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Turney v. State (4/4/97), 936 P 2d 533
<![CDATA[
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska, 99501, telephone (907) 264-0607, fax (907) 264-
0878.
THE SUPREME COURT OF THE STATE OF ALASKA
FRANK W. TURNEY, ) Supreme Court No. S-6932
)
Petitioner, ) Court of Appeals No. A-5852
)
v. ) Superior Court No.
) 4FA-94-3007 Cr
STATE OF ALASKA, )
) O P I N I O N
Respondent. )
______________________________) [No. 4799 - April 4, 1997]
Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the
Superior Court, Fourth Judicial District,
Fairbanks,
Ralph R. Beistline, Judge.
Appearances: J. John Franich, Assistant
Public Advocate, Fairbanks, and Brant McGee,
Public Advocate, Anchorage, and Deborah
Niedermeyer, Fairbanks, for Petitioner. Eric
A. Johnson, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Respondent. Rachel King,
Anchorage, for Amicus Curiae Alaska Civil
Liberties Union. Leonard J. Karpinski,
Anchorage, for Amicus Curiae Fully Informed
Jury Association.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Frank Turney was charged with jury tampering under AS
11.56.590 and criminal trespass under AS 11.46.330(a)(1), as a
result of his activities in and near the State Courthouse in
Fairbanks. We here consider whether the jury tampering statute is
unconstitutionally overbroad or void for vagueness. We also
consider whether Turney could commit a criminal trespass on public
property at a time when the property was open to the public. The
superior court denied Turney's motion to dismiss the charges. We
granted his petition for hearing to consider these issues. We
affirm.
II. FACTS AND PROCEEDINGS
A. Facts
1. Court premises
On May 9, 1994, the Alaska Court System Area Court
Administrator, Ronald Woods, gave Turney a letter concerning his
activities in and near the court building. It stated:
Dear Mr. Turney,
You have utilized court property as a
public forum. Moreover, the manner in which
you have done this is disruptive of court
business. Citizens and court staff have
complained that you have aggressively accosted
them on and immediately adjacent to court
property in a manner they found threatening.
You have pounded on the building's walls,
windows, and doors. You have shouted, blown
whistles, and made animal noises with the
intention of attracting or distracting the
attention of jurors and other persons in the
building.
You are welcome in and upon the court's
premises to peaceably conduct court business
or to observe court proceedings. However,
court property is a non-public forum. You are
prohibited from entering or remaining on court
property to engage in protest activities,
picketing, or pamphleteering. You are
prohibited from entering or remaining on court
property to erect signs on the premises. You
are prohibited from making excessive noise
that disrupts or interferes with court
business.
Court property extends to the street
curbs surrounding the courthouse. The
sidewalks encircling the courthouse are a
traditional public forum, subject only to
reasonable time, place, and manner
restrictions. Accordingly, you may use the
sidewalks as a forum. However, whether on
court property or adjacent to it, you are
prohibited from impeding access to the
building by other persons, either by physical
or verbal means, and you are prohibited from
making excessive noise which disrupts or
interferes with court business.
These prohibitions apply to any
individual which [sic] attempts to utilize
court property for a purpose other than the
conduct of court business.
Should you engage in prohibited activity,
you will be subject to arrest and prosecution.
2. Juror contact
On July 14, 1994, a jury was selected at the State
Courthouse in Fairbanks in the case of State of Alaska v. Merle
Hall. Merle Hall was to be tried under AS 11.61.200(a)(1), which
prohibits convicted felons from knowingly possessing a concealable
weapon. Frank Turney was then in the courthouse, as he often was,
promoting what he argues is his "political point of view on the
jury system." His advocacy included signs, leaflets, discussion,
and demonstrations. He also publicized the telephone number of the
Fully Informed Jury Association (FIJA). (EN1) Turney was
apparently interested in the Hall case because he was a friend of
Hall's and was also a critic of AS 11.61.200(a)(1), having been
convicted in Oregon in 1975 of being a felon in possession of a
firearm.
The attorney defending Hall, William Satterberg, was
familiar with Turney and saw him at the courthouse the day of jury
selection. Turney was in the courtroom during jury selection. The
Assistant District Attorney testified that "Frank pretty much
monitored that trial from jury selection through verdict."
The judge presiding over the Hall trial, Judge Jane
Kauvar, instructed the jurors that it was their duty to follow the
law. The jurors were given a pamphlet entitled the Alaska Trial
Jury Handbook soon after they began their jury service, and were
shown an orientation video. "Juror"is statutorily defined to mean
"a person who is a member of an impanelled jury or a person who has
been drawn or summoned to attend as a prospective juror." AS
11.56.900(3).
