Poole v. StatePoole v. State
- Reporters:
- ,
- Before:
- Rabinowitz
Opinion
RABINOWITZ, Chief Justice.Aрpellant Joe Poole appeals the superior court’s affirmance of his conviction of disorderly conduct after trial by jury in district court. 1
One of the prosecution’s chief witnesses testified that а “great many things happen in the bottom of the S & S Apartments.” The truth of this statement is reflected in the factual circumstances of the case at bar which find their origin in an occurrence in the basement of the S & S Apartment complex located in Anchorage. In the early evening hours of January 8, 1972, Roy Smerdon, a private security guard, was patrolling the S & S Apartment complex in the company of a security trаinee, Stanley Sagerson. Alerted by noise and the sight of what appeared to be a pool of urine on the basement floor, Smerdon and Sagerson discovered Poole lying on the floor of an unlоcked locker in close proximity to a partially undressed female. As a proximate result of this discovery, a complaint was filed against Poole charging him with disorderly conduct in violation of former AS 11.4S.030. 2 This statute provides :
A person who (1) uses obscene or profane language in a public place or private house or place to the disturbance or annoyance of another; or (2) makes a loud noise or is guilty of tumultuous conduct in a public place or private house to the disturbance or annoyance of another, or is otherwise guilty of disorderly conduct to the disUirbance or annoyance of another, upon conviction, is guilty of a misdemeanor, and is punishable by a fine of not more than $300, or by imprisonment in a jail for not more than six months, or by both. (emphasis added)
The complaint filed pursuant to this disorderly conduct statute charged that Poole did “wilfully and unlawfully сonduct himself in a disorderly manner to the annoyance of Roy Smerdon by urination on the floor and conducting himself in a tumultuous manner, at S & S Apartments, Building 9, Anchorage, Alaska.” 3 Review of the prosecution’s evidence produced at the district сourt jury trial reveals that Poole was arrested on charges of disorderly conduct and trespassing after he failed to immediately respond to the inquiries of Smerdon and delayed in leaving the locker area. 4 Both Smerdon and Sagerson admitted that Poole did not give them any trouble, that Poole neither cursed, fought, shouted, abused, nor addressed them in a loud, boisterous, or tumultuous manner. 5 Of particular significance is the fact that neither Smerdon nor Sagerson testified that they were annoyed by anything they observed or by any aspect of Poole’s conduct.
After the prosecution rested its case in chief, Poolе’s counsel moved unsuccessfully for a judgment of acquittal, declined to
disorderly conduct and disturbance of the peace is an ancient criminal offense and although the drafting is not the best, I feel that, ‘. . . or is otherwise guilty of disorderly conduct . . . .’ would not be limited to either obscene or profane language or loud noise or tumultuous conduct. In fact I have some question whether this type of — thе evidence brought forth here could not fall in the category of tumultuous conduct if the fact finder was convinced the evidence was sufficient.
Being dissatisfied with the result obtained in the district court, Poole then аppealed to the superior court. In that appeal, Poole asserted
In his brief to this court, Poole has narrowed the focus of his appeal to an attack upon the constitutionality of
In Marks v. City of Anchorage 9 we held the city’s disorderly conduct ordinance unconstitutional on the grounds of vagueness and overbreadth in violation of the respective due process of law guarantees found in the United States and Alaska Constitutions. 10 We believe that Marks is disposi-tive of the constitutional issue raised in this appeal. 11
The touchstone which invokes the prohibitions of
Since the prefatory language of the ordinance, сontaining the mens rea for the specifically enumerated prohibited acts, is itself impermissibly vague, no part of the ordinance can stand. The defective prefatory language is ‘with purpose аnd intent to cause public inconvenience, annoyance or alarm or recklessly create a risk thereof.’ (emphasis added). Coates v. Cincinnati, supra, specifically declared the word ‘annoying’ to be unconstitutionally vague and the words ‘inconvеnience’ and ‘alarm’ are no less so. The rest of the ordinance is also peppered with indefinite words — ‘threatening’ ‘tumultuous behavior’, ‘unreasonable noise’, ‘offensively coarse’, and ‘abusive language’. The phrase ‘tumultuous behavior’, for example, might encompass conduct ranging from actual violence to speaking in a loud and excited manner; depending on the arresting officer’s temperament, everything from the most provocative insult to the mildest obscenity might be termed ‘abusive language’. 14
We adhere to
Marks
and hold that
Reversed.
Notes
. Poole was sentenced by the district court to serve five days in jail.
. This statute was re-written and substantially changed by the legislature in 1973 (am § 1 ch 63 SLA 1973).
. The complaint also contained the following statements:
This complaint is based on the statement of Roy Smerdon who observed the defendant laying with another person in the lockers of the building and the area of the floor where the defеndant had urinated. At the time of his observation the defendant liad the blouse of the other person open and was attempting to remove her rousers.
. No reason appears in the record furnished this court why the trespass charge against Poole was dismissed.
. As to the latter, Sagerson testified that he would not characterize Poole’s conduct as tumultuous.
. In its instructions to the jury, the district court set forth the provisiоns of AS 11.45.-030 and the text of the complaint. No attempt was made in the court’s instructions to define the pertinent terms employed in
. In its order affirming the judgment of the district court, the superior court said in рart:
After reviewing the file on this matter and the proceedings in the trial court regarding the same, this Court deems itself fully advised in the premises, and finds no reversible error.
. No brief has been filed in this appeal on behаlf of the State of Alaska.
. 500 P.2d 644 (Alaska 1972).
. United States Const., amend., XIV, § 1, provides in part: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .” Alaska Const., art., I, § 7 provides: “No pеrson shall be deprived of life, liberty, or property without due process of law.”
. Upon application for rehearing in Marls, it was argued that the Supreme Court of the United States in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), had upheld a statute which was similar to Anchorage’s disorderly conduct ordinance. This court declined to change its decision, being of the view that Gotten was outside the mainstream of recent decisions of the United States Supreme Court in this area of law. We note that the Supreme Court of the United States in its decisions since then has not relied on Gotten, but has since declared ordinances unconstitutional which were not limited in application to punish only unprotected sрeech. Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed. 2d 214 (1974); Plummer v. City of Columbus, 414 U.S. 2, 94 S.Ct. 17, 38 L.Ed.2d 3 (1973).
. The Cincinnati, Ohio, ordinance there in question made it a criminal offense for “three or more persons to assemble ... on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by. . . .” 402 U.S. at 611, n. 1, 91 S.Ct. at 1687, n. 1, 29 L.Ed.2d at 216, n. 1.
. Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214, 217, quoting Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926).
. Marks v. City of Anchorage, 500 P.2d 644, 652-653 (Alaska 1972) (footnotes omitted).
. We also recognize the strong likelihood that
Recently the Supreme Court of the United States refused to find a statute unconstitutional on the ground of overbreadth where only conduct was involved and where the statute had received a narrow interpretation. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). In the case at bar, no such narrow interpretation has been placed on the statute and no argument was made that it would be so interpreted. While we recоgnize that the United States Supreme Court appears to now require “substantial” facial overbreadth in cases where conduct as opposed to protected speech is involved, we lеave for a more appropriate occasion determination of whether this trend will be followed in construing the constitutional protection accorded to conduct under Alaska’s constitution.