State v. Lombardo

• Decision Date: 03 November 2000
• Docket Number: No. 38S00-9902-CR-111.,38S00-9902-CR-111.
• Citation: 738 N.E.2d 653
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. John LOMBARDO, Appellee (Defendant below).
• Court: Indiana Supreme Court

738 N.E.2d 653

STATE of Indiana, Appellant (Plaintiff below), v. John LOMBARDO, Appellee (Defendant below).

No. 38S00-9902-CR-111.

Supreme Court of Indiana.

November 3, 2000.

Jeffrey A. Modisett, Attorney General of Indiana, Greg Ullrich, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellant.

Robert G. Forbes, Forcum & Forbes LLP, Hartford City, Indiana, Attorney for Appellee.

SULLIVAN, Justice.

Defendant John Lombardo was charged with the unlawful interception of a telephonic communication for secretly tape recording his estranged wife's telephone conversations. The trial court dismissed the charge, finding the Indiana Wiretap Act was unconstitutionally vague because it did not clearly define the conduct prohibited. We hold that Indiana's Wiretap Act is constitutional and that there is no constitutional bar to its application in this case.

Background

Both federal and state statutes prohibit the use of wiretapping and electronic surveillance except in certain circumstances. See 18 U.S.C. §§ 2511-2519 (1988) ("Federal Wiretap Act"); Ind.Code §§ 35-33.5-1-1 through 35-33.5-5-6 (1993) ("Indiana Wiretap Act."). This case arises under the Indiana Wiretap Act but requires reference to the Federal Wiretap Act as well.¹

On January 16, 1998, the State filed an amended information charging John Lombardo with the unlawful interception of a telephonic communication, a Class C felony, under Indiana Code § 35-33.5-5-5. The State alleged that between October 1996, and March 1997, Lombardo had placed a recording device at the home of his estranged wife, Connie, to intercept and record telephone conversations between her and a third person without the consent of either party. Connie apparently had found a hidden tape recorder wired to the telephones in the home and also heard Lombardo state that he had several tapes of conversations between her and third parties.

On March 2, 1998, Lombardo filed a motion to dismiss the amended information, advancing several arguments but primarily claiming that the Indiana Wiretap Act did not adequately forewarn the conduct prohibited. On December 30, 1998, the trial court granted Lombardo's motion to dismiss the charge, finding the Indiana Wiretap Act unconstitutionally vague on its face and as applied in this case. The State appeals these rulings. This Court has exclusive jurisdiction over this case pursuant to Indiana Appellate Rule 4(A)(8).²

Discussion

In charging Lombardo with the unlawful interception of a telephonic communication, the State acted pursuant to these provisions of the Indiana Wiretap Act:

(a) This section does not apply to a person who makes an interception authorized under federal law.

(b) A person who knowingly or intentionally intercepts, a communication in violation of this article commits unlawful interception, a Class C felony.

(c) A person who, by virtue of the person's employment or official capacity in the criminal justice system, knowingly or intentionally uses or discloses the contents of an interception in violation of this article commits unlawful use or disclosure of an interception, a Class C felony.

Ind.Code § 35-33.5-5-5 (1993) (emphases added). The statute defines the "interception" of a wire or electronic communication as follows:

"Interception" means the intentional:

(1) recording of; or

(2) acquisition of the contents of;

a telephonic or telegraphic communication by a person other than a sender or receiver of that communication, without the consent of the sender or receiver, by means of any instrument, device, or equipment under this article. This term includes the intentional recording of communication through the use of a computer or a FAX (facsimile transmission) machine.

Id. § 35-33.5-1-5 (emphasis added).

Lombardo contends, and the trial court agreed, that this statutory scheme is unconstitutionally vague in several respects in that "a person of ordinary intelligence is unable to determine the conduct prohibited." Appellee's Br. at 3; see also Order of Dismissal at 1 ("[T]he Statute IC 35-33.5-1-1 through IC 35-33.5-5-6 as written [is] unconstitutionally vague, because the statute doesn't clearly define what conduct is prohibited and is not understandable by a person of ordinary intelligence.") (R. at 136.)³

When the validity of a statute is challenged, we begin with a " `presumption of constitutionality.'" State v. Downey, 476 N.E.2d 121, 122 (Ind.1985) (quoting Sidle v. Majors, 264 Ind. 206, 209, 341 N.E.2d 763, 766 (1976)) (upholding the constitutionality of Indiana's dependant neglect statute under a void for vagueness challenge), reh'g denied. The burden to rebut this presumption is upon the challenger, and all reasonable doubts must be resolved in favor of the statute's constitutionality. See id. A statute will not be found unconstitutionally vague if individuals of ordinary intelligence would comprehend it adequately to inform them of the proscribed conduct. See id. The statute "need only inform the individual of the generally proscribed conduct, [and] need not list with itemized exactitude each item of conduct prohibited." Id. Finally, "`it is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand.'" Davis v. State, 476 N.E.2d 127, 130 (Ind.Ct.App. 1985) (quoting United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975)), transfer denied.