Turney's jury tampering charges concerned his contacts
with three jurors: Coty, Flood, and Ellis. (EN2) Turney
approached Juror Coty and other jurors while they were near the
elevators on the fourth floor of the court building, the floor
where the jury was to be selected. From about fifteen feet away,
Turney told them to call the 1-800-TEL-JURY number. Some jurors
were wearing juror badges that identified them as jurors; jury
selection had apparently not yet commenced.
While driving home the next day, Satterberg saw Turney
walking. Satterberg gave him a ride hoping Turney could tell him
something about a break-in at Satterberg's office. During the
drive, Turney mentioned that he had gone fishing with "one of the
jurors"in the Hall case. He did not identify the juror or say
when the fishing trip had taken place.
The Hall trial was held on Monday, July 18. It lasted
about three hours. Jurors Flood, Roit, and Ellis went outside the
court building to smoke. At least one was wearing a juror badge.
Turney approached them, and told two jurors to call the FIJA
telephone number. He said he wanted to know if they knew what
their rights as jurors were. Jurors Flood and Roit ignored Turney.
The jury began deliberations, but did not reach a verdict.
During deliberations the next day, Juror Ellis told other
jurors that he had called the number, (EN3) and that he was
changing his vote. He told them that "I can vote what I want." He
also told them that they should call the number. (EN4)
Satterberg saw Turney outside the courthouse in the late
afternoon or evening of July 18. Turney mentioned the status of
the jury, and said something that caused Satterberg to comment:
"Frank, you know, I don't want to know about that stuff, it's
something that would be improper. . . . [I]f you're telling me that
you've been talking to any jurors, I'm going to have to report you.
. . . [B]ut, if you're bullshitting me, then that's a different
story." Satterberg stated that Turney just smiled, and said "it's
all bullshit."
Turney called Satterberg that evening concerning the
break-in. Satterberg testified that during one of their July 18
conversations, Turney said something to the effect of "you have a
hung jury, and I know how they stand."
The jury announced the next morning that it could not
reach a decision, and was excused. Jury Foreman Romersberger
testified that two jurors had changed their votes to "not guilty"
after speaking with Turney or calling the number, (EN5) leaving the
jury deadlocked at eight "guilty"votes to four "not guilty"votes.
He testified that the jurors who had switched stated that "their
conscience was greatly relieved, and they were going to vote their
conscience."
After the court excused the jurors, Satterberg spoke to
several in the hallway. Turney was in the immediate vicinity, and
may have been talking to other jurors.
That same day, after the jury had announced its inability
to reach a verdict, Turney called in to a radio talk show. He
telephoned the show "to express his opinion that Hall should not
have been prosecuted for possessing a concealable firearm since
Hall previously had been convicted only of a non-violent felony."
Satterberg later had another conversation with Turney
about the jurors. Satterberg testified that during this
conversation, he
pointed out to Frank that it was very serious
to be dealing with a jury while a jury is in
process. You can talk to 'm before, you can
talk to 'm afterwards. And we got into a
discussion about how he felt that he had a
constitutional right to educate the jurors on
the jurors' rights issues. And he and I had a
difference of opinion on that issue, on the --
on the fully informed jury situation. And he
kept saying that it was an educational thing.
In a July 20 telephone conversation with Satterberg,
Turney recanted his earlier denial of involvement with the jurors.
Satterberg paraphrased Turney's statement to him as: "I know I
told you I was bullshitting you; but . . . I wasn't. I did talk to
the jurors, and you can tell Judge Kauvar, if you want, and you can
report me, if you want."
Later that day the Hall prosecutor, Assistant District
Attorney Jeffrey O'Bryant, ran into Turney outside the court
building. Turney told O'Bryant that he had spoken with the jurors
about FIJA. Turney admitted he knew that they were jurors in the
Hall case. O'Bryant told Turney that if he had had contact with
the jurors, O'Bryant had
an ethical obligation and duty to advise Judge
Kauvar of -- of the type of contact, whatever
it was, that took place. Frank acknowledged
to me that -- basically, that he had contact
with two or more jurors here in the hallway
during the course of the trial, and that he
had contact with three of the jurors out in
front of the courthouse. And I believe that
was -- that was also during the course of the
trial. . . . He did indicate to me, though,
that he -- the subject matter of his
conversation with the jurors was the Fully
Informed Jurors' Association beliefs or
credos. The a -- basically, a right to vote
your conscience. And his making them aware of
that organization. He didn't recall whether
he disseminated any -- disseminated any
brochures or -- or written material to them.
