*1 No. McCauley v. Bernard “Bud” State of Colorado A. (561 P.2d Rehearing April denied 1977. March Decided *2 J. MacFarlane, General, D. Attorney Jean Dubofsky, Deputy, E. Donovan, General, Beeks, Assistant, Solicitor E. Edward G. Ronald for plaintiff-appellee. Auer, Pacheco, Harrell,
Pacheco & Donald N. Alfred C. Normando Pacheco, defendant-appellant. R.
En Banc. MR. JUSTICE ERICKSON delivered the of the opinion Court. In Harold and Northrup, president sole stockholder of the Ar- vada Hardwood the Company, (“Bud”) Floor hired Bernard A. McCauley, place wiretaps on the lines phone company. of his The wire- were to be taps security intended for “business purposes.” Pursuant to contract, Northrup, with the defendant directed the installation of several wiretaps, place signs but did any premises attempt the or otherwise give any notice that public listening electronic devices had in- been likewise, Northrup, stalled. did not provide notice of kind. The testi- mony presented at the trial is in conflict as to the whether defendant actu- ally However, relied upon Northrup to provide public notice. testimony uncontradicted of all witnesses is that the wiretap was purposely night installed at that the employees so not be aware of the surrepti- tious device. eavesdropping
The jury statute, convicted the of violating defendant the wiretapping 1967 Perm. C.R.S. 40-4-28.1 Supp., On the defendant appeal, that the is unconstitutionally vague claims that the trial court placing erred in burden giving public of in- upon party who stalled the We affirm. wiretap. Now section C.R.S.
I. Giving Burden Notice legislature granted charged The an affirmative defense to those statutory wiretapping. Supp., with the offense of 1967 Perm. C.R.S. 40-4-31,2 that the crime of which is in in this provides wiretapping issue “prevent any person using was not intended to from or wiretapping case devices on his own eavesdropping premises security pur reasonable notice the use such devices is to the poses added.) public (Emphasis . ..” agent is uncontested
It defendant acted Northrup installing wiretap. instructing In as to the ele crime, adopted position ments trial court that the burden of giving “reasonable notice” to the could be placed party agree. who installed the We wiretap. legislature was specific delineating requirement
public notice as a precedent condition to the assertion of the “security defense purpose” wiretapping. to the crime of While the statute notice, does specifically designate not give who is to the statute does re quire that public given notice be if the affirmative defense is to be invoked. defense, The burden was on the who asserted the affirmative prove public given. that notice was The affirmative defense not take does effect until reasonable given public by agent, notice is to the owner, or some third party. cursory reading
Even a defense provision the affirmative wiretapping legislative statute reflects the intent that notice must the use of an secu accompany eavesdropping device for “business rity” to obtain the purposes statutory exemption liability. from criminal By placing the burden of proving that required given upon notice was statute, party charged under the all involved in parties “business secu activities, owners, rity” wiretap agents, whether as or independent con tractors, have seeing an incentive for that reasonable notice is to the rule; public. responsibility Criminal for wiretapping is the from exemption liability is the exception hinges upon giving which pub notice to the lic. permit agent
To
or independent contractor to escape liability
statute,
under the
provisions
substantive
of the wiretapping
simply by
pointing
give
notice,
to the failure of his
employer
requisite
be to
impose
agency
law of
into the criminal law. As we said in
277,
(1945):
People,
LaVielle v.
113 Colo.
548 course, a person acting employee “Of the fact that is as an of another con- stitutes defense in criminal prosecution charged no individual violated the law.” intentionally
Accord,
States,
(7th Cir.)
v.
F.2d
(employee
Wainer United
82
305
of il
legal
aff'd,
guilty
principal),
distiller
as
299 U.S.
57 S.Ct.
Johnston,
(1936);
L.Ed. 58
(7th
McNamara v.
F.2d 1157
Cir.
