*1 HA WAII BUTLER STATE OF v. WILLIS POLLARD
AND GEORGE P. SARANT. No. 4663.
May 22, 1969. Kichardson, C.J., Marumoto, Abe, Levinson, JJ., Judge Assigned
Circuit Hawkins Vacancy.
Season ABE, OPINION OF THE BY COURT J. facts following led to defendants’ arrest disorderly conduct in violation of HES 772-2.1 § On October President Johnson scheduled 17,1966, to deliver at an foreign policy speech outdoor area near Theater at Kennedy East-West on the Center, University campus. Hawaii As expected, crowd hours before the time gather started scheduled for the President’s arrival. Within the crowd were numerous their or holding signs indicating approval persons disap- President Johnson and the United States policy proval Particularly conspicuous large Vietnam. relating 772-2 reads: §HRS “Any provoke peace, person a or who with intent a breach of may occasioned, whereby following peace be commits breach of the deemed have committed the offense of dis- shall be acts orderly conduct: offensive, disorderly, threatening, insulting (1) abusive Uses * * language, or behavior conduct effigy man-size apparatus consisting figures hang- two *2 from ing crossbar. a
As the crowd to a grew group eight- the prior arrest, een “pro-Johnson” demonstrators was seen carrying signs way the weaving faction through “anti-Vietnam” which standing in protest signs the crowd with its and there was a the “jockeying” position between two groups. By time the and solidly packed crowd was it was difficult for anyone to move about.
The “anti-Vietnam” demonstrators were not received in a very gracious by manner who persons some were One such present. unidentified person was seen tearing down a held sign by “anti-Vietnam” demonstrator.
Another person was observed to trying rip portion twenty-foot banner are Agressor.” which “You the read, He released the banner and caused no more trouble upon being told aby police officer that he would be arrested if he did not do so. four Only specific statements which indi- cated felt anger by unidentified individuals viewing the “anti-Vietnam” materials were testified to the State’s out persons witnesses several thousand massed to- There were gether.2 “mumblings” also and “comments” “pinkies” such as “commies” and made by unidentified persons.
On cross-examination State witnesses admitted that these and alleged statements were made in comments moderate tone voice. There no threats to fight nor there any fighting, signs of violence or disturbance. The Honolulu police officers the site controlling had no problem crowd keeping order.
The officer in felt confident he could “handle if anything [developed].” the situation (a) “If the The were: don’t take banners four statements why (b) they down”;
down, “If them don’t like it here don’t I’ll take ; way ; go (e) Vietnam?” “Is to welcome President?” way (d) hell to show Americanism.” is a of a “This Butler occurred the follow- arrest defendant
ing fashion described one of the State witnesses:
“Q. Sgt. Kanekoa, Now, taking there, to Dr. up walked anything happened you when Butler? him
“A. I Mr. approached Butler and asked at me those and he looked remove please effigies, ‘I and he walked he and he will ‘What?’ says, said, not/ feet from him. away about effigies six [********]
“A. He walked and held on to one effigies him I him asked again followed poles. me I told him effigies. why? He asked remove those *3 among the effigies that disturbance causing these to re- and I him for the third time asked people there, refused. and he still effigies, move those he comply “I told him that if he does not that would he ‘Go ahead and arrest answered be arrested, me, me for?’ I told him to arrest you me—what do want conduct. And disorderly I him for that arrest he ‘I am not crowd and says, looked at the he then disorderly.’ police are disorderly; you? “Q. facing to he he was you, When told he crowd. facing “A. was No, “Q. how he you Could demonstrate made that statement? I
“A. him (Demonstrating) facing Well, his ges- he turned to the he used hand as a crowd, ‘I are.’ said, disorderly; police ture and he am “Q. if after that? anything happened What him effi- “A. Then I to remove those again warned I ar- received negative answer, and I still gies, conduct.” Butler for Mr. rested similar The arrest of defendant Sarant occurred fashion: anything you you ap-
“Q. What if did do when proached George Sarant? get going pole
“A. I told I am him, ‘Sarant, I told me told him and he law? evidence,’ what going Butler we need as as Dr. arrested. pole, “As I reached over retrieve the Mr. Sarant my brushed hands aside. George say anything
“Q. Did at Sarant that time?