B. Proceedings Below
A grand jury indicted Turney on three counts of jury
tampering under AS 11.56.590; he was also charged by information on
two counts of criminal trespass in the first degree under AS
11.46.320(a)(1). The superior court denied Turney's motion to
dismiss the charges. In doing so, the court construed the intent
provision of the jury tampering statute "to prohibit communications
with a juror only when the defendant's primary intent is to
influence a juror's vote, opinion, decision or other action as a
juror in a particular case." The court of appeals denied Turney's
petition for interlocutory review. Turney then filed a petition
for hearing in this court. We granted his petition to consider
several issues.
III. DISCUSSION
A. Standard of Review
The constitutionality of the jury tampering statute "is
a matter of constitutional and statutory interpretation in which
the appropriate standard of review is this court's independent
judgment." In re Inquiry Concerning a Judge, 762 P.2d 1292, 1293
(Alaska 1988). The criminal trespass issue raises a question of
law which we review de novo. Langdon v. Champion, 752 P.2d 999,
1001 (Alaska 1988). The court adopts "the rule of law that is the
most persuasive in the light of precedent, reason, and policy."
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
B. Does AS 11.56.590 as Written Criminalize Constitutionally
Protected Speech?
The Alaska Constitution and the United States
Constitution both protect freedom of speech. (EN6)
Turney first argues that Alaska's jury tampering statute,
AS 11.56.590(a), is void for overbreadth because it criminalizes
constitutionally protected speech. Alaska Statute 11.56.590(a)
provides:
(a) A person commits the crime of jury
tampering if the person directly or indirectly
communicates with a juror other than as
permitted by the rules governing the official
proceeding with the intent to
(1) influence the juror's vote, opinion,
decision, or other action as a juror; or
(2) otherwise affect the outcome of
the official proceeding.
A statute regulating speech is overbroad, and thus
unconstitutional, "when constitutionally protected conduct as well
as conduct which the state can legitimately regulate are included
within the ambit of [a] statute's prohibition." Marks v. City of
Anchorage, 500 P.2d 644, 646 (Alaska 1972) (holding that a breach
of the peace statute was overbroad). A defendant need not show
that his conduct was itself protected as a prerequisite to
attacking such a statute as overbroad or vague. Gottschalk v.
State, 575 P.2d 289, 290 n.2 (Alaska 1978).
The superior court considered and rejected Turney's
overbreadth argument. It reasoned that because the statute is
"theoretically broad enough"to encompass a courthouse picketer
whose "primary intent"is to convey a political message and who has
"a subsidiary or incidental intent"to influence passing jurors,
the statute raised overbreadth "concerns." The court nonetheless
held the statute to be constitutional because the intent provision
of the statute "must be interpreted to prohibit communications with
a juror only when the defendant's primary intent is to influence a
juror's vote, opinion, decision, or other action as a juror in a
particular case."
Turney argues that the language of AS 11.56.590 is
extremely broad, (EN7) and that as a result it criminalizes
constitutionally protected speech. Turney argues that
the Alaska Legislature enacted a statute which
did not link the crime of jury tampering to
communications intended to influence a juror's
actions with regard to a particular case, (as
the Superior Court wrote into the statute),
but instead quite deliberately and carefully
criminalizes communications intended to
influence any of a juror's actions as a juror.
He further argues that "[a]n examination of AS 11.56.590 through
the lens of First Amendment rights reveals a law with a reach so
wide that virtually any communication to a juror may be criminal.
. . . Moreover, the statute criminalizes such statements no matter
where, no matter how they are uttered." According to Turney, the
legislature's failure to limit the statute's reach to
communications intended to influence a juror's "action in a case"
renders the statute unconstitutionally overbroad. Turney also
argues that the superior court could not permissibly rewrite the
statute by inserting the words "in a particular case"to narrow its
scope. (EN8)
In deciding whether AS 11.56.900(3) is overbroad, we must
first determine the precise boundaries of the speech the statute
prohibits. See State v. Linares, 655 A.2d 737, 747 (Conn. 1995).
Then we must decide if any speech that is protected by the First
Amendment falls within the ambit of the statute's prohibition.
Professor Tribe comments that
overbreadth analysis ordinarily compares the
statutory line defining burdened and
unburdened conduct with the judicial line
specifying activities protected and
unprotected by the first amendment; if the
statutory line includes conduct which the
judicial line protects, the statute is
overbroad and becomes eligible for
invalidation on that ground.
Laurence H. Tribe, American Constitutional Law sec. 12-27, at 1022
(2d ed. 1988).
Turney overestimates the breadth of the statute as
written. Subsection (a)(1) is limited to communications "with a
juror"made with the intent to "influence the juror's vote,
opinion, decision, or other action as a juror. . . ." (Emphasis
added.) The words "vote, opinion, decision"specify salient
components of the principal duty of a juror -- to decide the
outcome of the case. The phrase "or other action as a juror,"must
be read in the context of those specified juror functions; it
connotes juror activities that carry out the responsibilities
entrusted to the juror. The emphasized language thus requires an
intention to influence a juror in the context of performing the
juror's duties.