I

Lombardo first contends that the Act is impermissibly vague because the statutory scheme under which he was charged is "contradictory as to the degree of culpability required." Appellee's Br. at 4.

We acknowledge that the Act is internally inconsistent: The highest degree of culpability—"intentional"—is used to define an "interception" under Indiana Code § 35-33.5-1-5, while a lesser degree of culpability—"knowingly or intentionally"—is included in defining the statutory crime under Indiana Code § 35-33.5-5-5. Nevertheless, " `[w]hen a statute can be construed to support its constitutionality, such construction must be adopted.'" In re Tina T., 579 N.E.2d 48, 56 (Ind.1991) (quoting Miller v. State, 517 N.E.2d 64, 71 (Ind.1987)).

Here, Lombardo does not claim that he acted with the lesser culpability of "knowingly";⁴ instead, he broadly claims that "a person of ordinary intelligence [cannot] be said to have been given fair notice" as to what degree of culpability is required. Appellee's Br. at 5. We disagree and find that a person of ordinary intelligence would know, under any reasonable interpretation, that the act of wiring a tape recorder under a house to record secretly another's conversations is an "intentional" act clearly prohibited under the Act's current statutory scheme.

That being said, we accept the State's suggestion⁵ to construe strictly the Indiana Wiretap Act in future cases to eliminate the lesser culpability of "knowingly," so that in charging and prosecuting individuals under Indiana Code § 35-33.5-5-5(b), the State will henceforth be required to prove intentional conduct. Cf. State v. McGraw, 480 N.E.2d 552, 553 (Ind.1985)

(providing that penal statutes must be strictly construed against the State).

II

Lombardo next contends that the Act is unconstitutionally vague because it "do[es] not outlaw all recordings but only those recordings accomplished by means of certain instruments, devices or equipment which are supposed to be, but never are, delineated except for two ... machines which do not apply in this instance." Appellee's Br. at 2.

For ease of review, we again reproduce the statutory definition of "interception:"

"Interception" means the intentional:

(1) recording of; or

(2) acquisition of the contents of;

a telephonic or telegraphic communication by a person other than a sender or receiver of that communication, without the consent of the sender or receiver, by means of any instrument, device, or equipment under this article. This term includes the intentional recording of communication through the use of a computer or a FAX (facsimile transmission) machine.

Ind.Code § 35-33.5-1-5 (1993) (emphases added).

Lombardo claims that a literal reading of the statute allows for someone lawfully to "intercept" a communication with a tape recorder because the Act only prohibits recordings obtained "by means of any instrument, device or equipment under this article," Ind.Code 35-33.5-1-5 (emphases added), and the only two devices listed in the article are "a computer or a FAX," id.

A more reasoned interpretation is that the phrase "under this article" limits the definition of "interception" to an application under Indiana's Wiretap Act, as opposed to, say, an application under Title 6 of Indiana Code on taxation where the term "interception" is used in a similar context. See Ind.Code 6-8.1-3-2.2(c) (1990) ("As used in this section, `surveillance' means the monitoring of a person, place, or event by: (1) electronic interception; (2) overt or covert observations; (3) photography; or (4) the use of informants.") (emphasis added). Therefore, we adopt this logical construction and hold that an interception under the Act can be accomplished "by means of any instrument, device, or equipment."

We also find that an individual of ordinary intelligence—without the benefit of this analysis—could easily comprehend the Act to include a tape recorder, which is the most common device used to intercept telephonic communications.

III

Lombardo lastly contends that the Act is unconstitutionally vague because it "incorporate[s] federal law as an exception but the federal law is so unclear on the issue of an exception for the marital residence that it makes the state law too vague." Appellee's Br. at 2.

His argument is essentially this: First, the Indiana Wiretap Act incorporates federal wiretap law.⁶ Second, federal wiretap law includes case law and the federal circuits are split on whether the Federal Wiretap Act outlaws...