State v. John W.

• Decision Date: 25 August 1980
• Citation: 418 A.2d 1097,14 A.L.R.4th 1238
• Parties: STATE of Maine v. JOHN W.
• Court: Maine Supreme Court

Page 1097

418 A.2d 1097

14 A.L.R.4th 1238

STATE of Maine v. JOHN W.

Supreme Judicial Court of Maine.

Argued April 28, 1980.

Decided Aug. 25, 1980.

G. Arthur Brennan, Dist. Atty., Joseph A. Wannemacher (orally), Asst. Dist. Atty., Alfred, for plaintiff.

Zbigniew J. Kurlanski, Portland (orally), for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN and ROBERTS, JJ.

ROBERTS, Justice.

John W. was adjudged to have committed the juvenile crime of Disorderly Conduct, 17-A M.R.S.A. § 501(2), arising out of his verbal abuse of a police officer. On appeal to the Superior Court under 15 M.R.S.A. §§ 3401-3405, the adjudication and disposition were affirmed. John W. filed a timely appeal to the Law Court under 15 M.R.S.A. § 3407. We reverse the judgment of the Superior Court and remand for entry of an order of dismissal pursuant to 15 M.R.S.A. § 3310(4).

John W.'s appeal attacks the sufficiency of the juvenile petition, challenges the sufficiency of the evidence and complains of the denial of a dispositional hearing. We find the petition barely sufficient. We agree that the sentencing procedure was deficient and, in fact, the sentence imposed was unlawful. More significantly, we hold that the evidence of verbal abuse of a police officer was insufficient to support the court's adjudication of guilt beyond a reasonable doubt. 15 M.R.S.A. § 3310(5)(A); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

I. Sufficiency of the Petition

Prior to hearing in the juvenile court, John W. moved to dismiss the petition and the state moved to amend. The amendment did not allege any additional or different offense. The court denied the motion to dismiss and, over the objection of the juvenile, granted the motion to amend. No objection was addressed specifically to the absence of an oath as to the amendment. ¹ Since the record does not disclose a "substantial surprise or prejudice" requiring a continuance under Section 3310(2)(B)(2), we find no abuse of discretion. The petition, as amended, was minimally sufficient under the standards of State v. Creamer, Me., 379 A.2d 996 (1977), although the conduct proven did not exactly conform thereto.

II. Denial of Dispositional Hearing

Our interest in the rights of juvenile offenders compels us to point out that the disposition in this case violated the juvenile's rights in two respects. 15 M.R.S.A. § 3312(1) requires that the juvenile court "after making an order of adjudication . . . hear evidence on the question of the proper disposition best serving the interests of the juvenile and the public." While it is true that the preparation of a social study and written report on the juvenile adjudicated may be waived by the court, it is mandatory that the court conduct a dispositional hearing. Such a hearing need not be delayed beyond the day of adjudication nor need it necessarily be very extensive. At least one indispensable element of such a hearing is the right of the juvenile to be heard concerning the proper disposition. In this instance the court immediately imposed sentence after adjudication and when requested by defense counsel to hold a dispositional hearing, merely repeated the prior order of disposition. In addition, the 24-hour sentence to the county jail does not conform to the requirements of the Juvenile Code. 15 M.R.S.A. § 3314(1)(H) permits a period of confinement in the county jail only in conjunction with a suspended sentence to the Maine Youth Center.

III. Sufficiency of the Evidence

We have not previously been called upon to interpret 17-A M.R.S.A. § 501(2) except with reference to the sufficiency of the complaint thereunder. See State v. Creamer, supra. We have, however, in Creamer and other cases, adduced certain general principles which we now apply in determining the meaning of 17-A M.R.S.A. § 501(2).

