State v. Richardson

• Decision Date: 08 June 1973
• Docket Number: No. 11085,11085
• Parties: STATE of Idaho, Plaintiff-Respondent, v. John H. RICHARDSON, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 263

511 P.2d 263

95 Idaho 446

STATE of Idaho, Plaintiff-Respondent, v. John H. RICHARDSON, Defendant-Appellant.

No. 11085.

Supreme Court of Idaho.

June 8, 1973.

Rehearing Denied July 5, 1973.

Theodore V. Behm, Edgar R. Frachiseur, Buhl, for defendant-appellant.

W. Anthony Park, Atty. Gen., J. Dennis Williams, Deputy Atty. Gen., James G. Reid, Asst. Atty. Gen., Boise, for plaintiff-respondent.

BAKES, Justice.

At approximately midnight, August 28, 1971, a disturbance occurred in the Depot Grill in Twin Falls, Idaho, at a table where John H. Richardson, defendant-appellant herein, his ex-wife, Penny Richardson, and her sister were seated. The disturbance was caused by appellant's ex-wife, Penny, speaking in loud and profane language. The record is clear that appellant did not participate in the disturbance inside the restaurant but attempted to calm and quiet his ex-wife.

A waitress requested two policemen seated at the counter to remove the parties from the restaurant because the loud and profane language used by appellant's ex-wife might offend customers. The police officers escorted appellant and the two women from the restaurant where a discussion took place in front of the building. Up to this point witnesses testified that appellant had not caused any disturbance.

Once outside the restaurant, the two women told the police officers that they would leave but did not want appellant to go with them. One of the officers, speaking to appellant, said, 'Johnny, leave them alone.' The police officer, over objections of defense counsel, testified that appellant then replied with threatening gestures and foul language. (Rptr. Tr. p. 24A). The police officers informed appellant that he was under arrest for disorderly conduct and as they attempted to take him into custody an altercation broke out. In the course of the ensuing fight, one of the police officers was kicked in the mouth and appellant ripped one officer's pistol from the holster and fired it in the air. The officers finally subdued Richardson by spraying Mace, a chemical similar to teargas, in his face. Witnesses testified that appellant continually made threats and used foul language at the time of incident and even during the booking procedure at the police station. Appellant Richardson denied that he used threatening or foul language at any time and claimed that he had been hit repeatedly by the arresting officers. The police officers testified that Richardson had been hit only once.

A criminal complaint was filed against Richardson charging him with the felony of resisting a police officer by means of violence. Following a preliminary hearing Richardson was bound over to the district court and a trial date of February 2, 1972, was set.

On January 28, 1972, Richardson moved for a continuance on the ground that a material witness, Richardson's ex-wife, Penny Richardson, who was present at the scene of the alleged crime, was in the hospital and could not appear at the trial. The motion for continuance was denied. However, Penny Richardson's earlier testimony from the preliminary hearing was read to the jury. On February 3, 1972, the jury returned a verdict of guilty on the charge of resisting a law enforcement officer by means of violence.

On February 14, 1972, appellant made a motion for a new trial alleging two main grounds; first, that the court committed error in permitting the police officers to testify regarding specific profane language which he allegedly used, and secondly that the trial court failed to give a requested instruction. The motion for new trial was denied and the trial court, on February 25, 1972, entered a judgment of conviction, and appellant Richardson was sentenced to the Idaho State Board of Corrections for a term not to exceed five years. The court retained jurisdiction of the defendant and the sentence for 120 days. On February 25, 1972, Richardson appealed to this Court.

In his first assignment of error appellant contends that the trial court erred in refusing to grant a continuance to the defense until a material witness was released from the hospital. In Pauley v. Salmon River Lumber Co., Inc., 74 Idaho 483, 264 P.2d 466 (1953), this Court set forth the test to be applied when considering a motion for continuance. The Court in Pauley said:

'From the foregoing cases it appears that if the showing made upon an application for a continuance upon the ground of the absence of a material witness, is made in good faith, shows that reasonable diligence has been exercised to obtain the presence of the witness, shows substantially to what the witness would testify and that such testimony is material, and shows a sufficient reason for the absence of the witness by the affidavit of an affiant in position to know the facts, then it is an abuse of discretion for the trial court to refuse to grant a continuance. Of course, if the adverse party admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed.' 74 Idaho at 490, 264 P.2d at 470.

It is well settled in this, and the overwhelming majority of other jurisdictions, that the granting of a motion for continuance is vested in the sound discretion of the trial court, and the action of that court will not be disturbed unless there has been a clear abuse of discretion. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); State v. Laws, 94 Idaho 200, 485 P.2d 144 (1971); State v. Bullis, 93 Idaho 749, 472 P.2d 315 (1970); State v. Polson, 92 Idaho 615, 448 P.2d 229 (1968). I.C. § 19-1909. In state v. Laws, supra, this Court said:

'Generally it is held that unless an appellant shows that his substantial rights have been prejudiced by reason of a denial of his motion for continuance, appellate courts can only conclude that there was no abuse of discretion. (Omitting citations).' 94 Idaho at 202, 485 P.2d at 146.

In Ungar v. Sarafite, supra, the Supreme Court of the United States held:

'The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. (Omitting citations). Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. (Omitting citations). There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. (Omitting citations).' 84 S.Ct. at 849, 850 (1964).

We cannot say as a matter of law that the trial court infringed on appellant's substantial rights or that it abused the discretion vested in that court by denying appellant's motion for continuance. The record discloses that Mrs. Richardson's testimony from the preliminary hearing was read in full to the jury. Mrs. Richardson testified at the preliminary hearing that appellant was a gentleman and created no disturbance while inside the restaurant, that she did not see the start of the altercation once the parties were outside the building, that she never did observe appellant being boisterous, loud or making any threats to the police officers, that she did not hear appellant use any profane language, but that she did see appellant pull the gun and fire it in the air.

Even though Mrs. Richardson's testimony may have been more impressive had she testified in person, the trial court in its discretion denied appellant's motion for continuance and ordered her prior testimony of the events in question read to the jury. In so ruling we cannot say as a matter of law that the trial court abused its discretion. Therefore the order denying appellant's motion for continuance is affirmed. Ungar v. Sarafite, supra; State v. Laws, supra; State v. Bullis, supra.

Appellant's second assignment of error alleges that the trial court erred in permitting specific words of profanity to be elicited from the arresting officers when the materiality of such specific language was far outweighed by its prejudicial effect. At the time of the alleged crime appellant was placed under arrest for violation of a Twin Falls city disorderly conduct ordinance prohibiting, in part, the use of vulgar, profane or indecent language in the presence of women or children. It is well established that public obscenity is not protected by the freedom of speech provision of the First Amendment, Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); City of Pasco v. Dixon, 81 Wash.2d 510, 503 P.2d 76 (1972), and that a community may constitutionally enact laws making it an offense to use vulgar, obscene and lewd words in public. City of Pasco v. Dixon, supra. It was under such a statute that appellant Richardson was initially placed under arrest.

The state was entitled to show the circumstances which resulted in the defendant being placed under arrest for disorderly conduct and the conduct which resulted in the charge of resisting arrest. The specific profane language was relevant to prove those circumstances. Also, Richardson's plea of not guilty to the felony charge of resisting arrest with force and violence raised the issue of his intent or state of mind at the time of the altercation with the officers. The language employed by Richardson at the time he kicked one officer in the mouth and took the gun away from the other officer and fired it into the air was relevant and material to the issue of whether or not he was resisting an arrest or, as he testified, resisting an unlawful assault by the officers. We have reviewed that testimony and are of the opinion that there was relevance in what Richardson said,...