“A. Yes. anything say? “Q. What if did he ‘people, “A. He state— said, look, look— Gestapo.’ you any reply
“Q. Did have to that?
“A. Yes. you say?
“Q. What did “A. I told him to cease his actions—if he doesn’t pole hand the I no over to would have other alter- me, but native him. arrest anything you
“Q. And did do? pole again, stepping “A. reached over pole. forward to retrieve the anything happened?
“Q. What if put stopped *4 “A. He hand out and me. his say you put “Q. When he his hand did out, how do that? he against my
“A. hand Placed his chest. anything “Q. happened? And what placed “A. him under arrest. placed
“Q. You who under arrest? George
“A. Mr. Sarant. you place
“Q. under Por did Mm arrest? being disorderly person.” “A. Por [********] prosecution’s defendants tbe case,
At tbe tbe close of ground judgments acquittal tbe that for of moved of matter law as a adduced insufficient evidence prove was disorderly reserved Tbe court conduct. of after renewed motion was on motion. This its decision tbe continued tbe court tbe but tbe defendant’s case, close on tbe motion. to reserve decision disorderly guilty of Tbe found tbe defendants judg- again tbe moved conduct. defendants Thereafter, acquittal. trial denied. Tbe The motions were ments of guilty adjudged defendants and tbe court tbe defendants appealed. engaged in that activities
Tbe State tbe concedes request time tbe tbe lawful at tbe was defendants were effigies; tbe State contends made to remove tbe however, police requests responses tbe tbe constituted that the disorderly language and conduct a breach peace might tbe followed the direct have result. compels
Our examination of the State’s evidence us disorderly that a conclude conviction cannot conduct be sustained. argued defendants tbe
Evidence that with in an obey insolent and rude manner and that refused to did not constitute conduct orders without ad showing peace that a breach ditional evidence was Thompson likely City to occur. 362 U.S. Louisville, By touching arresting tbe officer Sarant because commit tbe offense tbe evidence did not fails to touching threatening done in a that tbe was violent, show fighting we believe tbe Also, manner. peace show a breach insufficient *5 Although sporadic imminent. there demon- acts strating disagreement part sympa- on of those thetic to the of the “anti-Vietnam” views demonstrators, any evidence fails to show violence or real threat of vio- any loss of control of the crowd or fear lence, policemen minds of the that the situation become uncontrolled. The can most that be said appeal evidence in the the defendants’ record here is that generated mutterings anger by per- conduct some some in the assembled sons audience. legislature we believe that did not intend
Further, complained proven the actions the defendants of and at the trial to constitute the crime of conduct. Otherwise it of little would be value to hold one has a right peacefully lawfully constitutional to dissent pain it can be done of arrest and trial. Supreme United Court held Terminiello States merely Chicago, speech (1949), 337 U.S. that a people brought anger, public dispute, or
“stirred invited may and stated about a condition of unrest” not stand, page at 4: system speech,
“[A] function of free under our may government dispute. is to invite It indeed best high purpose serve its when it condition of induces creates dissatisfaction with conditions as unrest, people anger. Speech pro- is often or even stirs are, challenging. may prejudices at vocative strike preconceptions profound unsettling and have acceptance presses of an effects as idea. That is * * * * * * speech why protected against freedom censorship punishment, likely pro- shown unless present danger duce a clear and serious substan- public that rises above tive evil an- inconvenience, far * * * noyance room or unrest. There is no under our for a more restrictive For the alter- view. Constitution
native would lead to standardization of ideas either legislatures, dominant courts, political or com- munity groups.”
Terminiello was followed in recently Tinker v. Des Moines Independent School Community District, U.S. 503 (1969). the court There, stated that “undifferenti- ated fear or apprehension of disturbance not enough to overcome the right to freedom of expression.”
