State v. Porter

• Decision Date: 28 March 1978
• Citation: 384 A.2d 429
• Parties: STATE of Maine v. Roxanne PORTER.
• Court: Maine Supreme Court

Page 429

384 A.2d 429

STATE of Maine v. Roxanne PORTER.

Supreme Judicial Court of Maine.

March 28, 1978.

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

Roberts, Shirley & Humphrey by Thomas E. Humphrey (orally), James J. Shirley, Sanford, for defendant.

Before McKUSICK, C. J., and WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

McKUSICK, Chief Justice.

The defendant, Roxanne Porter, entered a plea of guilty to an indictment charging her with the offense of "terrorizing" in violation of section 210 of the Criminal Code. ¹ She now appeals from the judgment entered on her guilty plea, alleging that the statute under which she was indicted is unconstitutional on its face for overbreadth. ²

We deny the appeal.

I. Attack on Constitutionality of Section 210

The defendant concedes that she committed the acts charged by the indictment, namely:

"That on or about the 20th day of October, 1976, in the Town of Sanford, County of York and State of Maine the . . . defendant Roxanne Porter, did communicate to another person, namely Tina Fanjoy, an employee of Sprague Electric Co., a threat to commit a crime of violence, dangerous to human life, to wit: by then and there stating to said Tina Fanjoy that a bomb had been placed upon the premises of said Sprague Electric Co., thereby causing the evacuation of the said premises by the employees of Sprague Electric Co."

Having admitted to the acts charged, the defendant claims that section 210 is unconstitutionally overbroad on its face in that it proscribes speech protected by the First Amendment. Since we find that the statute is not overbroad, we reject the appellant's attack.

Before proceeding, we note that appellant's standing to attack the constitutionality of the statute, if it otherwise existed, was not lost by her guilty plea. If section 210 suffers from fatal overbreadth, it follows that the defendant's indictment under that statute was invalid and that the Superior Court was without jurisdiction to entertain her plea and to enter judgment and sentence thereon. Jurisdictional questions, unique in degree of importance, are among the few exceptional issues which a defendant who has pled guilty may raise either by post-conviction habeas corpus proceeding or, as here, on direct appeal from the judgment. See State v. Small, Me., 381 A.2d 1130 (1978); Dow v. State, Me., 275 A.2d 815, 821 (1972).

Defendant's charge of overbreadth is predicated upon her argument that section 210 by its terms applies to a person who communicates a threat merely for the purpose of warning the person threatened by a third party, and that such a person comes within the protection of the First Amendment. We conclude that section 210 does in fact proscribe, under certain circumstances, the communication of a threat by one who has the intent of merely warning the person threatened. It is plain to us, in view of the language used in section 210 and the unspecified elements of the offense of "terrorizing," that the legislature intended to penalize him who actually "threatens," either (1) in the usual sense of one who, having originated the threat of a crime of violence, personally communicates that threat to another person, or (2) one who, although not the originator of the threat, transmits another's threats under such circumstances and in such a way that the threat, to any objective observer, has "become his own." In either sense, as the statute only penalizes one who "threatens," the statute suffers no overbreadth. Anyone who "communicates a threat" as we construe the statutory term forfeits the protection of the First Amendment.

Section 210 makes a person guilty of terrorizing if he " communicates to any person a threat", etc. That language is identical, for practical purposes, to the opening language of former section 3701 of Title 17, from which section 210 is largely derived, which penalized "(w)hoever makes, publishes or sends to another any communication . . . containing a threat". ³ Both word formulations, in common parlance and in legal effect, mean simply whoever "threatens." ⁴ In each statute, the more cumbersome form of expression was apparently adopted for grammatical convenience to fit with the balance of the sentence. The code's name for the section 210 crime " terrorizing" implies an intent to punish a particular type of "threatening." ⁵ In any event, insofar as ambiguity may be found to exist in the phrase "communicates to any person a threat," that phrase must, to the extent consistent with the apparent intent of the statute, be given a narrow application, in keeping with the principle that penal statutes are to be strictly construed. State v. King, Me., 371 A.2d 640 (1977).

