State v. Hegge, 44552
| Decision Date | 02 February 1978 |
| Docket Number | No. 44552,44552 |
| Citation | 89 Wn.2d 584,574 P.2d 386 |
| Parties | The STATE of Washington, Appellant, v. Alvin HEGGE, Clayton Park and William James Fowler, Respondents. |
| Court | Washington Supreme Court |
Paul A. Klasen, Jr., Grant County Pros. Atty., Ken Jorgensen, Deputy Pros. Atty., Ephrata, for appellant.
Collins & Hansen, Nels Hansen, Ephrata, Evergreen Legal Services, Whatcom-San Juan Office, Jim Walsh, Bellingham, Norman R. McNulty, Spok. Legal Services, Spokane, for respondents.
This matter comes to this court on certification from the Court of Appeals, Division Three, pursuant to RCW 2.06.030(c).
Respondents (defendants) were originally charged with third-degree assault and thereafter charged with tampering with a witness to the alleged assault. Tampering with a witness was a felony under RCW 9.69.080. 1 The amended information was filed February 17, 1976, while RCW 9.69.080 was still in effect, and charged that the defendants:
wilfully, unlawfully and feloniously did attempt to prevent by cajolement, persuasion, threats and acts of force a person . . . from appearing before a court as a witness . . . said defendants . . . having intent thereby to obstruct the course of justice.
Defendants challenged this charge on the ground that RCW 9.69.080 is unconstitutional under the first and fourteenth amendments to the United States Constitution and article 1, sections 3 and 5 of the Constitution of the State of Washington. Their claim is that the statute is (1) so overbroad as to make protected speech a crime, and (2) so vague that a reasonable person cannot determine what is proscribed.
The trial court agreed with the defendants and dismissed the charge for the reason that RCW 9.69.080 is unconstitutionally broad and that "to comply with said constitutional provisions the statutes must be specific and concise, not vague." The terms "persuasion" and "otherwise" as used in the statute impelled the court to this view.
We have reviewed the evolution of the wording of the statute and the manner of its application, which we find limited from the very first case by reference to the clause "with intent to obstruct the course of justice." This review convinces us that the statute is neither overbroad nor vague, thus we reverse.
Tampering with a witness has been a statutory crime in this state since 1901. While the classification of the crime has been changed from time to time, the definition has remained essentially the same. In 1901 the statute read If any person shall wilfully and corruptly hinder, prevent, or endeavor to hinder, or prevent, any person from appearing before any court of justice as a witness, or from giving evidence, in any action or proceeding, with intent thereby to obstruct the course of justice, he shall be deemed guilty of the misdemeanor of tampering with a witness, and, upon conviction thereof, shall be punished by imprisonment in the county jail for any period not exceeding one year, or by fine not exceeding one thousand dollars, or both, in the discretion of the court.
In State v. Bringgold, 40 Wash. 12, 82 P. 132 (1905) decided under the above statute, this court in construing the statute for the first time said at page 21, 82 P. at page 136:
If the endeavor to prevent the person from appearing as a witness and giving evidence is done with intent to obstruct the course of justice, it matters little what form the endeavor takes. It may be by persuasion, advice, threats, or physical acts of intervention either constitutes the crime. So, if it were true that the appellant merely tried to persuade this witness not to appear, the evidence would be sufficient to warrant his conviction, as it appears clearly that the effort was made for the purpose of obstructing the course of justice.
(Italics ours.) The italics show that the language which the trial court finds vague in the current statute was taken directly from an opinion construing the old statute. The legislature simply sought to incorporate this court's Bringgold construction into the statute itself.
By the time State v. Wingard, 92 Wash. 219, 158 P. 725 (1916) came before the court, the statute had been accordingly amended as follows:
Every person who shall willfully prevent or attempt to prevent, by persuasion, threats or otherwise, any person from appearing before any court, or officer authorized to subpoena witnesses, as a witness in any action, proceeding or investigation, with intent thereby to obstruct the course of justice, shall be guilty of a gross misdemeanor.
(Italics ours.) Rem. & Bal.Code, § 2363.
In Wingard, there was testimony that defendant appeared at the rooms of witnesses, attempted to persuade them not to appear in obedience to subpoenas, and stated to them in substance that there was a good thing in it for them; that they would be well paid for it; that the subpoenas did not amount to anything; and that they would not be able to live in town afterwards if they appeared as witnesses. Such evidence, if believed by the jury, was held sufficient to convict under the statute.
In State v. Scherck, 9 Wash.App. 792, 794, 514 P.2d 1393, 1395 (1973), we find the statute had been amended to the form it was in until repealed. 2 In Scherck, the gravamen of the offense was once again the intent with which words were spoken. It was for the jury to determine what Scherck intended if, as the evidence indicated, he said, " ' "If you will refuse to appear as a witness in a trial . . . (involving Scherck's friend) the State will have no course but to drop the case." ' " When the witness stated he could not refuse to appear, Scherck observed that the witness had a nice house in a nice neighborhood and that " '(i)t would be a shame if anything happened to it' ", and further Scherck allegedly said that if the case came to trial it " 'would be very embarrassing' " for the witness. From the foregoing, the jury could find the requisite intent under the statute to obstruct the course of justice.
A plain reading of the various forms of the statute set forth above fails to impress us with the vagueness of any one of them. On the contrary, the meaning seems very clear. From the earliest case, State v. Bringgold, supra, it has been apparent that the court has construed the witness-tampering statute to proscribe any endeavor to prevent a person from appearing as a witness done with the intent to obstruct the course of justice. Any reasonable person would be capable of apprehending what was proscribed by the statute.
A defendant challenging a statute as denying him due process under the Fourteenth Amendment because of vagueness must test that alleged vagueness by matching the conduct with which he stands charged against the statute. If his conduct clearly fits within the proscriptions of the statute, he does not have standing to challenge the constitutionality of the statute based on vagueness in regard to some hypothetical conduct of some third party. Parker v. Levy, 417 U.S. 733, 755-56, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).
In this instance, defendants were charged with attempting by "threat and force" to prevent a witness from appearing in court. While we have nothing in the record to indicate the exact conduct which gave rise to the charges against defendants, it is unquestionable that they had fair notice by the terms of the statute that "threats and force" used against a witness to prevent him from appearing is punishable conduct. So defendants do not have standing even if this statute is one of the type adverted to in Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974):
(which) by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain.
The difficulty these defendants had in conforming their conduct to the requirements of the law was not due to any ambiguity there may be in the terms of the...
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