Alaska Statute 11.56.590(a) does not prohibit
communication with jurors that is "permitted by the rules governing
the official proceeding." (Emphasis added.) The words "the
official proceeding"further limit the scope of the prohibited
communication with jurors to the context of their participation in
an actual, specific proceeding.
Likewise, these words convey a notion that the statute
prohibits communications intended to transmit substantive messages
(i.e., those that affect deliberations) not permitted by the
governing rules. Subsection (a)(1) thus prohibits communication
with jurors, other than that permitted by the governing rules,
conveyed with the intent to influence a juror in his or her
capacity as a juror in reaching a decision in a particular case.
Moreover, the word "official"would be superfluous
(because a court "proceeding"is intrinsically "official") unless
it were read to strengthen the notion that the communications must
be intended to affect how jurors conduct themselves in an actual
("the") proceeding.
Subsection (a)(2) reaches communications made with the
intent to "otherwise affect the outcome of the official
proceeding." The word "otherwise"conuage of subsection (a) leaves
no doubt that it is directed at communications intended to affect
how the jury decides a specific case.
Turney asserts that the statute is defective because it
is not limited, as are equivalent statutes elsewhere, to actions in
a particular case. Our reading of AS 11.56.590(a), however, leads
us to conclude that it is limited to particular matters. It
therefore would not reach institutional messages that are broadcast
to the general public on such topics as the adverse effects of
insurance fraud or the wisdom of tort reform.
Here the three jurors had been part of the venire called
specifically for selection and possible participation in the Hall
jury. Reading the statute to include potential jurors who have
been summoned specifically to participate in the jury selection
process for a particular case, but who have not yet been selected
for duty in that case, would not infringe upon constitutionally
protected speech.
To support his argument that AS 11.56.590 as written
criminalizes protected speech, Turney lists hypothetical statements
he claims that statute criminalizes. (EN9) This effort is
unavailing because it is the intent to influence the outcome that
is critical. Whether such statements violate the statute turns on
the intent of the utterer; a misguided or erroneous suggestion does
not violate the statute absent the prohibited criminal intent.
In its amicus brief, the Alaska Civil Liberties Union
(AkCLU) discusses several hypothetical situations regarding
activity that it argues could be deemed to violate AS 11.56.590.
For example, it contends that if FIJA ran TV ads with the purpose
of informing residents of Fairbanks about jury nullification, and
a prospective juror happened to watch those ads, the jury tampering
statute would be violated. Such hypothetical situations do not
illustrate any statutory overbreadth. None of AkCLU's examples
involves a specific intention to influence how jurors decide a
particular case. The State responds that AkCLU is incorrectly
arguing that AS 11.56.590 does not require the State to prove a
mens rea apart from the specific intent to influence a juror's
actions. The State argues that the State must also prove that the
defendant knew that he was communicating with a juror before he can
be found guilty of jury tampering. The State argues that such
knowledge is an historic requirement of the offense (citing, e.g.,
Commonwealth v. Riley, 172 A. 22, 24 (Pa. Super. 1934), and
Pettibone v. United States, 148 U.S. 197, 206 (1893)). In
addition, a drafter assumes that, "under ordinary circumstance, the
mental state of 'knowingly' must be proved with respect to the core
conduct of each offense." See, e.g., Johnson v. State, 739 P.2d
781, 783-84 (Alaska App. 1987). We agree.
Speech aimed at influencing the juror's conduct as a
juror, i.e., the juror's execution of the responsibilities imposed
by the trial court in a particular case, is not constitutionally
protected. Justice Frankfurter noted that
In securing freedom of speech, the
Constitution hardly meant to create the right
to influence judges or juries. That is no
more freedom of speech than stuffing a ballot
box is an exercise of the right to vote.
Pennekamp v. Florida, 328 U.S. 331, 366 (1946) (Frankfurter, J.,
concurring).
Other courts that have looked at the issue have also
recognized that utterances involved in the obstruction of justice
are not protected by the First Amendment. In rejecting an
overbreadth and vagueness habeas challenge to a witness tampering
statute, the federal district court in New Hampshire held that the
defendant's interest in communicating with a potential witness with
the intent to tamper was "minuscule"and outside the scope of First
Amendment protection. Kilgus v. Cunningham, 602 F. Supp. 735, 739-
40 (D.N.H.), aff'd, 782 F.2d 1025 (1st Cir. 1985). The Florida
Court of Appeals similarly concluded that "[e]fforts to influence
a grand jury in its deliberations respecting specific matters under
investigation by it are not shielded by the constitutional
guarantee of free speech." Dawkins v. State, 208 So. 2d 119, 122
(Fla. App.), cert. denied, 393 U.S. 854 (1968). In concluding that
the presence of spectators wearing "Women Against Rape"buttons at
a rape trial deprived the defendant of a fair trial, the Ninth
Circuit noted that "[w]here fair trial rights are at significant
risk . . . the first amendment rights of trial attendees can and
must be curtailed at the courthouse door." Norris v. Risley, 918
F.2d 828, 831 (9th Cir. 1990).