Section 210 thus punishes only him who "threatens" the crime of violence dangerous to human life. The word "threat" is by definition "an expression of intention to inflict evil or injury on another; the declaration or indication of an evil, loss, or pain to come . . . ." ⁶ When the nub of the statutory language is focused upon, it becomes almost self-defining because of its commonly understood meaning, and

"(w)ords of a penal statute must be given their common and popular sense, unless the act discloses a legislative intent otherwise." State v. Heald, Me., 382 A.2d 290, 294 (1978).

Indeed, as discussed below, this court had no difficulty in defining the word "threat," standing alone in the predecessor statute, 17 M.R.S.A. § 3701, supra, in a constitutionally valid way. See e. g., State v. Cashman, Me., 217 A.2d 28, 29 (1966).

The Criminal Code, however, goes much further in delineating the crime than merely proscribing "threatening." In addition to the act of " threatening," the code expressly requires the crime to have the further element that the "natural and probable consequence of such a threat" is either "to place the person to whom the threat is communicated in reasonable fear that the crime will be committed," or "to cause evacuation of a building, place of assembly or facility of public transport." This requirement that the threatening have certain probable disruptive consequences restricts application of the statute 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. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).

Our reading of section 210 is further supported by examination of this court's decisions under its predecessor statutes, the former crimes of "false bomb threats" and "threatening communications." 17 M.R.S.A. §§ 503, ⁷ 3071. ⁸ As the official comment to section 210 instructs, prior decisions construing section 3701 are helpful to understanding the scope of section 210. In State v. Cashman, supra at 30, this court first gave meaning to the term "threat" in section 3701. We there concluded that all the attendant circumstances, including the relationship between the parties, must be taken into account in determining whether the communication at issue is a "threat":

"In the instant case the threat must be found, if at all, in the words 'they would take care of me' and 'they would see that I was taken care of.' Such expressions may be completely devoid of menace under some circumstances and pregnant with the promise of evil in a different setting. Here the phrasing was designed to induce fright and alarm. . . . This was no mere warning or prediction as to matters outside the control of the respondents. . . . The threat was real. The promise of evil was effectively conveyed." (Emphasis added)

Although this court had no occasion in Cashman to rule on the precise point, the language there employed implicitly recognized that section 3701 penalized only the communication of threatened harm from one who actually threatened it, or one who transmitted another's threat under such circumstances that, to the objective recipient of the threat, the promise of evil was the communicator's "own." In decisions subsequent to Cashman construing section 3701, we also consistently required as an additional element of the offense that the threat's " 'promise of evil' must be in a context of circumstances by which it gives rise to reasonable likelihood that 'alarm' or 'fear . . . to his disquiet' will be induced in some person." State v. Sondergaard, Me., 316 A.2d 367, 369 (1974); State v. Hotham, Me., 307 A.2d 185, 186 (1973); State v. Lizotte, Me., 256 A.2d 439, 442 (1969). A close identity thus exists between the express elements of section 210 and those elements this court by judicial construction found to be essential under section 3701. That similarity buttresses our conclusion that the legislature intended section 210 to cover the same type of threatening communication previously punishable under section 3701. As Cashman implied in speaking of the predecessor statute, section 210 is not intended to penalize the communication of a "mere warning or prediction as to matters outside" the control of the person communicating the threat. We conclude that the language of section 210, like that of section 3701 before it, generates no problem of unconstitutional overbreadth.

II. Sufficiency of the Section 210 Indictment

The present indictment for a violation of section 210 is framed exclusively in the words of section 210. It nowhere alleges in express terms that the defendant, Roxanne Porter, communicated the threat with any of the culpable mental states defined in section 10 of the code. See 17-A M.R.S.A. § 10 (1976). Because the insufficiency of an indictment to charge a criminal offense is noticeable by this court as a defect in jurisdiction, ⁹ we must consider whether an indictment so framed in the language of section 210 alone is defective for failure to plead any culpable state of mind beyond that implicit in the words of that section.

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