State v. Steiger, 1

• Decision Date: 21 September 1989
• Docket Number: CA-CR,No. 1,1
• Parties: STATE of Arizona, Appellee, v. Sam STEIGER, Appellant. 88-657.
• Court: Arizona Court of Appeals

Page 616

781 P.2d 616

162 Ariz. 138

STATE of Arizona, Appellee, v. Sam STEIGER, Appellant.

No. 1 CA-CR 88-657.

Court of Appeals of Arizona Division 1, Department D.

Sept. 21, 1989.

Reconsideration Denied Oct. 26, 1989.

[162 Ariz. 139] Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser, Chief Counsel and Asst. Atty. Gen., Crane McClennen, Asst. Chief Counsel and Asst. Atty. Gen., Crim. Div., Phoenix, for appellee.

Tom Karas, Phoenix, for appellant.

OPINION

CLABORNE, Presiding Judge.

This appeal involves the criminal prosecution and conviction of Sam Steiger, a member of the staff of the former Governor of the State of Arizona, Evan Mecham. Steiger was charged with a criminal violation of A.R.S. § 13-1804, which is entitled "Theft by Extortion." The information specifically charged Steiger with violating A.R.S. § 13-1804(A)(8), which provides:

(A) A person commits theft by extortion by knowingly ... seeking to obtain property or services by means of a threat to do in the future any one of the following:

. . . . .

(8) Perform or cause to be performed any other act which would not in itself materially benefit the defendant but which is calculated to harm another person with respect to his wealth, safety, business calling, financial condition, reputation or personal relationships.

This prosecution is based upon the following facts. Ron Johnson, a member of the Arizona Board of Pardons and Paroles, was appointed to the board by Governor Bruce Babbitt in 1984 and reappointed by Governor Evan Mecham in January, 1987. In August of 1987, Johnson was appointed Justice of the Peace Pro Tem by B. Michael Dann, Presiding Judge, Maricopa County Superior Court. Johnson had inquired of the governor's office before his appointment to determine if there was serious objection to his holding both positions. There was not. The authority to appoint and remove a member of the board is solely the governor's. A.R.S. § 31-401 (1986).

The executive director of the board was Ms. Patricia Costello (Costello). She had been recommended by Steiger to fill that position in 1987, the year she was hired. Ms. Costello's employment was contingent upon the majority approval of the board. Her duties generally encompassed the supervision of the day-to-day administration of board activities.

The board was to meet on October 1, 1987. One of the agenda items was the continued employment of Costello as executive director. On the morning of the meeting, Steiger phoned Johnson. According to Johnson, Steiger said:

I want to make myself perfectly clear. If you vote to remove Patricia Costello as Executive Director to the Board at this afternoon's meeting I will see to it that you no longer serve as Justice of the Peace, and I will further take every step necessary to have you removed from the Board. Did I make myself clear?

It is upon this alleged statement that the prosecution of Steiger was based.

Before the board meeting, Johnson reported his version of the conversation to the Arizona Attorney General, Robert Corbin. At the board meeting and before the vote on Costello, Steiger appeared and voiced his concern on the stability and performance of the board and its relationship with the Department of Corrections. The vote was 4 to 3 to ask Costello to resign. Johnson voted in favor of asking for her resignation. Ms. Costello tendered her resignation immediately after the vote.

On October 2, 1987, Johnson received a letter from Steiger. The contents of the letter were:

Dear Mr. Johnson:

The permission granted you to act as Justice of the Peace pro-tem is withdrawn effective immediately.

Failure to comply with this order will result in this office rescinding your administrative probation and demanding your resignation.

Sincerely,

/s/Sam Steiger

Sam Steiger

Special Assistant

Johnson went back to the attorney general's office and, at the direction of that office, called Steiger at his home and tape-recorded that conversation without the knowledge of Steiger.

On October 5, 1987, George Graham, an investigator for the attorney general's office, at the direction of a deputy attorney general, went to Steiger's office and tape-recorded an interview without Steiger's knowledge. The state at oral argument conceded that one of its purposes in obtaining the recordings by Johnson and Graham was to gather impeaching evidence against Steiger.