When possible, we interpret enactments of the Legislature contained in the criminal code so as to uphold their constitutionality. We must presume that such legislation purports to operate within the limitations of our state and federal constitutions. Both article I, § 4 of the Maine Constitution and the first amendment of the United States Constitution protect the people against governmental encroachment on their freedom of speech. The Maine Constitution is no less restrictive than the Federal Constitution. Opinion of the Justices, Me., 306 A.2d 18, 21 (1973). Our fundamental interest in free speech "demands the existence of a compelling governmental interest to justify legislative restrictions upon it." Id. at 21. Such a compelling governmental interest has been found to exist in the prohibition of libel, e. g., Beauharnais v. Illinois, 343 U.S. 250, 255-257, 72 S.Ct. 725, 729-731, 96 L.Ed. 919 (1952), obscenity, e. g., Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), or fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); State v. Drake, Me., 325 A.2d 52, 55 (1974). "(Words) which by their very utterance inflict injury or tend to incite an immediate breach of the peace" do not enjoy constitutional protection. State v. Hotham, Me., 307 A.2d 185, 186 (1973), quoting Chaplinsky v. New Hampshire, 315 U.S. at 572, 62 S.Ct. at 769 (1942).

Although conduct other than speech was described in the amended petition, the evidence viewed in the light most favorable to the state was insufficient to give that conduct any significance under section 501(2). At no time has the state suggested that the words here involved fell within the area of obscenity. ² As applied to speech, section 501(2) represents the legislative definition of conduct coming within the fighting-words area of unprotected speech. The prosecution herein was similarly aimed at such conduct.

A narrow judicial interpretation of criminal statutes affecting speech is necessary in order to insure that they prohibit only speech which is not constitutionally protected. State v. Sondergaard, Me., 316 A.2d 367, 369 (1974); see also, Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408 (1972), and Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), both cited in Hotham, 307 A.2d at 186-187. As we said in State v. White, Me., 280 A.2d 810, 812 (1971): "The importance of this requirement becomes apparent when we consider that many forms of conduct and language, although distasteful to certain individuals or even a majority of people, are nevertheless afforded constitutional protection." Accord, Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973). When dealing with fighting words there is a legitimate governmental interest in preventing words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace," but language which is merely distasteful cannot be punished. ³ Application of a criminal statue must be restricted "to a kind of speech that produces or is likely to produce a clear and present danger of substantive evils that Maine constitutionally may seek to prevent." State v. Porter, Me., 384 A.2d 429, 432 (1978). See also, F.C.C. v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919).

Although there has been some criticism of the words "clear and present danger," the Supreme Court has continued to use them. ⁴ E. g., F.C.C. v. Pacifica Foundation, 438 U.S. at 745, 98 S.Ct. at 3038 (quoting Justice Holmes' opinion in Schenck v. United States, supra); see generally Annot., "Supreme Court's Development of the Clear and Present Danger Rule," 38 L.Ed.2d 835 (1974). Justice Frankfurter, concurring in Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946) wrote:

"Clear and present danger" was never used by Mr. Justice Holmes to express a technical legal doctrine or to convey a formula for adjudicating cases. It was a literary phrase not to be distorted by being taken from its context. In its setting it served to indicate the importance of freedom of speech to a free society, but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution.

328 U.S. at 353, 66 S.Ct. at 1040, cited with approval in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 842, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1 (1978). In Landmark the Court, although questioning the relevance of the test to that case, said:

Properly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State's interests should also be weighed.

433 U.S. at 843, 98 S.Ct. at 1543.

In the disorderly conduct context, the Supreme Court has never repudiated the use of the words clear and present danger. In Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), the Court held that a conviction under a disorderly conduct ordinance was unconstitutional because there was no showing that the speech made by the defendant was likely to produce a clear and present danger of substantive evil. The Court affirmed a disorderly conduct conviction in Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 (1951), based on a finding that there was a clear and present danger of disorder. Following the approach of these decisions, the constitutionality of a conviction under a Maine statute must be tested according to the balancing process described in Landmark Communications, Inc., supra, in the passage quoted above.

With these general...