionally protected conduct. A challenge of overbreadth is based on the ground that legislation, even if "lacking neither clarity nor precision, ... offends the constitutional principle that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' " Zwickler v. Koota, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967); see generally Annotation, Supreme Court's Views as to Overbreadth of Legislation in Connection with First Amendment Rights, 45 L.Ed.2d 725 (1976). The overbreadth doctrine has been described as "strong medicine" and, where conduct and not merely speech is involved, as not voiding a statute unless it is substantially overbroad in relation to the statute's plainly legitimate sweep. Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916; see also City of Houston, Texas v. Hill, 482 U.S. 451, 107 S.Ct. 2502, at 2508, 96 L.Ed.2d 398 (1987); New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982). "It has been employed by the Court sparingly and only as a last result." Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916.

Code § 18.2-427 provides:

If any person shall use obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone ... he shall be guilty of a Class 1 misdemeanor.

The defendant asserts that by using the terms "obscene," "vulgar," "profane," "lewd," "lascivious" and "indecent" in the disjunctive the statute reaches constitutionally protected speech. The defendant relies on Walker v. Dillard, 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906, 96 S.Ct. 208, 46 L.Ed.2d 136 (1975) which found the predecessor of Code § 18.2-427 to be facially overbroad. ¹ In Walker, the Court stated: "[N]early every operative word of the statute is susceptible of an overbroad construction, and several have been stricken at one time or another for indefiniteness." Id. at 5. The defendant also asserts that the statute is defective because it does not require an unwilling listener and thereby "criminalizes telling an 'off-color' joke to a willing listener or forbids a sexually oriented conversation between lovers." State v. Keaton, 371 So.2d 86, 90 (Fla.1979).

In addressing a facial overbreadth challenge, the first task is to ascertain whether the statute reaches constitutionally protected speech. Houston, 107 S.Ct. at 2508. In so doing, we consider the actual text of the statute as well as any limiting construction that may be placed on the statute. See Kolender, 461 U.S. at 355, 103 S.Ct. at 1857. "Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute." Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916. "[A] state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts." Erznoznik v. Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975). "Courts routinely construe statutes so as to avoid ...