State v. Poe

• Decision Date: 04 March 2004
• Docket Number: No. 28404.,28404.
• Citation: 88 P.3d 704,139 Idaho 885
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Joseph Martin POE, Sr., Defendant-Appellant.
• Court: Idaho Supreme Court

88 P.3d 704

139 Idaho 885

STATE of Idaho, Plaintiff-Respondent, v. Joseph Martin POE, Sr., Defendant-Appellant.

No. 28404.

Supreme Court of Idaho, Coeur d'Alene, October 2003 Term.

March 4, 2004.

Rehearing Denied April 27, 2004.

Douglas P. Phelps, Spokane, Washington, for appellant. Douglas P. Phelps argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Lori A. Fleming argued.

EISMANN, Justice.

This is an appeal from a conviction for disturbing the peace in which the appellant alleges, among other things, that Idaho Code § 18-6409 is unconstitutionally overbroad. We affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

On September 7, 1999, the defendant-appellant Joseph Poe was charged with disturbing the peace in violation of Idaho Code § 18-6409 based upon statements he made to a thirteen-year-old boy who had come with his mother to Poe's home to pick up another child.¹ The jury found Poe guilty, and the district court upheld his conviction on appeal. He then appealed to this Court.

II. ISSUES ON APPEAL

A. Is Idaho Code § 18-6409 unconstitutionally overbroad on its face?

B. Is Idaho Code § 18-6409 unconstitutionally vague?

C. Did the prosecution in this case violate Poe's right to privacy?

D. Did the trial court err by admitting hearsay statements into evidence under the excited utterance exception to the hearsay rule?

E. Did the trial court err in instructing the jury?

F. Did the State fail to allege an essential element of the offense in the complaint?

G. Was there a conflict in the jury instructions that entitles Poe to a new trial?

III. ANALYSIS

A. Is Idaho Code § 18-6409 Unconstitutionally Overbroad on its Face?

In State v. Hammersley, 134 Idaho 816, 10 P.3d 1285 (2000), we addressed the issue of whether Idaho Code § 18-6409 was unconstitutionally overbroad as applied to the defendant in that particular case. We did not address the issue of whether the statute is unconstitutionally overbroad on its face. Although the dissent argues that Hammersley did consider the facial overbreadth of § 18-6409, that assertion is inconsistent with what Hammersley said it decided. In the subtitle to its discussion, Hammersley identified the issue as "1. I.C. § 18-6409 is not overbroad as applied to Hammersley." 134 Idaho at 820, 10 P.3d at 1289. In its analysis, the Court said, "Because Hammersley has not asserted that I.C. § 18-6409 is facially overbroad, the second part of our analysis need only address whether the statute precludes a significant amount of Hammersley's speech." 134 Idaho at 820-21, 10 P.3d at 1289-90. In concluding the overbreadth discussion, the Court stated its holding as follows: "Accordingly, we hold that as applied to Hammersley, I.C. § 18-6409 is not overbroad." 134 Idaho at 821, 10 P.3d at 1290. At the conclusion of the opinion, when summarizing what it had done, the Court in Hammersley likewise did not mention the facial overbreadth of the statute as an issue that it decided. In its conclusion, the Court stated:

We hold: 1) Hammersley's statement fell outside the scope of speech protected by the United States and Idaho Constitutions; 2) I.C. § 18-6409 is not overbroad as applied to Hammersley; 3) I.C. § 18-6409 is not unconstitutionally vague; and 4) I.C. § 18-6409 gives adequate notice of the conduct proscribed as well as adequate guidance to those charged with enforcing it. The order of the magistrate court is affirmed.

134 Idaho at 822, 10 P.3d at 1291. Thus, it is clear from its opinion that Hammersley did not address the facial overbreadth of Idaho Code § 18-6409.

Even if we were to read Hammersley as deciding an issue it said it was not deciding, there is a more basic reason why Hammersley is not authority for determining whether Idaho Code § 18-6409 is overly broad on its face. The United States Supreme Court utilizes two separate standards when determining the facial constitutionality of a statute under the First Amendment. If the statute punishes only spoken words, it can withstand an attack upon its facial constitutionality "only if, as authoritatively construed by the [state appellate] courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments." Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408, 413 (1972). However, the function of facial overbreadth "attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from `pure speech' toward conduct and that conduct even if expressive—falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct." Broadrick v. Oklahoma, 413 U.S. 601, 614, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830, 841 (1973). If the statute proscribes conduct, not merely spoken words, that may infringe upon First Amendment rights, such as expressive conduct, rights of association, or regulations on the time, place, and manner of expressive or communicative conduct, the Supreme Court uses a different standard when evaluating whether the statute is overly broad. "[P]articularly where conduct and not merely speech is involved, we [the United States Supreme Court] believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id.

With respect to those parts of Idaho Code § 18-6409 that proscribe only spoken words, the statute can withstand a challenge to its facial constitutionality "only if, as authoritatively construed by [this Court], it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments." Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408, 413 (1972). Hammersley did not apply or even mention that standard, however. Rather, when addressing whether § 18-6409 was overly broad as applied to Hammersley's speech, it stated, "[O]ur analysis need only address whether the statute precludes a significant amount of Hammersley's speech." 134 Idaho at 820-21,10 P.3d at 1289-90. That standard is only appropriate when considering a facial challenge to those portions of the statute that proscribe expressive conduct. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Thus, because Hammersley did not use the standard prescribed by the United States Supreme Court for evaluating a facial challenge to a statute that proscribes only spoken words, Hammersley cannot be authority for a challenge to the facial overbreadth of those portions of Idaho Code § 18-6409 that proscribe only spoken words.

The standard used by Hammersley came from State v. Bitt, 118 Idaho 584, 798 P.2d 43 (1990), which did not even involve a facial challenge to a statute on the ground that it was overly broad under the First Amendment. Rather, in Bitt this Court struck down a loitering ordinance under the Due Process Clause of the Fourteenth Amendment on the ground that it was unconstitutionally vague. That standard is not even the appropriate one for an as-applied challenge. If a statute as applied to a particular defendant infringes upon his or her freedom of speech protected by the First Amendment, the defendant's conviction must be reversed without any showing that such infringement was "substantial." Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). We therefore overrule Hammersley to the extent that it holds that a statute is not unconstitutionally overbroad as applied to a particular defendant's speech unless it precludes a significant amount of the constitutionally protected speech.

Poe now raises on appeal the issue of whether Idaho Code § 18-6409 is unconstitutionally overbroad on its face in violation of the First and Fourteenth Amendments to the Constitution of the United States. Under the decisions of the United States Supreme Court, Poe is entitled to raise this issue even if his own conduct could be punished criminally by a statute drawn with the requisite narrow specificity. As explained by the Supreme Court:

It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. As a corollary, the Court has altered its traditional rules of standing to permit—in the First Amendment area—"attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915-16, 37 L.Ed.2d 830, 839-40 (1973). It is therefore unnecessary to examine the scurrilous words spoken by Poe in this case in order to determine whether the statute is overly broad. Rather, we must simply examine the statute on its face.

The First Amendment to the Constitution of the United States protects both actual speech and symbolic or expressive conduct. Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). A statute that punishes only spoken words is facially overbroad if it is susceptible of application to speech that is protected by the First Amendment. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). The overbreadth doctrine has less application, however, to conduct. Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 156...