State v. O'Neill

• Decision Date: 30 May 1985
• Docket Number: No. 50372-9
• Citation: State v. O'Neill, 700 P.2d 711, 103 Wn.2d 853 (Wash. 1985)
• Parties: STATE of Washington, Respondent, v. Chong Sim O'NEILL; Kyong Suk Bennett aka Lee; Kwang Cha Chu; Son A. Fowler aka Yun; and Mal Nam Romans, Petitioners.
• Court: Washington Supreme Court

Page 853

103 Wn.2d 853

700 P.2d 711

STATE of Washington, Respondent, v.Chong Sim O'NEILL; Kyong Suk Bennett aka Lee; Kwang Cha Chu; Son A. Fowler aka Yun; and Mal Nam RomansPetitioners.

No. 50372-9.

Supreme Court of Washington En Banc.

May 30, 1985.

Herrmann & Levenson, Jeffrey D. Gross, Ellsworth Connelly, Tacoma, for petitioners O'Neill and Fowler.

Neil Hoff, Tacoma, for petitioner Bennett.

James Buckley, Tacoma, for petitioner Chu.

William Griffies, Pierce County Prosecutor, Christine Quinn-Brintnall, Barbara Corey- -Boulet, Gerald A. Horne, Deputy Prosecutors, Rex N. Munger, Asst. Deputy Prosecutor, Tacoma, for respondent.

ANDERSEN, Justice.

FACTS OF CASE

At issue here is the constitutionality of the bribery statute and the validity of electronic recordings made of conversations relating to bribes.The recordings, made during the course of a Pierce County vice investigation, were authorized by court order.

The amended information filed by the Pierce County Prosecuting Attorney in this case charges 23 counts of bribery, each count involving one or more of the five defendants.

Following extensive pretrial hearings, the trial court among other rulings declined to grant the defendants' motions to dismiss based on their claim that the bribery statute was unconstitutional, and also declined to suppress the taped recordings on which much of the State's case rests.Detailed findings of fact and conclusions of law were entered in connection with such rulings.

The defendants and the State then joined in seeking direct discretionary review of those orders by this court.Since it appeared that there were important issues of first impression concerning this and other pending prosecutions in this State, discretionary review was granted.¹

The State's case is based on evidence obtained by the Pierce County Sheriff.First, he used an informant to infiltrate prostitution operations in Pierce County.Next, along with the continued use of the informant, the sheriff also used one of his deputies who pretended to be susceptible to the acceptance of bribes and who was then allegedly given substantial cash payoffs by the defendants to allow them to conduct prostitution operations.

After the investigation got underway, the sheriff's office contacted federal authorities and it was apparently felt that both state and federal law violations were involved.In any event, it was agreed that a joint investigation would be appropriate.Thereafter, the informant reported separately to the sheriff's office and to the Federal Bureau of Investigation (FBI).The informant was first wired with a concealed transmitter or recorder and, as a result, 11 federally-authorized intercepts were obtained by the FBI.These were not provided to the sheriff's office and the sheriff's office was not involved in obtaining them.Later, both the informant and the deputy sheriff who accepted payoffs were similarly wired by the sheriff's office, and it is their recorded conversations or intercepts with the five defendants which the defendants here seek to suppress as evidence.

All of the electronic recordings sought to be suppressed were obtained by the Sheriff's Office pursuant to written orders entered by the Superior Court of the State of Washington for Pierce County.The following order, the first one obtained, is illustrative of the 23 separate orders entered:

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON IN AND FOR THE

COUNTY OF PIERCE

)

)

IN THE MATTER OF AUTHORIZATION ) NO. 83-2-02945-2

TO INTERCEPT AND )

RECORD COMMUNICATIONS ) ORDER AUTHORIZING

OR CONVERSATIONS PURSUANT ) INTERCEPT AND

TORCW 9.73.090 ) RECORDING

)

)

TO: [Deputy] # 42 and members of the Pierce County Sheriff's Office Special Investigations Unit.

WHEREAS, sworn application having been made before me by [Deputy] # 42, a commissioned law enforcement officer of the Pierce County Sheriff's Office, and full consideration having been given to the matter set forth herein, the court hereby FINDS:

(a) There is probable cause for belief that bribery is going to be attempted.

