# Opposition — Constantino v. Georgia

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0619%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 940

## Text

Dain LTT Ir iA
—-— ort <
, *

TLED |

;

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.

oo Leo

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0619%3A2. Public record. Not legal advice.