State v. Levitt

Decision Date01 April 1977
Docket NumberNo. 76-72-C,76-72-C
PartiesSTATE v. George C. LEVITT. A.
CourtRhode Island Supreme Court
OPINION

JOSLIN, Justice.

This two-count indictment charges the defendant with an assault with a dangerous weapon, to wit, a pistol, and with committing an abominable and detestable crime against nature, to wit, fellatio. The Superior Court trial justice reduced the first count to simple assault at the close of the state's case and, after the jury found the defendant guilty on both counts, imposed a sentence of 10 years on the fellatio count and a deferred sentence on the other charge. The case is now here on the defendant's appeal which relates solely to the fellatio conviction.

At the trial the prosecution called as witnesses the victim, her husband and daughter, one of her coworkers, two detectives from the South Kingstown Police Department and a doctor who gave the victim emergency treatment. The substance of their collective testimony was as follows: One Edward McDermott tricked the victim into driving to and entering defendant's home; then, after McDermott's departure, defendant assaulted the victim, beat her severely, threatened her with a gun, tied her up and forced her to perform an act of fellatio upon him. At the close of the state's case, the defense moved for a continuance of 'a few days' to enable it to secure McDermott's attendance as a witness. When that motion was denied, defendant rested without introducing any evidence. Neither then nor following the rendition of the verdict did he challenge the sufficiency of the state's evidence by moving for either a judgment of acquittal or a new trial. 1

Vagueness

Initially, defendant attacks the controlling statute, G.L.1956 (1969 Reenactment) § 11-10-1, 2 on the ground that the general term 'abominable and detestable crime against nature' used therein fails to describe the forbidden acts explicitly. He argues that the statute is therefore so vague and uncertain as to violate the due process clause of the fourteenth amendment to the Federal Constitution. 3

It is, of course, a fundamental principle of due process that the state may not hold an individual '* * * 'criminally responsible for conduct which he could not reasonably understand to be proscribed. '' Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 244, 46 L.Ed.2d 185, 188 (1975), quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed 989, 996 (1954). A statute challenged on grounds of impermissible vagueness should not, however, be tested for constitutional specificity in a vacuum, but should instead be judged in light of its common law meaning, its statutory history and prior judicial interpretations of its particular terms. Wainwright v. Stone, 414 U.S. 21, 22-23, 94 S.Ct. 190, 192, 38 L.Ed.2d 179, 182 (1973); Commonwealth v. Balthazar, 366 Mass. 298, 300, 318 N.E.2d 478, 480 (1974).

In applying these interpretative standards to § 11-10-1, we need go no further than State v. Milne, 95 R.I. 315, 322, 187 A.2d 136, 140 (1962), appeal dismissed, 373 U.S. 542, 83 S.Ct. 1539, 10 L.Ed.2d 687 (1963), which held that fellatio falls within the statutory proscription. That judicial construction provided specificity to what otherwise might be considered an ambiguous criminal statute, fixed its meaning for subsequent cases, and placed fellatio in the statute as definitely as if the act had been so amended by the Legislature. Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840, 849 (1948). Thus, when defendant committed fellatio, he was on clear notice that his conduct was criminal under the statute as construed, Wainwright v. Stone, supra, 414 U.S. at 23, 94 S.Ct. at 192-93, 38 L.Ed.2d at 182, and he is now foreclosed from asserting a lack of fair warning as a defense to his prosecution for that crime. Rose v. Locke, supra, 423 U.S. at 51, 96 S.Ct. at 245, 46 L.Ed.2d at 189. As applied to him, therefore, the controlling statute satisfies the due process requirements of clarity and specificity. Accord, People v. Howell, 396 Mich. 16, 21-22, 238 N.W.2d 148, 150 (1976); State v. Lemire, 115 N.H. 526, 532-33, 345 A.2d 906, 911-12 (1975).