We conclude that because AS 11.56.590 is narrowly drawn
and proscribes only speech intended to influence a juror in his or
her capacity as a juror in a particular case, it does not reach
speech protected by the First Amendment, and thus is not
impermissibly overbroad.
In Marks, 500 P.2d at 647, this court discussed the
limited circumstances in which certain categories of speech could
be punished. The court gave several examples of speech that could
be criminalized, because it was not within the protection of the
First Amendment:
For example, erotic speech might be punished
as obscenity if the tests promulgated by the
Supreme Court are met. Similarly, a person
may be punished for uttering "fighting words"
which are likely to provoke a violent reaction
when addressed to an ordinary citizen or for
intentionally provoking a crowd to hostile
reaction under circumstances where a clear and
present danger of immediate violence exists.
Presumably a state could also limit speech or
assembly in specific places under limited
circumstances, as, for example, in a courtroom
while the court is in session.
Id. (emphasis added). The emphasized language confirms that speech
that affects the judicial process can be limited; it follows that
speech intended to subvert the jury's deliberations, and thus its
verdict, can be prohibited.
We consequently hold that the jury tampering statute is
not unconstitutionally overbroad. (EN10)
C. Is AS 11.56.590 Void for Vagueness?
Turney next argues that AS 11.56.590 is void because it
is unconstitutionally vague. As we said in Marks "the [void for
vagueness] doctrine comes into play when the statutory language is
so indefinite that the perimeters of the prohibited zone of conduct
are unclear . . . . A vague statute violates the due process
clause . . . ." Marks, 500 P.2d at 646. "Vague laws in any area
suffer a constitutional infirmity. When First Amendment rights are
involved, we look even more closely lest, under the guise of
regulating conduct that is reachable by the police power, freedom
of speech or of the press suffer." Gottschalk, 575 P.2d at 294
(quoting Ashton v. Kentucky, 384 U.S. 195, 200 (1966)).
The Supreme Court has noted that vagueness
is not a principle designed to convert into a
constitutional dilemma the practical
difficulties in drawing criminal statutes both
general enough to take into account a variety
of human conduct and sufficiently specific to
provide fair warning that certain kinds of
conduct are prohibited.
Colten v. Commonwealth of Kentucky, 407 U.S. 104, 110 (1972).
We have identified three factors to be considered in
deciding whether a statute is unconstitutionally vague: (1) whether
it is "so imprecisely drawn and overbroad that it 'chills' the
exercise of [F]irst [A]mendment rights,"(2) whether it gives
adequate notice of the conduct prohibited, and (3) whether
imprecise language encourages arbitrary enforcement by allowing
prosecuting authorities undue discretion to determine the scope of
the statute's prohibitions. Summers v. Anchorage, 589 P.2d 863,
866-67 (Alaska 1979).
1. Imprecision and overbreadth
In context of the overbreadth prong, Turney argues that
"AS 11.56.590 unconstitutionally criminalizes a wide range of
protected speech; in doing so the statute necessarily does
discourage such speech, chilling the exercise of Alaskans' [F]irst
[A]mendment rights." We have previously acknowledged that "the
overbreadth and void-for-vagueness doctrines are related and, at
least in the [F]irst [A]mendment area, not wholly separable. . . ."
Marks, 500 P.2d at 646 (footnote omitted).
Our review of AS 11.56.590, discussed above in Part
III.B, convinces us that the statute is not unconstitutionally
overbroad and does not chill the exercise of First Amendment
rights. Our reading of the statute leads us to conclude that there
is a reasonable relationship between the intended target of the
statute -- communications that are intended to influence the
discharge of a juror's core duties but that are not permitted by
applicable rules -- and the words of the statute. In our view, the
statute is not so imprecise that persons wishing to engage in
constitutionally protected speech would be discouraged from doing
so. The statute describes the prohibited conduct and required
intent. It distinguishes between speech directed at the jurors who
will decide a particular case and speech aimed at the general
public. It conveys the notion that communications that could not
be passed to jurors in accordance with the applicable rules, or
that would be contrary to the substance of official communications
with the jurors, are prohibited.
We also conclude that the perimeters of the zone of
prohibited conduct are not significantly broader than the core
conduct that the legislature legitimately sought to prohibit.
