Opposition — Constantino v. Georgia

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IN THE OCT 15 1979

Supreme Court of the United States...

October Term, 1979 en

owe _——-

No. 79-128

FRANK CONSTANTINO,

Petitioner,

Vv.

STATE OF GEORGIA

Respondent.

On Petition for Writ of Certiorari to

The Supreme Court

of Georgia

BRIEF IN OPPOSITION FOR THE RESPONDENT

ARTHER K. BOLTON

Attorney General

Please serve:

NICHOLAS G. DUMICH

132 State Judicial Building

40 Capitol Sq., S.W.

Atlanta, Georgia 30334

(404) 656-3499

ROBERT S. STUBBS, II

Executive Assistant

Attorney General

DON A LANGHAM

First Assistant

Attorney General

JOHN C. WALDEN

Senior Assistant

Attorney General

NICHOLAS G. DUMICH

Staff Assistant

Assistant Attorney General

INDE X

QUESTION PRESENTED ..... + « « « 2

STATEMENT OF THE CASE ... +. « -« 3

REASON FOR NOT GRANTING THE WRIT

SINCE GA. CODE ANN. § 26-2610(e)

AND § 104-9901(b) GIVES

SUFFICIENTLY DEFINITE WARNINGS

AS TO THE CONDUCT PROSCRIBED

THEREIN, AND SINCE SAID STATUTES

ALSO REQUIRE A SPECIFIC INTENT

BEFORE CRIMINAL LIABILITY

ATTACHES, THEY ARE NEITHER UN-

CONSTITUTIONALLY VAGUE NOR

INDEFINITE SO AS TO REQUIRE

A REVERSAL OF THE PETITIONER'S

CONVECTIONS « « 2» © & © 0 6 0 tb 8 6

CONCLUS ION ad . e e - e o * 7 e e 2 e 1 0

CERTIFICATE OF SERVICE ...... -» ll

| (Continued) Page

CITATIONS |

Cases: Page

—— | United States v. Lampley, 573 F.2d

Bowie v. City of Columbia, 378 U.S. | 783 (3rd Cir. 1578} oe ae ee ee 8

See Lees Se <6 lk Oe eek OR ee 9 |

United States v. National Dairy

Caldwell v. State, 26 Md. App. 94 Products Corp., 372 U.S. 29,

} ee Tork. o e 7. e e . = oe 8 i 32-33 (1963) = 7. es na 7 ° . ° 2 7. . i)

Connally v. General Const. Co., 269

Uses Gee ee tee ee ke See eC | Statutes Cited:

Constantino v. State, 243 Ga. 595,

S.E.2a (May 2, 1979) .... 1, 9 Ga. Code Ann. § 26-2610(e)...... 2e3e3¢%%

Lanzetta v. New Jersey, 306 U.S. Ga. Code Ann. § 104-9901(b) ..... 2,375,6,

See COP aee Sk SOD Seale ks Wi Mw Ee 9

People v. Lampasona, 130 Cal. Rptr.

Geary 7. Corser BCE. (1977) bo Be 8

People v. Smith, 392 N.Y.S.2d 968,

SP Hage. a6, 708 AL9TT).. 6 6 Oe Hee 8

Rose v. Locke, 423 U.S. 48, 49

(1975) o e ° . ° ° a Sd ° e ° ° eo . e 7

on orem

Schuster v. State, 450 S.W.2d 616

(zee. Cee Bei LETC) 2 ee 6 eo ee 8 8

Screws v. United States, 325 U.S. 91,

101-02, 65 S.Ct. 1031, 89 L.Ed.

Sage CESS) 6 <4 es See ee 8 8

State v. Larsen, 37 Or. 425, 588 |

P.2d 41 (1978) . 2 7 e » + 7 . e e e 8

iii

ii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO. 79-128

FRANK CONSTANTINO,

Petitioner,

Vv.

STATE OF GEORGIA,

Respondent.

¥

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

BRIEF IN OPPOSITION FOR THE RESPONDENT

The State of Georgia, by and through the

Attorney General for the State of Georgia,

respectfully requests that this Court deny the

petition for writ of certiorari, which seeks

review of the Georgia Supreme Court's decision

in this case. That opinion is reported as

Constantino v. State, 243 Ga. 595, S.E.2d

___. (May 2, 1979), and has been attached as

Appendix "A" to the petition for writ of

certiorari.

QUESTION PRESENTED

Whether or not Ga. Code Ann. § 26-2610(e)

and § 104-9901(b), which provide for criminal

penalties for those who use the telephone for

the purpose or annoying or harassing another,

are in violation of the United States Constitution

because of alleged indefiniteness or vagueness?

