State v. Cohen
| Decision Date | 15 February 1989 |
| Docket Number | No. 87-0290,87-0290 |
| Citation | 14 Fla. L. Weekly 446,545 So.2d 894 |
| Parties | 14 Fla. L. Weekly 446 STATE of Florida, Appellant, v. Louis COHEN, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, Mardi Levey Cohen and Marilyn Eisler, Asst. Attys. Gen., West Palm Beach, for appellant.
Lewis A. Fishman and Jane Fishman of Lewis A. Fishman, P.A., Fort Lauderdale, for appellee.
The state charged appellee, Louis Cohen, with three counts of witness tampering in violation of section 914.22(1)(a), Florida Statutes (1985). The information charged that appellee, a private investigator, unlawfully and knowingly engaged in misleading conduct with the intent to influence the testimony of two witnesses in an official proceeding pending in Broward County, Florida. Appellee filed a motion to dismiss the information, in which he challenged the constitutionality of sections 914.21 and 914.22, Florida Statutes (1985). The state appeals from the trial court's order granting appellee's motion to dismiss. We affirm.
In 1984, the Florida Legislature replaced the former witness tampering statute, section 918.14, Florida Statutes (1983), with section 914.22, Florida Statutes (1984). Section 914.22 contains the same provisions as those found in Federal Statute 18 U.S.C. § 1512 (1982) and both are entitled "Tampering with a Witness, Victim, or an Informant." Florida's Section 914.22 provides in pertinent part:
(1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct towards another person, or offers pecuniary benefit or gain to another person, with intent to:
(a) Influence the testimony of any person in an official proceeding; or....
....
(3) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully.
(Emphasis added).
Section 914.21 defines misleading conduct:
(2) "Misleading conduct" means:
(a) Knowingly making a false statement;
(b) Intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact and thereby creating a false impression by such statement;
(c) With intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;
(d) With intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or
(e) Knowingly using a trick, scheme, or device with intent to mislead.
The trial court concluded:
2. Neither Florida Statute 914.21 nor Florida Statute 914.22 defines the phrase "influence the testimony of any person". Specifically, the statute leaves ambiguous whether it is criminal to influence to testify falsely, or truthfully, or both. The only assistance seems to appear in Florida Statute 914.22(3) which states that if the defendant's intent was to influence to testify truthfully then he has the burden of proof to establish this fact which is an affirmative defense. Subsection three (3) unconstitutionally shifts the burden of proof from the State to the Defendant. By requiring the Defendant to prove his innocence, this section would relieve the State of its obligation to prove the Defendant's guilt, beyond a reasonable doubt, of every element of the crime. That result would deprive defendant of due process of law. In Re: Winship, 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368] (1970); Mullaney v. Wilbur, 421 U.S. 684 [95 S.Ct. 1881, 44 L.Ed.2d 508] (1975); Yohn v. State, 476 So.2d 123 (Fla.1985).
3. Florida Statute 914.22(1)(a), to the extent that it attempts to criminalize innocent speech and conduct as in the present case, is unconstitutionally overbroad and vague. This section criminalizes innocent conduct as well as unlawful conduct and therefore denies Defendant of due process of law.
4. For the reasons stated ..., this Court finds that Florida Statute 914.22(1)(a) and (3) are unconstitutional as applied in this case.
Appellee contends the statute as applied to him is unconstitutionally vague and overbroad because it fails to inform him of what conduct it prohibits and requires persons of reasonable intelligence to guess at its scope and meaning. Appellee further contends that a literal interpretation of section 914.22(1)(a) could result in an interpretation that would criminalize otherwise proper and innocent conduct such as an attorney or an investigator testing a witness's recollection of the facts, or advising a witness that other witnesses have given statements inconsistent with his, or telling a co-defendant that his co-defendant has given a statement. The state argues that the statute, when read as a whole, is not vague or overbroad, since a logical interpretation would compel the conclusion that it proscribes influencing a witness to testify falsely.
The law is well established that a statute which forbids an act in terms so vague that anyone of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. State v. Gray, 435 So.2d 816 (Fla.1983); Zerweck v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982). In Deehl v. Knox, 414 So.2d 1089 (Fla. 3d DCA 1982), the district court considered a challenge to the constitutionality of the former witness tampering statute, section 918.14. The court pointed out:
It is axiomatic that courts are required to interpret a statutory provision--if consistent with the ultimate polestar of the issue, the legislative intent--so as to render it immune from claims of unconstitutionality, White v. State, 330 So.2d 3 (Fla.1976), including one of overbreadth. ... Here, as in many other instances, that requirement may and therefore must be effectuated by giving the statute a limiting construction which requires that the act or words forbidden only in general terms be performed or uttered with criminal intent. (footnotes omitted).
Section 914.22 prohibits a broader scope of activity than that prohibited by its predecessor, section 918.14.
The parties have not cited nor have we, as a result of our independent research, found any Florida cases which have considered the constitutionality of section 914.22. However, several federal court decisions have addressed some of the constitutional questions raised by the Federal Witness Tampering Statute. In U.S. v. Kalevas, 622 F.Supp. 1523, 1527 (D.C.N.Y.1985), the court rejected an argument that section 1512 was constitutionally defective because it did not contain a mens rea requirement. The court stated
Prior to its amendment in 1982, section 1503 made it unlawful, among other things, to "intimidate" witnesses. Not only were convictions upheld under section 1503 on the basis of intimidation, but the statute withstood numerous constitutional challenges. The use of "intimidation" in section 1512 does not render the statute unconstitutionally vague. Similarly, Davenport's allegation that section 1512's use of "misleading conduct" is insufficient to place a defendant on notice as to what conduct is prohibited, ignores the detailed definition of "misleading conduct" set forth in 18 U.S.C. § 1515(3). In fact, the statute defines misleading conduct as knowing or intentional conduct, and does so in a manner which adequately apprises a person of the prohibited conduct. (footnotes omitted).
Section 914.21, Florida Statutes (1984) defines "misleading conduct" in the same terms as 18 U.S.C. § 1515(3).
The state also contends the phrase, "[i]nfluence the testimony of any person in an official proceeding," when read in conjunction with section 914.22(3), narrows the application of the statute so as to overcome the argument that the statute is overbroad and therefore constitutionally infirm. This argument has merit provided section 914.22(3) does not amount to an unconstitutional shifting of the burden of proof to the defendant.
In the trial court, the state, while maintaining the constitutionality of the statute, conceded:
The burden of proof "by a preponderance of the evidence" is conceded by the state to be a constitutionally impermissible shifting of the burden of proof from the state to the defendant. The state believes that the trial court can excise the words "...as to which defendant has the burden of proof by a preponderance of the evidence, ..." and uphold as constitutional the remainder of subsection 3 without improperly invading the legislative function.
On appeal, the state argues that subsection three does not offend constitutional principles since the state, in order to prevail, must prove the defendant's guilt beyond a reasonable doubt.
The Supreme Court in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), discussed the history of the reasonable doubt standard. The court held:
[T]hat the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Supreme Court considered the state's burden of proof as it applied to an "affirmative defense." The laws of Maine required Mullaney to prove by a "fair preponderance of the evidence" that he acted in the heat of passion on sudden provocation in order to reduce a charge of murder to manslaughter. The Supreme Court overturned the law, reasoning:
In this respect, proving that the defendant did not act in the heat of passion on sudden provocation...
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