Because the conduct must be accompanied by the intent specified by
the statute, there is a correlation between the words of the
statute and the constitutionally unprotected conduct.
We consequently conclude that the statute is not so
imprecisely drawn and overbroad that it chills exercise of First
Amendment rights. Cf. Summers, 589 P.2d at 866.
2. Adequate notice of conduct prohibited
In order for a statute to give adequate notice, its terms
must be sufficiently explicit to inform those
who are subject to it what conduct on their
part will render them liable to its penalties
. . . 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.
Marks, 500 P.2d at 650 (quoting Connally v. General Constr. Co.,
269 U.S. 385, 391 (1926)).
Turney argues that the phrases "influence the juror's
. . . action as a juror"and "directly or indirectly communicates"
are not sufficiently explicit, and that "[i]t is not just a lay
person who is impelled by AS 11.56.590 to grope for a
constitutional meaning"of the statute. (EN11)
The State rejects this argument, stating that the term
"influence"is not inherently vague, and draws parallels to the use
of that term in Rules 3.5 and 3.10 of the Alaska Rules of
Professional Conduct. (EN12)
We agree with the State. Reading the statute as a whole
in light of the specific intent that is part of the offense,
persons of common intelligence would not have to guess at its
meaning and differ as to its application. Marks, 500 P.2d at 650
(quoting Connally, 269 U.S. at 391).
Our court of appeals has often noted that a requirement
of specific intent will save statutes from claims of
unconstitutional vagueness. McKillop v. State, 857 P.2d 358, 364-
65 (Alaska App. 1993) (rejecting a constitutional challenge to
Alaska's harassment statute in part because it required proof of
specific intent); Jones v. Anchorage, 754 P.2d 275, 278-79 (Alaska
App. 1988) (upholding City's telephonic harassment ordinance
because it required proof of specific intent to harass); Flink v.
State, 683 P.2d 725, 733 (Alaska App. 1984) (holding that the
criminal statutes at issue involved specific intent crimes and were
therefore neither vague nor overbroad). Courts elsewhere have
rejected vagueness attacks for similar reasons. (EN13)
In addition, this court and our court of appeals have
often rejected claims of inadequate notice when the conduct at
issue falls squarely within the "hard core"of conduct that is
prohibited by the statute. See, e.g., Peratrovich v. State, 903
P.2d 1071, 1078 (Alaska 1995); Holton v. State, 602 P.2d 1228, 1236
(Alaska 1979); Taylor v. State, 710 P.2d 1019, 1023 (Alaska App.
1985). We have noted that:
Courts have often recognized that the
possibility of difficult or borderline cases
will not invalidate a statute where there is a
hard core of cases to which the ordinary
person would doubtlessly know the statute
unquestionably applies.
Stock v. State, 526 P.2d 3, 9 (Alaska 1974).
3. Potential for arbitrary enforcement
This court has stated that it "will not invalidate a
statute on [vagueness] grounds unless there is some history of
arbitrary or selective enforcement." Holton, 602 P.2d at 1237
(citation omitted).
Turney claims that "[n]ot only does AS 11.56.590 create
undue prosecutorial discretion encouraging arbitrary enforcement,
it has led to actual arbitrary enforcement." In support, he notes
that no charges were brought against the makers of a recently-
broadcast television program on jury nullification, or against
anyone who put up political, commercial, or religious messages
inside the court building, or against Turney himself for any other
instances in which he communicated with jurors. He also argues
that the State "has permitted one point of view to be expressed in
the State Court and Office building, but censored the opposing
point of view"by showing a video and distributing a handbook
discussing jurors' duties during juror orientation. (EN14)
We agree with the State's response that there is no
evidence that the television producers or pamphleteers had the
requisite intent to influence jurors' actions as jurors in
particular cases. Further, the materials presented during jury
orientation are specifically permitted by Alaska Rule of
Administration 15(a). We conclude that there is no evidence of a
history of selective or arbitrary enforcement. (EN15)
Turney also argues that he should not bear the burden of
proving specific instances of the State's failure to prosecute
under this statute. The language of the statute is not so
imprecise on its face that it obviously would encourage "arbitrary
enforcement by allowing prosecuting authorities undue discretion to
determine the scope of its prohibitions." Summers v. Anchorage,
589 P.2d at 867.
We conclude for these reasons that AS 11.56.590 is not
void for vagueness. (EN16)
D. Can a Person Commit a Criminal Trespass on Public
Property during Hours the Property Is Open to the Public?
Turney was charged with two counts of criminal trespass
in the first degree, in violation of AS 11.46.320(a)(1). He argues
that a person cannot commit the crime of criminal trespass on
public property when that property is open to the public. He
contends that, even assuming that he was on court property when he
spoke to Jurors Flood and Ellis, he did not commit criminal
trespass because "[t]he purpose for entry or remaining does not
make the entry or remaining unlawful."