STATEMENT OF THE CASE

The Petitioner, Frank Constantino, and his

wife, Patsy, were indicted by a Lowndes County,

Georgia Grand Jury on twelve counts of the

offense of using a telephone for the purpose

of harassment. Specifically, the indictment

charged the Petitioner with knowingly and

wilfully telephoning one John Paul Jones and

his wife, Jan Jones, repeatedly for the purpose

of annoying, harassing and molesting them.

Although the indictment did not specify the

violation of a particular statute, it is clear

that the alleged offenses could have occurred

under either of two Georgia code sections.

Ga. Code Ann. § 26-2610 states, in pertinent

part, as follows:

"A person who commits any of

the following acts is guilty

of a misdemeanor: ... (e)

Telephones another repeatedly,

whether or not conversation

ensues, for the purpose of

annoying, harassing or

molesting another or his family,

or uses over the telephone

language threatening bodily

MEM. ce le"

Ga. Code Ann. § 104-9901 also provides:

"Whoever by means of telephone

communication in this state:

- - - (b) makes a telephone

call, whether or not conversation

ensues, without disclosing his

identity and with intent to annoy,

abuse, threaten or harass

any person at the called

number; or makes or causes

the telephone of another

repeatedly or continuously

to ring, with intent to

harass any person at the

called number .. . shall

be guilty of a misdemeanor.”

The evidence showed that the Petitioner

had become involved with Mr. John Paul Jones

when “ne Petitioner had asked him to investigate

allegations against the Department of Family

and Children Services which was attempting to

take custody of the Petitioner's three children.

Mr. Jones, a news reporter, investigated the

allegations; however, he determined they were

unfounded. Although the Constantinos continued

to request that Mr. Jones further investigate

their allegations, he refused to do so, and

eventually the Constantino children were taken

into custody by the Department of Family and

Children Services. In November of 1977, Mr.

Jones was called on to testify at a custody

hearing, and the children were placed in a

foster home.

Three days after the hearing Mr. and Mrs.

Jones began receiving harassing telephone calls

from the Petitioner and his wife. Testimony

at trial from Mr. Jones and his wife established

that prior to the custody hearing they had

never received such phone calls, but they had

received several hundred since that time. At

times the Petitioner and his wife engaged in

conversations with the Jones; however, when

Mr. Jones threatened to record their voices

if they refused to stop calling, the conversations

ceased and a barrage of anonymous calls began

where the caller would simply hang up without

speaking whenever the Jones answered their

telephone. During a three hour period on one

day Mrs. Jones counted fifty-four telephone

calls.

A telephone "security trap" was placed

on the Jones' telephone line on December 16,

1977. As a result of this "trap" it was

determined that during a two day period, at

least ten calls were received by the Jones

from the Petitioner's telephone number. There-

after, the Petitioner and his wife were

indicted and convicted of twelve counts of using

a telephone for the purpose of harassment. On

appeal to the Supreme Court of Georgia and

in his argument in this petition, Petitioner

has contended that Ga. Code Ann. § 26-2610(e) and

§ 104-9901(b) are unconstitutionally vague and

indefinite.

REASON FOR NOT GRANTING THE WRIT

SINCE GA. CODE ANN. § 26-2610(e)

AND § 104-9901(b) GIVES SUFFICIENTLY

DEFINITE WARNINGS AS TO THE CONDUCT

PROSCRIBED THEREIN, AND SINCE SAID

STATUTES ALSO REQUIRE A SPECIFIC

INTENT BEFORE CRIMINAL LIABILITY

ATTACHES, THEY ARE NEITHER UNCONSTITU-

TIONALLY VAGUE NOR INDEFINITE SO AS

TO REQUIRE A REVERSAL OF THE

PETITIONER'S CONVICTIONS.

The thrust of the Petitioner's application

for a writ of certiorari is that the aforecited

Georgia statutes allegedly provide no standards

or guidelines to govern the court or jury in

ascertaining what constitutes annoyance, harassment

or molestation under said statutes. Petitioner

argues that different juries may utilize different

standards in determining what amounts to

harassment, annoyance or molestation on the part

of the accused.

However, an examination of Ga. Code Ann.

§ 26-2610(e) and § 104-9901(b) reveals that they

both require the finder of fact to make a

determination that the defendant had been engaged

in a specific conduct with a specific intent at

the time of the alleged offenses. Both statutes

essentially call for punishment when an individual

utilizes the telephone with the specific intent

or purpose of annoying, abusing or harassing

a person at the called number. These terms are

well recognized and easily capable of definition.

For example, Webster defines annoying as "causing

vexation: irritating." Abuse is defined as

"to attack in words: revile: to put to a wrong

or improper use: to use so as to injure or

damage: maltreat." Webster's New Collegiate

a $e

Dictionary, (1977). Likewise, the remaining

terms of the proscribed conduct in the two statutes

are easily definable and their meaning is

readily ascertained by men of common intelligence.