The cases relied on by defendant to support his view are clearly distinguishable. In neither State v. Sharpe, 1 Ohio App.2d 425, 30 Ohio Op.2d 432, 205 N.E.2d 113 (1965) ('unnatural sex act'), nor Harris v. State, 457 P.2d 638 (Alaska 1969) ('crime against nature'), was a prior judicial interpretation available to give the statute meaning under the principle of Wainwright v. Stone, supra. In Commonwealth v. Balthazar, supra, the court, far from striking down the statute, as defendant asserts in his brief, found that the prohibition against 'unnatural and lascivious acts(s),' although inapplicable to the private, consensual conduct of adults, was not unconstitutionally vague as applied to an accused who forced a woman to commit an act of fellatio. Id. 366 Mass. at 302, 318 N.E.2d at 481. And although the Florida court in Franklin v. State, 257 So.2d 21 (Fla.1971), held that its own prior interpretations were not sufficient to cure the vagueness of the statutory language ('abominable and detestable crime against nature'), the Supreme Court rejected that holding when it reviewed the Florida statute. Wainwright v. Stone, supra, 414 U.S. at 23-24, 94 S.Ct. at 193, 38 L.Ed.2d at 182. None of these cases gives us the slightest reason to conclude that § 11-10-1 is unconstitutionally vague as applied to the act of defendant Levitt in the present case.

Consent and the Right of Privacy

The defendant next argues that the governing statute, insofar as it purports to proscribe sexual acts committed in private by consenting adults, violates his constitutional right of privacy as explicated in recent Supreme Court decisions. 4 The defendant lacks standing to press this contention, however, because of the traditional rule that bars a person to whom a statute may be constitutionally applied from challenging that statute on the ground that it may conceivably be applied unconstitutionally to others in hypothetical situations not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 839 (1973); State v. Picillo, 105 R.I. 364, 369, 252 A.2d 191, 194 (1969). That principle applies in this case because, notwithstanding the positive, uncontradicted and unimpeached testimony that the act of fellatio in this case was nonconsensual, defendant is here urging the claim of a hypothetical consenting adult to an asserted constitutional protection. Consequently, even were we to hold § 11-10-1 unconstitutional as applied to consenting adults, defendant would take nothing; his conviction would still stand because it is predicated upon the undeniably constitutional application of the statute to a sexual act forced upon an unwilling victim. Cf. Commonwealth v. Balthazar, supra, 366 Mass. at 302, 318 N.E.2d at 481. This, therefore, is not a proper case for us to consider the constitutionality of § 11-10-1 as applied to the private sexual activities of consenting adults. See Commonwealth v. LaBella, 364 Mass. 550, 553-54, 306 N.E.2d 813, 815-16 (1974).

Jury Instructions

As a corollary to the foregoing contention, defendant also argues that the trial justice erred (1) in instructing the jury that '* * * all unnatural sexual copulation was to be made unlawful * * * without regard to whether somebody is willing or unwilling * * *'; and (2) in failing to instruct that consent, if found, would be a defense. Although both errors charged may in effect raise the same issue, the short answer to each is that defendant's counsel expressly stated at the conclusion of the instructions that he had no objection to the charge as given. The defendant is therefore precluded by both Super.R.Crim.P. 30 5 and prior decisional law from assigning as error any portion of the charge as given or any omission therefrom. State v. Crescenzo, 114 R.I. 242, 258, 332 A.2d 421, 430-31 (1975); State v. Card, 105 R.I. 753, 758, 255 A.2d 727, 731 (1969).

Incompetency of Counsel

The defendant next attacks the judgment of conviction on the ground that his retained trial counsel was so incompetent that he was deprived of his state and federal constitutional right to the effective assistance of an attorney. Although we consider this claim to be more properly cognizable in post-conviction proceedings, we have not always abided by that sentiment, and in the past we have occasionally entertained a claim of lack of effective counsel on direct review. State v. Ambrosino, 114 R.I. 99, 105-06, 329 A.2d 398, 401-02 (1974); State v. Desroches, 110 R.I. 497, 502-06, 293 A.2d 913, 916-18 (1972); State v. Correia, 106 R.I. 655, 664-66, 262 A.2d 619, 624-25 (1970). However, in neither the Desroches nor the Correia case did the defendant claim that his attorney was incompetent. Desroches apparently based his claim on the trial court's action in granting his motion to dismiss the public defender and permitting him to defend himself; Correia objected to the trial justice's refusal to permit withdrawal from the case by an attorney who, by reason of Correia's own lack of cooperation, was not fully prepared for trial. In those instances, then, the appeals were based on specific rulings by the trial justices that allegedly deprived the defendants of the effective assistance of counsel. Our action in reviewing those rulings was therefore consistent with the fundamental principle that only specific rulings of a trial justice are reviewable on direct appeal. State v. Ambrosino, supra, 114 R.I. at 104-05 & n.2, 329 A.2d at 401 & n.2; State v. Wright, 105 R.I. 556, 564-65, 253 A.2d 593, 597-98 (1969); State v. Franklin, 103 R.I. 715, 728, 241 A.2d 219, 227 (1...

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