The appeal record here no shows more than that defendants’ conduct caused persons some the assembled to utter crowd angry remarks. We cannot say from the evidence adduced that the defendants beyond went permissible bounds free defined in Terminiello speech and Tinker and, we hold did not commit therefore, the offénse of disorderly conduct.3
We hold that the State failed to marshal sufficient a charge sustain of disorderly conduct, the trial erred in judge not having entered judgments of acquittal upon the conclusion of State’s case.
Reversed and remanded with directions to vacate the judgments of guilt and to enter judgments of acquittal.
James A. & King (Bouslog Symonds for counsel) defendants-appellants.
Dermis A. Deputy Ing, Prosecuting City and Attorney, County of Honolulu (John U. Attor- Peters, Prosecuting ney with him on the brief), plaintiff-appellee.
Richard P. Jr. Schulze, R. (Michael Sherwood with him on the brief), American Civil Liberties Union, amicus curiae. LEVINSON,
CONCURRING OPINION OP J. I concur in the result reached by the I majority. be- lieve, issues raised in however, this case are of 3 Thus, required constitutionality it is not that we rule on the the statute. to merit further discussion. sufficient importance to the am prosecution, fairness Before proceeding, from the fill in omission ma- egregious an compelled The did effigy apparatus of the facts. jority’s statement fig- undifferentiated man-size consist of two simply im- ures from a the court’s hanging opinion crossbar as very provocative On the plies. effigies contrary, cowboy in nature. in a hat and boots One dressed effigy, and labeled its neck a noose hanging by “LBJ”, in a figure death-like stance. other armless effigy, wearing military dressed khaki-colored clothing and neck was labeled cap, “Pentagon” hanging *7 in a fashion. On the cross- similarly gruesome from a rope “NUEEMBUEG JUSTICE FOE sign reading bar awas The defendants were those among WAB CBIMINALS.” the effigies. control over maintaining although
Also it be noted there were at that, should to the assigned 130 Honolulu Police officers East- least ten that number assigned of West Center, to the individuals confine their attention area where picketing. Motion Decision on Judgment
A. Reservation of Acquittal. of committed the trial by error was judge, apparent
An the defendants. by as such specified it was not although Procedure do not appear Eules of Criminal The Hawaii a on a motion for of decision for the reservation to provide the close following is made acquittal of judgment See Eule H.B.Cr.P., 29(a). evidence. prosecution’s of decision in the rules for reservation The only provision all evi- the close of the following made a motion relates to It would 29(b). seem, therefore, Eule H.B.Cr.P., dence. made at the acquittal of judgment motions
that all by be decided evidence should prosecution’s close the If the pre- trial continues. before the judge sented prosecution is insufficient sustain a con- the State has not met viction, its burden proof, have serious doubts defendant in about a forcing such circumstances to go through the needless and burden- some task of meeting charges against him. See Jack- son United (5th 250 F.2d Cir. States, 1958).
B. Test on in Appeal Criminal Cases. in majority correctly my has concluded, opinion, that “the State failed marshal sufficient evidence to sustain a charge There conduct.” how- is, large a in ever, gap analysis of case. is its this Nowhere it indicated test it what is and how applied the court to arrive at conclusion. The fact that defense counsel other any times) case case recent (or had has not this issue for our foresight pinpoint consideration not give ignore does us reason to it. In on sufficiency criminal case where appeal question of the evidence to a into support conviction comes play, necessary concomitant is a test which considers the evi- in a favorable light prosecution dence most to the legal measures it against standard which should have been met before the to decide permitted upon If the guilt practicing innocence defendant. bar the needed given guidance the test is *8 and is how can defense function, expect how we coun- sel to and in properly isolate discuss the relevant issue a client’s conviction? appealing Vague, generalized, opinions emanating from this court can porous only con- not clarify. It enough strictly is decide found, cases case-by-case using on a basis unknown standards or those ourselves as must known we strive judges; consistency.1 I think in clarity known we are derelict appellate bring question squarely time that counsel be 1 It is may emerge fog that we fore us so bants avoidance to enlightenment. sunshine of
189 our the needed clarification. duty delay any longer we
A state the perusal opinions this court’s test in applied reviewing singu be a conviction discloses lar lack of precision describing test is. has recently been there described as “whether is sub simply stantial evidence to the verdict.” State support v. Kekau 50 Haw. 433 P.2d alua, State v. 130, 132, 131, 133 (1967); 49 Haw. 423 2dP. 445 Cummings, 522, 533, 438, However, this court with Cummings, repeated approval the test given in State v. 45 Haw. 361 Carvelo, 16, 33, P.2d 54 45, (1961) as follows: “a verdict case involving evidence conflicting on the depending deter mination of credibility of witnesses or the weight of the evi dence is invulnerable when attacked on if there appeal any substantial to more than a amounting mere scintilla tending support findings necessary verdict rendered.” (Emphasis added.)2
Today reaffirm that a jury rule verdict of guilty must be by the accepted court if appellate its find- ings are supported by “substantial evidence.” However, I believe the use of the term more than a mere scintilla in describing nature of substantial evidence is confusing and should hereafter be avoided. The phrases two are patently inconsistent. Dictionary Black’s Law 4th (Rev.