(b) There is probable cause for belief that communications or conversations relating to said offense(s) will take place and will be obtained as evidence through interception and recording as hereafter set forth;

(c)[Deputy] # 157, one party to the expected communication or conversation, has given consent to intercept and recording of same;

(d) Normal investigative techniques reasonably appear to be unlikely to obtain convincing, accurate evidence of the crime(s);

Now, Therefore, IT IS HEREBY ORDERED THAT:

[Deputy] # 42 and members of the Pierce County Sheriff's Office Special Investigations Unit, together with necessary technical assistance are authorized to intercept and record by any device or instrument the communications or conversations of Chong S. O'Neill and others present concerning commission of the offense of bribery occurring at or upon the following place: An area within Pierce County to be agreed upon by Chong S. O'Neill.

IT IS FURTHER ORDERED that this authorization is effective 1600 hours, 6/22/83, and shall terminate upon (intercept and recording of the communications and conversations described above), or in any event upon the passage of seven (7) days from the effective date.

DONE 6/22/83.

/s/ Waldo Stone

JUDGE

Additional facts will be referred to where pertinent to the issue under consideration.

The following four issues are presented on discretionary review.

ISSUES

ISSUE ONE.Is the bribery statute under which the defendants are charged (RCW 9A.68.010(1)(a)) unconstitutionally overbroad or vague?

ISSUE TWO.Are the Superior Court orders which authorized electronic eavesdropping of conversations between the defendants and the informant and deputy sheriff defective because they were not issued on the application of either the State Attorney General or the Pierce County Prosecuting Attorney?

ISSUE THREE.Can probable cause for issuance of a Superior Court order authorizing electronic eavesdropping be based on information obtained by federal officers through electronic eavesdropping conducted without prior court approval where such evidence would be admissible in evidence in federal court under federal law but is inadmissible in evidence in a state court under Washington law?

ISSUE FOUR.Did the authority of the sheriff's office to conduct electronic eavesdropping, which had been granted by the first Superior Court order, terminate as soon as the initial conversation with the defendant O'Neill was recorded?

DECISION

ISSUE ONE.

CONCLUSION.Implicitly, if not expressly, the bribery statute(RCW 9A.68.010(1)(a)) requires a showing of corrupt intent, thus the statute is not overbroad.Nor is the statute vague, particularly as to persons charged with conduct such as that alleged here which is patently within the "hard core" of the bribery statute.

In the interest of readability, the citations in this opinion have been placed in the margin wherever feasible.

The defendants argue that the statute under which they stand charged violates the constitution because it is both overbroad and vague.It reads:

RCW 9A.68.010 Bribery.(1) A person is guilty of bribery if:

(a) With the intent to secure a particular result in a particular matter involving the exercise of the public servant's vote, opinion, judgment, exercise of discretion, or other action in his official capacity, he offers, confers, or agrees to confer any pecuniary benefit upon such public servant; ...

" '[O]verbreadth' goes to the question of substantive due process, i.e., whether the statute in question is so broad that it may not only prohibit unprotected behavior but may also prohibit constitutionally protected activity as well."Blondheim v. State, 84 Wash.2d 874, 878, 529 P.2d 1096(1975).Defendants argue, in effect, that since a person who might with some entirely innocent intent pay money to a public servant under circumstances that could be charged as bribery under the statute as written (and they offer a number of hypothetical examples), the statute is unconstitutionally overbroad.As held in State v. Stroh, 91 Wash.2d 580, 585, 588 P.2d 1182(1979), however, "an implied requirement that criminal intent be proved may be found in a statute, even though it contains no express requirement with respect to intent, upon the assumption that the legislature did not intend to enact an unjust law."²Manifestly, in enacting the bribery statutethe legislature did not intend to proscribe any innocent or constitutionally protected activity by it, but intended to cover only persons acting with a corrupt intent.³Since we construe this bribery statute as requiring proof of a defendant's corrupt intent, it is not overbroad.

"A statute is void for vagueness under the Fourteenth Amendment if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application."State v. White, 97 Wash.2d 92, 98-99, 640 P.2d 1061(1982).Defendants argue that since the legislature has not defined the term "official capacity", it is vague and thus the entire bribery statute is rendered unconstitutionally vague.We disagree.

In the context in which the term "official capacity" is used in the bribery statute, it simply means that the public servant is acting within the scope of what he or she is employed to do as distinguished from being engaged in a personal frolic.⁴Persons of common intelligence can understand such a meaning so the statute is not void for vagueness on that account.

Furthermore, even if the outermost boundaries of this statute may be imprecise, any such uncertainty has no relevance here where the payment of bribes to a police officer to allow prostitution is alleged, since such conduct falls squarely within the "hard core" of the statute's proscriptions.⁵

ISSUE TWO.

CONCLUSION.The orders authorizing electronic eavesdropping...