The criminal trespass statutes, AS 11.46.320(a) and AS
11.46.330(a), both provide that a person commits criminal trespass
if he or she "enters or remains unlawfully"on premises, either
with or without the intent to commit a crime on the land. (EN17)
Alaska Statute 11.46.350(a)(2) provides that:
(a) As used in AS 11.46.300-11.46.350, unless
the context requires otherwise, "enter or
remain unlawfully"means to
. . . .
(2) fail to leave premises or a propelled
vehicle that is open to the public after being
lawfully directed to do so personally by the
person in charge.
In Johnson v. State, 739 P.2d 781, 783-84 (Alaska App.
1987), the court of appeals held that this statute was not
unconstitutionally vague. In that case, the question of whether
criminal trespass occurred was based not on whether the location
was public or private, but on whether the defendant had "license or
privilege to utilize the premises." Id. at 783. Here the issue
turns not on whether the trespass occurred on public property, but
on whether Area Court Administrator Woods had authority to prohibit
Turney from remaining on or entering onto that property for a
specified purpose.
We agree with the State's argument that Alaska's criminal
trespass statutes do reach a trespass on public property during
hours the property is open to the public. (EN18) The statutes do
not distinguish between private and public property. The only
distinction is whether the "person in charge"has authority to
prevent a person from entering or remaining on that property, thus
making it "unlawful"for them to be there.
Assuming Woods had authority to direct Turney to leave
(an issue not before us) because he had reason to believe Turney
was engaging in acts constituting jury tampering, we reject
Turney's argument that he could not be charged under AS
11.46.320(a).
IV. CONCLUSION
We AFFIRM the superior court's order denying Turney's
motion to dismiss the indictment and information, and REMAND for
further proceedings.
ENDNOTES:
1. This telephone number was "1-800-TEL-JURY." One calling this
number hears the following recorded message:
Thank you for calling the Fully Informed Jury
Association. FIJA is a nonprofit educational
association that wants all Americans to know
their rights as jurors to judge the law itself
as well as the facts regardless of the
instructions from the judge because jurors can
not be punished for their verdict. They are
the final check and balance on our government,
with more power than the President,
[C]ongress, or [the] Supreme Court. To talk
to a live person, call 406-793-5550 or we will
mail you more free information on jury veto
power, if you tell us how you heard of us.
Then name and spell your name, address, and
zip code. Here's the tone. [TONE]
2. The superior court found that "[t]here is no evidence to show
that either the judge in the case, the District Attorney's Office,
Hall, or Hall's attorney authorized, sought, or desired Mr.
Turney's contact with the jurors in the case."
3. Juror Ellis himself was unsure when he called. He admitted he
listened to the recording, but stated that he did not leave his
name or address. He also testified that he had seen a television
program on jury nullification about a week before the trial. He
testified that he knew of Turney and his activities before the
trial. However, it was only after the trial that he began to speak
to Turney on a regular basis.
4. Juror Paluck testified that Juror Ellis suggested she call the
1-800-TEL-JURY number. She called the number, but apparently only
after she had already decided how she was going to vote. When
asked whether the recording was in conflict with the judge's
instructions, Juror Paluck responded: "Well, basically when the
judge instructs us, they tell us that we can't . . . you can't vote
your feelings, you have to vote according to the letter of the law.
And the -- and the tell jury deal, from what I gathered from the
recording that I got that I have more rights than what was read to
me by the judge."
Juror Rice testified that Juror Ellis had told him that he had
called the number, and that they had not been told their full
rights as jurors. Juror Rice testified that Juror Ellis told him
that they also had the right to ask questions, and that they did
not have to follow the law. However, Juror Rice also testified
that Juror Ellis did not tell him to call the number, or try to get
him to change his vote.
5. Juror Romersberger also testified that he did not gain this
information directly from those jurors, but was later told by
another juror that they had called the number.
6. Article I, section 5 of the Alaska Constitution provides that
"[e]very person may freely speak, write, and publish on all
subjects, being responsible for the abuse of that right." This
court has previously held this protection "to be at least as broad
as that of the First Amendment of the United States Constitution."
Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982) (citations omitted).
Although Turney argues that his appeal should be considered in
light of the broader protection of speech guaranteed under the
Alaska Constitution, we conclude that the analysis, and thus the
result, is the same under both the State and Federal Constitutions.
We will accordingly limit our discussion to the federal
constitutional issues raised by Turney.
7. Turney argues that the sweep of Alaska's jury tampering
statute is as broad as or broader than "any jury tampering statute
in our nation." He summarizes its legislative history, and
compares it to the development of similar statutes in other states.