ed. 1968) defines “scintilla of evidence” as “a metaphori- 2 Numerous variations of the scintilla rule have been stated in the following Hawaii cases:
Territory Territory Bo, 718, (1917) v. Lam 23 Haw. 719 Young, Legaspi, 628, (1933) v. v. 32 Haw. 634 Territory 660, (1953) 39 Haw. 664 Foster, 403, 409, 960, (1960) State v. 44 Haw. 354. P.2d 964 Sorenson, 601, 610, 289, (1961) State v. State v. State v. State 44 Haw. 359 P.2d 294 Carvelo, 16, 45, 33, (1961) 45 Haw. 361 54 P.2d 206, Yoshino, Hassard, 219, 364, 638, (1961) 45 Haw. P.2d 365 P.20 646 221, 231, 202, (1961) v. 45 Haw. 207 Arena, 315, 324, 594, (1963) State Haw. 379 P.2d Cummings, 522, 534, (1967) State v. 49 Haw. 423 P.2d
cal expression to very insignificant describe a or trifling item or of evidence.” particle “More than a scintilla” has been equated by this court “more than mere trifle or suspicion of guilt of the offense charged.” Territory v. 39 Haw. Legaspi, appear that comparing substantial evidence with words which mean an insignificant quantum tois use anomalous rhetoric.
Furthermore, appeal test criminal cases as heretofore applied by this court does not seem to be accu- rately described the label substantial evidence amount- ing more than a scintilla. mere The present case is a good example. The court’s opinion supplemented by mine a detailed recites description of relevant and mate- rial evidence introduced for the purpose dis- showing orderly conduct. There were the provocative and distaste- ful effigies surrounded aby solidly packed crowd contain- ing sharply divided factions. The demon- pro-Johnson strators were obviously not sedentary or altogether peace- ful. They were weaving way their through en crowd masse and jockeying with the anti-Vietnam group for a position close to the speaker’s stand. of their Some number tore down anti-Vietnam signs attempted rip anti-Vietnam banner. There were angry mutterings and comments. There ten were only policemen assigned to the containing area There pickets. physical contact between Sarant and a officer initiated police the former in his efforts to resist seizure of the effigies. It is not the responses by inconceivable the defendants to the and the continued police requests an uncon- effigies might triggered have display There is among people gathered. disturbance trolled A fair ap- such conclusion. support some in a result my opinion, of the evidence would, praisal trifle” of evi- more “than a mere there was finding *10 a i.e. to show serious disturbance was imminent, dence to support that there more than a mere scintilla the the And the charge. court reverses convictions while yet, the scintilla rule unscathed and intact. If leaving my brothers that State feel “the failed marshal sufficient evidence sustain a conduct” be- cause was not there more than a scintilla evidence to the sustain that charge, phrase are the using submit “more a than mere scintilla” as undefined term of art meaning whose can be that which is more than a quantum which itself is more than literal a scintilla.
is this sort of paradox which the demonstrates uselessness and confusion from resulting the continued existence of the scintilla rule.