(“agent
liability
cannot be insulated from criminal
fact
by the
that his
principal authorized
conduct”);
State,
v.
his
Beachman
II. Vagueness The defendant also contends the statute is unconstitution ally vague, in that it fails to who responsibility giving delineate has the notice and does not “how is to given.” state notice The burden of proof on the notice issue already has been answered. contention statute is invalid because the manner of providing specified is not Garcia, also without merit. we said As 189 Colo. v. (1975): P.2d 687
“The burden of proof [beyond a is especially reasonable difficult doubt] where the party long seeks to attack a validity, statute’s facial so as there is potential no of freedoms, inhibition certain such constitutional as the freedom speech. of If such a statute is a range directed at substantial of conduct which is plainly within prohibition, its it will not be struck down vague merely because marginal imagined cases could be where might doubts arise in its application. Disputes con- [Citations omitted.] cerning application a marginal of criminal statute to cases can be more meaningfully according resolved to the rules strict construction statutory terms within the context the specific Only facts of the case. provides the statute defining no discernible all standards at proscribed conduct voiding should the harsh a statute on its remedy of added.) face be employed.” (Emphasis
The salutary principle recognition behind this rule is simply the that courts should to not seek discover means hold a to statute unconstitu Powell, 87, tional. See 316, United States v. 423 U.S. 96 S.Ct. 46 (1975). L.Ed.2d 228 We can no right discern fundamental which is trans gressed or by chilled the statutory proscriptions. Compare Civil Service Carriers, AFL-CIO, Commission v. National Association Letter
549
548,
Moreover,
2880,
(1973).
93
Finally, it is undisputed
absolutely
no notice was
provided
that,
fact,
wiretap
carefully
secrecy.
and
was
installed in
Even under the strictest construction of the
favor of
statute
the defend
ant, it is difficult
find
applying
a basis
affirmative defense which
requires that notice
when the uncontradicted
is
fact
that no notice
given.
was
The facts
this case fall outside the protective sphere of the
defense,
affirmative
and the defendant cannot complain of the existence of
Garcia,
marginal
more
hypothetical cases. See
v.
People
Based
supra.
considerations,
these
we find
defendant has not met the bur
den of establishing that the
unconstitutional beyond a reasonable
Blue,
See People
doubt.
v.
(1975);
Colo.
P.2d 385
v.
Summit,
183 Colo.
(1974).
The defendant’s other contentions are without merit. we
Accordingly, affirm. PRINGLE, HODGES, MR. CHIEF JUSTICE MR. JUSTICE MR. JUSTICE GROVES concur.
MR. JUSTICE LEE and MR. JUSTICE CARRIGAN dissent. MR. JUSTICE KELLEY does not participate.
MR. dissenting: JUSTICE LEE
I respectfully dissent.
In my opinion, the majority misinterprets 1967 Perm. C.R.S. Supp., (now 1973). 40-4-31 section C.R.S. That statute pro- vides: “* * * [A]ny person [may wiretapping or eavesdropping devices use] *5 premises his own security purposes for or business reasonable notice the use of such devices given to the public.”
The district court providing instructed the that the burden of reasonable notice the public defendant, to could placed be on who was em- ployed by wiretaps. the-owner to install the specifically does not admitting that statute while “the
The majority, burden notice,” bore the asserts that defendant give who designate is to given. disagree with this notice was defense that the affirmative proving of the statute. construction owner of legislature intended apparent
It is for the exempt responsibility from criminal installation would be premises In this property security purposes. on own wiretaps of situation, provided forbidden conduct would become lawful otherwise Had it public. notice to been intended that gives required owner (for make physically wiretap technician employed the mechanic or thereof, give legisla- required purpose) this lawful spoken. ture would have so view, reading 18-9-305(1), my place
The better section premises notice on the on whose whose giving person the burden of wiretap is installed. This construction purposes or business security get failing an accused for liability criminal imposing avoids contrast, majority that he act. In inter- statute does not command against in violation of admittedly ambiguous prets of due principles process. fundamental joins to state that MR. CARRIGAN
I am authorized JUSTICE this dissent.
No. C-902 Robert L. Gee v. Crabtree v. Cecil I. Crabtree Brigita
(560 P.2d Decided March