Before trial, Steiger filed a motion to dismiss the information, a motion to suppress the Johnson and Graham recordings, and a motion in limine to limit the introduction of evidence at trial. Steiger also vigorously opposed the state's motion in limine to exclude certain evidence, contending that the granting of such a motion severely limited the defendant's right to test the credibility of the state's evidence, and severely limited the defendant's right to fully present his case.

At trial, the state offered both the Johnson and Graham recordings in evidence over Steiger's objection. The court admitted both recordings. Steiger had moved to suppress these recordings, but that motion was denied.

The essence of Steiger's defense was that any statement he made to Johnson was not for pecuniary or monetary gain but merely to advance the efficiency of the board and to repair the relationship between the board, the Department of Corrections and the public. The state's position is that Steiger extorted a vote from Johnson in violation of A.R.S. § 13-1804(A)(8).

On April 7, 1988, the jury returned a verdict of guilty. The court denied Steiger's motion for new trial, which urged that the court erred in various instructions given and refused; in the admission and exclusion of certain evidence; and in failing to dismiss the prosecution. The court placed Steiger on probation for four years and ordered him to pay a fine in the amount of $5,480.00 and perform 700 hours in a community work service program.

Steiger raises the following issues on appeal:

1. The court's granting of the state's motion in limine denied Steiger due process and a fair trial.

2. Steiger was denied due process when the court precluded him from calling witnesses, introducing exhibits and testifying fully in his defense.

3. Steiger was denied the right to cross-examine Johnson on matters elicited by the state on direct examination.

4. The court erred in denying Steiger's motion to dismiss the information.

5. The court erred in its instructions to the jury.

6. The court erred in denying Steiger's motion to suppress conversations recorded by the state.

Steiger argues that the information should have been dismissed on constitutional grounds. He alleges that the portion of the statute under which he was prosecuted was unconstitutionally vague and susceptible not only of uncertain construction but also arbitrary application. Steiger claims that the statute is not only unconstitutionally vague with respect to him, but also that it is so vague that it abridges constitutionally protected rights of speech and expression of others. We decide today that A.R.S. § 13-1804(A)(8) is unconstitutionally vague and that this statute provides a real, credible and substantial threat of arbitrary and discriminatory enforcement.

As a result of questions by the court and counsel's answers, we requested additional briefing on the issue of whether the failure to obtain a warrant from a neutral magistrate before surreptitiously tape-recording a conversation violates Arizona's constitutional guarantee of privacy. Although we feel this issue is serious, we do not reach it, or the other issues raised on appeal, because we base our decision on the constitutionality of A.R.S. § 13-1804(A)(8). See State v. Yslas, 139 Ariz. 60, 63, 676 P.2d 1118, 1121 (1984).

A.R.S. § 13-1804(A)(8) is Unconstitutionally Vague.

Basic to our constitutional society is the concept that governmental power should be properly restrained so that individual freedom can be responsibly exercised. See Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). As a result, penal statutes must be precise enough to clearly define the limits of that power. Our supreme court has said:

That the terms of a penal statute ... must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

State v. McNair, 141 Ariz. 475, 483, 687 P.2d 1230, 1238 (1984) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926)).

Therefore, a penal statute is vague if it fails to give persons of average intelligence reasonable notice of what behavior is prohibited or is drafted in such a manner that it permits arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983); State v. Tocco, 156 Ariz. 116, 750 P.2d 874 (1988). Although due process requires notice which provides a fair and definite warning, it neither requires absolute precision nor impossible standards. Fuenning v. Superior Court, 139 Ariz. 590, 598, 680 P.2d 121, 129 (1983). See also United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975).

Turning now to Steiger's vagueness attack on A.R.S. § 13-1804(A)(8), he first argues that the statute is vague because it does not clearly indicate a "vote" is encompassed within the terms "property or services" as used in A.R.S. § 13-1804(A). He contends the statute fails to give notice that it prohibits a "strictly political decision involving an intangible vote...."

Arizona has adopted broad definitions of property and services. Property is defined in...