The “substantial evidence” required to
the
support
jury
verdict of guilty
to be
ought
that which
justify
reasonable trier of fact
in finding that
the defendants
guilty
the crime charged beyond
reasonable
any
doubt.3 A significant
jurisdictions
number of other
fol
United
low this rule.
States v.
See,
Hall,
example,
844
F.2d
Cir.
United
841,
(4th
1968); Nagell
396
v.
States,
935
People
F.2d
Cir.
v.
934,
(5th
1968);
392
70
Bassett,
Cal.
193 at 203-04
In one
Rptr.
(1968).
v.
case, Territory
192
dom of this case has been left fallow follow- years ing that opinion.
The term substantial evidence cannot the equiva be lent of evidence. reasonably The evidence must be capable of being believed “of legal ponderable so In re 2d significance,” Teed's Cal. Estate, App. 638, 644, P.2d
As long as there is a re- guilt reasonable doubt as to at maining the close of has evidence, prosecution failed to discharge burden of proof. Therefore, *11 trial court is error if it a motion for judgment denies of acquittal in such circumstances.
This does not the court to approach require appellate conflicting practice by reconcile a proscribed evidence, 39 492 does it v. nor Territory Ebarra, 488, Haw. (1952), interfere on the require us to a decision with based of weight determination the or the credibility witnesses v. 45 at conflicting Carvelo, 33, State Haw. evidence, 361 sufficiency P.2d at 54. of the only legal looks the evidence to meet the full required assuming standard, to the weight given evidence most favorable to the prose cution. that court has always healthy
I shown a recognize the can be argument decisis and stare respect scintilla rule been eternal life. given made that the has any “doctrine disability think should reject this court v. 309 U.S. at self-correction.” Helvering Hallock, 106, we per Stare decisis does not command that (1940). our errors. petuate
C. Conduct the Defendants. the responses the contends State and conduct language the constituted requests might have followed peace breach a from which In foregoing test applying result. the direct as discussed the court’s opinion supple- mented trier fact certainly reasonable herein, have had a reasonable doubt as to the of the de- guilt fendants.
Since it is conceded the State that the activities engaged by the defendants were lawful at time request was made to remove the request by effigies, officer can be only viewed had no force of as one which law to compel It can compliance.4 be seen as no more than an attempt exercise autocratic power by fiat. To call the arrests subsequent process “due of law” would be ... are to be made diaphanous euphemism. “Laws chosen make representatives laws for the future, by police officers duty whose is to enforce laws already enacted and to make arrests for conduct already made criminal.... To let a policeman’s command become equivalent to a criminal statute comes dangerously near our making government one of men rather than of law.” Gregory 89 S.Ct. Chicago, (Concur- ring Opinion of Black, J.).
Even had though police requests no force legal them, negative response behind could, have conceivably, *12 conduct if constituted the response had been made with the intent or likelihood that a breach of the peace would result from it. there is no evi- However, dence showing such intent and insufficient evidence to case. likelihood this The refusal to obey a po- show cannot constitute disorderly se per lice order conduct. 19 N.Y.2d 278 N.Y.S.2d
People Smith, 212, earnestly vigorously That the defendants protested point argument The inference oral State conceded when justified agreed the arrests would not have been the defend- quietly effigies politely had declined to when ants remove asked. their to be doubted. But incarceration is not impending inno- many spirited these more than protests nothing cent would cannot be persons naturally offer, no threaten- justify illegal made arrest. There was the defend- abusive obscene used ing, language ants. only queries against There were and protests police action. HAWKINS, CIRCUIT OPINION OE JUDGE.
DISSENTING dissent. respectfully on the that occurred acts of defendants ugly to the arrival of the of Hawaii University prior campus States incite of the United President To this from to violence. prevent American red-blooded that are officer made the arrests the police happening, of fact my questions In challenged. opinion, being now determination. jury’s for the posed guilty charged. verdict of jury’s affirm I would