State v. Read, 95-023

Docket NºNo. 95-023
Citation680 A.2d 944, 165 Vt. 141
Case DateMarch 22, 1996
CourtUnited States State Supreme Court of Vermont

William D. Wright, Bennington County State's Attorney, and Marcia J. Moss and John T. Lavoie, Deputy State's Attorneys, Bennington, for plaintiff-appellee.

Stephen L. Saltonstall of Witten, Saltonstall, Woolmington, Bongartz & Campbell, P.C., Bennington, for defendant-appellant.

Robert Appel, Defender General, and Anna Saxman, Appellate Defender, Montpelier, for amicus curiae Office of Defender General.


GIBSON, Justice.

Defendant was convicted in Bennington District Court of violating the "abusive language" provision of Vermont's disorderly conduct statute, 13 V.S.A. § 1026(3). He now challenges the constitutionality of that provision under the United States and Vermont constitutions. We affirm.

On May 20, 1993, at approximately 2:00 a.m., Trooper Michael Roj of the Vermont State Police responded to a single-car accident on Route 100 in Whitingham. Trooper Roj found defendant, whom the trooper knew, at the scene. Defendant told the trooper, "Mike, I fucked up." The trooper took no offense at defendant's language, but considered the comment to be "street language." The trooper detected the odor of alcohol on defendant's breath, and defendant stated that he had consumed a beer after the accident. The trooper, observing that defendant had suffered multiple facial lacerations, persuaded defendant to seek treatment for his injuries, and summoned an ambulance, which transported defendant to the emergency room of the Southwestern Vermont Medical Center.

At approximately 3:00 a.m., Trooper Roj arrived at the medical center to continue his accident investigation. He entered the hospital through the emergency entrance and observed an ambulance crew, a nurse, a physician, and another person, either a patient or a visitor, in the emergency admissions area. He also observed defendant in the same area, talking on a public telephone and then entering an examining room just off the emergency admissions area. After speaking with the nurse, Trooper Roj followed defendant into the examining room.

The trooper asked defendant several questions about the accident; defendant responded in a cooperative manner. Trooper Roj then told defendant that, because he believed defendant had been driving under the influence of intoxicating beverages, he would be processing defendant for DUI. He immediately observed that defendant went "from being very cooperative and very personable to being very uncooperative, very aggressive, very argumentative, very insulting, very profane, and display[ing] a number of very aggressive mannerisms." Specifically, defendant shouted: "You're a fucking piece of shit.... You're a fucking asshole.... I want you to get out of my face. You're dead." Defendant's tone of voice was very loud, and Trooper Roj observed that defendant's arms were flexed and rigid, his fists were clenched, his teeth were grinding, and his facial expression was rigidly set in what the trooper called "the thousand-mile stare."

Trooper Roj attempted to calm defendant down, and advised him that there were a number of other people in the emergency room who should not be subjected to defendant's tone of voice or language. The trooper also told defendant that he could face criminal charges for his behavior. Defendant became even angrier, and shouted: "Go ahead, you fucking pig. You're a stupid fucking pig. You're not even here, you pig." Trooper Roj felt "a sense of great anger built up within me based upon not only the words that were used, but the voice, the aggressive voice in which they were used," and felt "afraid of the possibilities of an imminent attack by Mr. Read upon me," particularly after defendant told the trooper, "You're dead." 1 During defendant's tirade, the door of the examining room was open. When Trooper Roj left the room, he observed a physician seated in an adjacent room with its door open, and a nurse seated forty-five feet from the examining room.

Trooper Roj acknowledged that he had had both training and experience in dealing in a nonviolent manner with abusive persons, including intoxicated persons, and that he would be subject to disciplinary action if he struck a person merely for being verbally abusive.

Defendant was charged with disorderly conduct, in violation of 13 V.S.A. § 1026(3), which provides, in pertinent part: "A person who, with intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof ... [i]n a public place uses abusive ... language ... shall be imprisoned for not more than 60 days or fined not more than $500.00 or both." 13 V.S.A. § 1026(3) (emphasis added). Defendant moved for dismissal on the grounds that the statute is facially vague and overbroad in that it impermissibly infringes free speech, as guaranteed under the United States and Vermont constitutions. The trial court denied defendant's motion, holding that the "abusive language" provision of § 1026(3) applies only to "fighting words," as that term was used by the United States Supreme Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Defendant was convicted following a bench trial.