It is clear that penal statutes must be

sufficiently explicit to inform those who are

subject to it, what conduct on their part will

render them liable to its penalties. Connally

v. General Const. coe 269 U.S. 385, 389 (1925).

However, as noted in Rose v. Locke, 423 U.S.

48, 49 (1975),

"This prohibition against

excessive vagueness does not

invalidate every statute which

a reviewing court believes

could have been drafted

with greater precision.

Many statutes will have some

inherent vagueness, for '[i]n

most English words and phrases

there lurk uncertainties.

(cases cited) .. . All that

due process requires is that

the law give sufficient warning

that men may conduct themselves

so as to avoid that which is

forbidden.'" Id. at p. 49-50.

In Rose this Court was concerned with « challenged

Tennessee statute which contained a proscription

of "crimes against nature." This Court found

that the phrase "crimes against nature" was

no more vague than many other terms used to

describe criminal offenses at common law and

now codified in many state and federal penal

codes, and thus the constitutional attack failed.

The Georgia statutes in question are similar

to statutes which have been approved by state

courts in many other jurisdictions. See, e.g.

State v. Larsen, 37 Or. 425, 588 P.2d 41 (1978);

People v. Lampasona, 130 Cal. Rptr. 682, 71 CA.3rda

884 (1577); BS Té v. Smith, 392 N.Y.S.2d 968,

89 Misc.2da 789 rIST TI Schuster v. State, 450

S.W.2d 616 (Tex. Cr. App. 1570); and Caldwell

v. State, 26 Md. App. 94, 337 A.2a 476 (1575).

Likewise, the United States Congress has en-

acted similar legislation proscribing annoying,

abusive, threatening or harassing telephone calls

in the District of Columbia. 47 U.S.C. § 223

(1968). This code section has been examined by

the Third Circuit Court of Appeals after it had

been challenged on the grounds of being un-

constitutionally vague. The Court in United

States v. Lampley, 573 F.2d 783 (3rd Cir. 1578),

found that the code sections specific intent

requirement had rendered the appellant's constitu-

tional challenge unconvincing. In upholding the

statute that court stated:

"(T)he Court, indeed has

recognized that the requirement

of a specific intent to do

a prohibited act may avoid

those consequences to the accused

which may otherwise render a

vague or indefinite statute

invalid... . [W)here

the punishment imposed is only

for an act knowingly done with

the purpose of doing that which

the statute prohibits, the

accused cannot be said to suffer

from lack of warning or knowledge

that the act which he does is

a violation of law. Screws v.

United States, 325 U.S. SI, I01-

’ S.Ct. 1031, 1035, 89 L.Ed.

1495 (1945)." Id. at p. 787.

The State of Georgia recognizes that a

criminal defendant may successfully assert

unconstitutional vagueness as a defense where

the proof shows that he could not have reasonably

understood that his contemplated conduct was

proscribed. United States v. National Dair

Products Corp., 372 U.S. 29, 32-33 (1963); Bowie

v. City of Columbia, 378 U.S. 347 (1964); Lanzetta

v. New Jersey, 306 U.S. 451 (1939). However

in the instant case the Georgia Supreme Court

correctly found that "[t]he plain meaning of

the two statutes in question is that an individual

may not make telephone calls for the purpose

of harassing someone. The statutes are clear

and could be readily understood by people of

ordinary intelligence seeking to avoid their

violation." Constantino v. State, supra, at

p. 597. Thus, since the Georgia statutes provide

sufficient warning and specifically as to their

proscribed conduct, this Court should deny the

instant petition for a writ of certiorari.

CONCLUSION

For all of the aforestated reasons, it

is respectfully submitted that the petition for

a writ of certiorari in the present case be

denied.

Respectfully submitted,

ARTHUR K. BOLTON

Attorney General

ROBERT S. STUBBS, II

Executive Assistant

Attorne

“A. HAM

First Assistant

Attorne cK

= , a ell |

Senior sistant

Attorney, General

Staff Assistant

Attorney General

Please serve:

NICHOLAS G. DUMICH

132 State Judicial Bldg.

40 Capitol Square, S. W.

Atlanta, Georgia 30334

(404) 656-3499

-10-

CERTIFICATE OF SERVICE

I, John C. Walden, Attorney of Record

for the Respondent, and a member of the Bar

of the Supreme Court of the United States,

hereby certify that in accordance with the

Rules of the Supreme Court of the United

States, I have this day served a true and

correct copy of this Brief in Opposition for

the Respondent upon the Petitioner by

depositing three copies of the same in the

United States mail with adequate postage and

properly addressed to:

Mr. Floyd M. Buford

Attorney at Law

165 First Street

P. O. Box 755

Macon, Georgia 31202

This Tha day of October, 1979.

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