8. The Alaska Civil Liberties Union and the FIJA filed amicus
briefs which also argue that AS 11.56.590 is unconstitutional.
9. According to Turney, AS 11.56.590 as written criminalizes the
following statements:
Honey, if the case is so boring, why don't you
just bring your knitting and concentrate on
that until they get to the juicy parts?
What an honor to be chosen! I wish I could be
on a jury. You must do your very best to be
fair!
You're on jury duty? I don't care what the
case is -- hang 'em!
In my opinion, judges are all corrupt. You
ought to try to figure out whatever it is that
they're trying to keep from you.
10. Given our conclusion that the statute is not overbroad, we
need not consider the State's alternative arguments. The State
argues in the alternative that even assuming that the speech
involved in jury tampering implicates the First Amendment, it
nevertheless should be denied protection under the "clear and
present danger"test. Next, the State contends that even assuming
that such speech does not satisfy the "clear and present danger"
test, the statute is still constitutional because it "strikes a
balance between [F]irst [A]mendment interests and society's
interest in the impartial administration of justice." The State
argues that the impartial administration of justice is a
"compelling government interest"that justifies encroachment upon
First Amendment rights, and that the jury tampering statute
satisfies the "least restrictive alternative"test.
11. Turney cites State v. Robertson, 128 So. 2d 646 (La. 1961), in
support of his argument. That case involved a jury tampering
statute struck down for unconstitutional vagueness. The Louisiana
Supreme Court concluded that the verb "to influence,"as it
appeared in the statute, "is susceptible of an extended application
which defies legal measurement." Id. at 649. However, the State
correctly distinguishes this case, as the actus reus in the
Louisiana statute was "influencing,"while the actus reus in the
statute at issue here is "communicating."
12. Rule 3.5(a) provides that:
A lawyer shall not:
(a) seek to influence a judge, juror,
prospective juror or other official by means
prohibited by law.
(Emphasis added.)
Rule 3.10 provides:
After discharge of the jury from further
consideration of a case with which the lawyer
was connected, the lawyer shall not ask
questions of or make comments to a member of
that jury that are calculated merely to harass
or embarrass the juror or to influence the
juror's actions in future jury service.
(Emphasis added.)
13. United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996)
(concluding that "[a] scienter requirement . . . may suffice to
provide adequate notice that given conduct is proscribed"); Kilgus
v. Cunningham, 602 F. Supp. 735, 740 (D.N.H. 1985) (rejecting
defendant's vagueness and overbreadth challenges to witness
tampering statute, and noting that "the statute focuses on the
defendant's intent"); State v. Cavallo, 513 A.2d 646, 651 (Conn.
1986) (relying on specific intent to save witness tampering statute
from vagueness challenge); and State v. Torline, 527 P.2d 994, 997
(Kan. 1974) (rejecting vagueness challenge to obstruction of
justice statute in part because of intent requirement).
14. Turney argues that:
Almost simultaneously with Turney's
communications, and without authorization by
any Rule of Court, the State itself was
distributing on court premises the pamphlet
entitled "Alaska Trial Jury Handbook"which
tells jurors "No juror should be influenced by
what he or she thinks the law should be or
what the juror would like it to be,"and was
showing the "orientation video"which told
jurors "I the judge decide questions of law,
that is which law applies to the case. But
only you are the judge of the facts." Jurors
were exposed to only one side of this debate.
15. Regardless of the subjective intentions of persons posting or
giving out documents on court premises, if those communications
convey to jurors messages which if followed would cause jurors to
act contrary to official instructions given them during their
service, those documents must be removed.
16. The superior court read AS 11.56.590 restrictively to provide
"a proper balance to Turney's right to free speech and the Sixth
Amendment right to a fair trial." According to the superior court,
"the intent provision of the jury tampering statute must be
interpreted to prohibit communications with a juror only when the
defendant's primary intent is to influence a juror's vote, opinion,
decision, or other action as a juror in a particular case."
(Second emphasis added.) Given our conclusion that the statue as
written is constitutional, we need not impose any "limiting
construction"not implicit in the words of the statute. We
consequently need not consider Turney's argument that the superior
court erred by "rewriting"the statute.
17. AS 11.46.330(a) provides:
A person commits the crime of criminal
trespass in the second degree if the person
enters or remains unlawfully
(1) in or upon premises; or
(2) in a propelled vehicle.
18. The State argues that both AS 11.46.320(a) and .330(a) provide
that "a person commits a criminal trespass if he 'fail[s] to leave
premises or a propelled vehicle that is open to the public after
being lawfully directed to do so personally by the person in
charge.'" This language is actually contained in a definitional
statute, AS 11.46.350(a)(2).
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