Defendant renews his federal and state constitutional challenges on appeal. Because the Vermont Constitution may not derogate any rights guaranteed under the United States Constitution, Benning v. State, 161 Vt. 472, 475 n. 2, 641 A.2d 757, 758 n. 2 (1994), we begin with defendant's federal constitutional claims.


Defendant contends that the "abusive language" provision is unconstitutionally vague and overbroad, in violation of the First and Fourteenth Amendments to the United States Constitution. 2 Identical claims were raised by an earlier case, State v. Elwell, 131 Vt. 245, 303 A.2d 134 (1973), but we were not called upon to resolve those claims, because we determined that the interlocutory appeal had been improvidently granted by the trial court. Id. at 248, 303 A.2d at 136. We acknowledged in dictum, however, that "the statute in question might be found to have a constitutional infirmity under one set of circumstances, [but] possibly a different answer might be given under another." Id. at 248, 303 A.2d at 135. We have previously rejected overbreadth and vagueness challenges to other provisions of the disorderly conduct statute that proscribe conduct rather than speech. See, e.g., State v. Begins, 147 Vt. 45, 48, 509 A.2d 1007, 1009 (1986) (rejecting vagueness challenge to "violent, tumultuous or threatening behavior" provision of 13 V.S.A. § 1026(1)); State v. Arbeitman, 131 Vt. 596, 601, 313 A.2d 17, 20 (1973) (rejecting vagueness and overbreadth challenges to "[o]bstructs ... pedestrian traffic" provision of 13 V.S.A. § 1026(5)). On its face, however, the "abusive language" provision of 13 V.S.A. § 1026(3) proscribes speech, rather than conduct.

Although vagueness and overbreadth challenges are doctrinally distinct, see generally L. Tribe, American Constitutional Law § 12.11, at 860-61 (2d ed. 1988), nevertheless, when they arise in a First Amendment context, we " 'vie[w] vagueness and overbreadth as logically related and similar doctrines.' " State v. Cantrell, 151 Vt. 130, 134, 558 A.2d 639, 642 (1989) (quoting Kolender v. Lawson, 461 U.S. 352, 359 n. 8, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903 (1983)).

When a statute punishes only spoken words, it can withstand an attack upon its facial constitutionality only if "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 (1972). Thus, we will not reach challenges based on facial unconstitutionality if there is a " 'readily apparent construction [that] suggests itself as a vehicle for rehabilitating the statut[e].' " Id. at 521, 92 S.Ct. at 1105 (quoting Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965)); accord Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397, 108 S.Ct. 636, 645, 98 L.Ed.2d 782 (1988) ("It has long been a tenet of First Amendment law that in determining a facial challenge to a statute, if it be 'readily susceptible' to a narrowing construction that would make it constitutional, it will be upheld.") (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975)). Indeed, this Court is obligated to narrow and limit the statute in light of the protections guaranteed by the United States and Vermont constitutions. See Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54, 57 (1980) (construing analogous statute); Cantrell, 151 Vt. at 134, 558 A.2d at 642 ("Where possible, a statute must be construed to avoid constitutional infirmities.").

In Chaplinsky, the United States Supreme Court declared:

[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace....

315 U.S. at 571-72, 62 S.Ct. at 769 (footnotes omitted) (emphasis added). The Court has recently acknowledged the continued vigor of the "fighting words" doctrine. See R.A.V. v. City of St. Paul, 505 U.S. 377, 385, 112 S.Ct. 2538, 2543-44, 120 L.Ed.2d 305 (1992) (" 'fighting words' ... constitute 'no essential part of any exposition of ideas' ") (quoting Chaplinsky, 315 U.S. at 572, 62 S.Ct. at 769).

Defendant contends that the trial court erred in construing the "abusive language" provision...

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