McKenney v. StateMcKenney v. State
By direct appeal, Margaret McKenney attacks the validity of her conviction of violating
Sometime around ten or eleven o‘clock in the evening on December 23, 1978, two police officers observed the defendant and two other women standing in front of a convenience store. From past experience, the officers were aware of the defendant‘s status as a “known prostitutе” in the area. She made a hitchhiking motion and flagged down a car. She and the sole occupant of the car, the male driver, then drove some two hundred yards to her house where they both went inside for about twenty minutes. When the man left the house, an officer approached him and asked for identification. As a result of their conversation the man, Mr. Whitley, agreed to testify that the defendant had engaged in oral sex with him for $20.00. At the same time Mr. Whitlеy was being questioned, the other officer went to the house to arrest the defendant.
The defendant was tried, convicted, and adjudicated guilty of assignation on May 24, 1979. At sentencing, on July 17, 1979, the trial court found the defendant was a habitual misdemeanant. In so doing the court relied on a prior conviction for prostitution obtained in a proceeding in which the defendant had not been represented by counsel.
The defendant first contends that the assignation statute is unconstitutionally vague and overbroad.
To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.
Thе term “assignation” shall be construed to include the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.
A vagueness and overbreadth challenge merits a three-fold anаlysis. First, the statute cannot infringe upon constitutionally protected First Amendment freedoms of expression and association. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). “Assignation,” as it is defined and understood in common usage, means, inter alia:
[A]n appointment of time and place for a meeting esp. [sic] for illicit sexual relations ...
Websters Third New International Dictionary, 132 (1976). Even speеch or expressive behavior which at first blush seems fully protected may be proscribed where it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). The instant statutory prohibition is limited to conduct which produces lawless action, i.e. prostitution or lewdness.
Our second inquiry is whether the statute is phrased so that persons of common intеlligence have adequate notice as to the nature of the proscribed conduct. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Sandstrom v. Leader, 370 So.2d 3 (Fla. 1979). A person whose conduct clearly falls within the statute‘s prohibition cannot reasonably be said to have been denied adequate notice, however. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). We find that the defendant in this case lаcks standing to complain of lack of notice since the facts adduced at trial reveal conduct which manifestly falls within the ambit of the assignаtion statute. Mr. Whitley testified: “I had seen her [the defendant] and I drove up and we just agreed to do what we did” (referring to the subsequent sexual act).
Lastly, a statute may be worded so loosely that it leads to arbitrary and selective enforcement by vesting undue discretion as to its scope in those who prosecute. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). There is no evidence of arbitrary or capricious enforcement in the record of this case. Absent such a showing, we find that the language describing the crime of assignation is precise enough to guide law enforcement officials in determining what conduct constitutes prоhibited conduct. We hold that the assignation statute is constitutional. See Summers v. Anchorage, 589 P.2d 863 (Alaska 1979).
The defendant‘s second major contention is that Mr. Whitley‘s testimony should not have beеn used against her. The trial court found that the initial detention of Whitley was illegal and that the detective‘s offer of “either be a witness or be a defendant” rendered Whitley‘s statements involuntary and coerced. The defendant argues that these statements and Whitley‘s live testimony were incurably and direсtly tainted by the illegality and therefore subject to exclusion as “fruit of the poisonous tree.” U.S. v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); U.S. v. Cruz, 581 F.2d 535 (5th Cir.1978). The trial court properly rejected this argument оn the ground that the defendant did not have standing to object to violations of Whitley‘s constitutional rights. Alderman v. U.S., 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); U.S. v. Fredericks, 586 F.2d 470 (5th Cir.1978); Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978). In U.S. v. Fredricks the testimony of Ehrlich, an unindicted coconspirator, was obtained in viоlation of her Fourth, Fifth, and Sixth Amendment rights. The Fifth Circuit noted:
But whether or not Ehrlich‘s rights were infringed by her arrest, her interrogation, or the compulsion of her testimony is immaterial to this appeal. For the simple fact of the matter is that appellants’ rights were not violated by any of those governmental acts and therefore suppression of Ehrlich‘s testimony is not required to protect or vindicate their rights.
586 F.2d at 480. As in Fredericks, our holding that the defendant lacks standing to assert a probable violation of Whitley‘s constitutional rights does “not sanction gross police misconduct against third parties in the overly zealous pursuit of criminal convictiоns.” 586 F.2d at 481. The questionable police tactic of offering a person the Hobson‘s choice of being arrested or testifying against another doеs not fall in this instance to the level of
third-degree physical or psychological coercion that might prompt us to disregard altogether the societal interest in law enforcement by excluding the highly probative testimony of a nondefendant.
Id. (footnote omitted). This situation is not compаrable to those involving a valid offer of immunity from a state attorney or other authorized person.
Inasmuch as we find defendant‘s conviction valid, we must now turn to her sentence as a habitual misdemeanant. The United States Supreme Court has recently ruled that an uncounseled misdemeanor cоnviction cannot be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. In Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), the Court rеlied on two prior decisions which held that an uncounseled conviction could not support a deprivation of liberty. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The Court did not
The conviction and sentence are affirmed.
It is so ordered.
SUNDBERG, C.J., and BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.
ENGLAND, J., concurs in result only.