State v. Summrell

192 S.E.2d 569 (1972) 282 N.C. 157

STATE of North Carolina
v.
Julius Stewart SUMMRELL.

No. 53.

Supreme Court of North Carolina.

November 15, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. James E. Magner for the State.

Chambers, Stein, Ferguson & Lanning, by Charles L. Becton, Charlotte, and Paul & Keenan, by Jerry Paul, Greenville, for defendant appellant.

SHARP, Justice:

Defendant, by his motion to quash the warrant upon which he was charged and convicted of disorderly conduct, challenged the constitutionality of the applicable sections of G.S. § 14-288.4 (1969), the statute under which it was drawn. The court's denial of this motion raises the constitutional question upon which defendant appeals.

G.S. § 14-288.4(b) provides: "Any person who wilfully engages in disorderly conduct is guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00) or imprisonment for not more than six months." (Emphasis added.)

G.S. § 14-288.4(a), in pertinent part, provides: "Disorderly conduct is a public disturbance caused by any person who:

"(1) Engages in fighting or in violent, threatening, or tumultuous behavior; or

"(2) Makes any offensively coarse utterance, gesture, or display or uses abusive language, in such manner as to alarm or disturb any person present or as to provoke a breach of the peace; or

"(3) Wilfully or wantonly creates a hazardous or physically offensive condition.. . ." (Emphasis added.)

Public disturbance is defined by G.S. § 14-288.1(8) (1969) to be: "Any annoying, disturbing, or alarming act or condition exceeding the bounds of social toleration normal for the time and place in question which occurs in a public place or which occurs in, affects persons in, or is likely to affect persons in a place to which the public or a substantial group has access. The places covered by this definition shall include, but not be limited to, highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood."

The foregoing sections are a part of Article 36A of Chapter 14 of the General Statutes of North Carolina. This Article was enacted by Chapter 869, N.C.Sess. Laws of 1969, Section 9 of which provides: "If any word, clause, sentence, paragraph, section, or other part of this Act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof."

Defendant concedes that a person may be legally convicted of disorderly conduct under G.S. § 14-288.4(a)(1) if he wilfully engages in fighting, violence, or conduct threatening immediate violence. His contentions with reference to the charge based upon this section (count one in the disorderly conduct warrant) will be discussed in considering the assignments of error relating to the charge.

With reference to Section (a)(2) of G.S. § 14-288.4, the basis for the second count in the warrant charging disorderly conduct, defendant contends that this portion of the statute violates the First Amendment guaranty of free speech and section one of the Fourteenth Amendment. He argues that this section is "facially vague and overbroad"; that its imprecise and sweeping language not only encompasses speech protected by the First Amendment but is so indefinite that men of common experience and intelligence could not know in advance what utterances and conduct would fall within its prohibition.

It must be conceded that all of Section (a)(3) and that part of Section (a) (2) which proscribes "offensively coarse" utterances and acts such as "to alarm and disturb any person present" are vague. See In Re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879, 888 (1969). Words and conduct which would alarm and disturb one person might not faze another, and conditions hazardous or physically offensive to some might not be so regarded by others. It is quite clear that, under the decision of the United States Supreme Court in Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972), Section (a)(3) and that portion of Section (a)(2) referred to above are unconstitutionally vague and overbroad. In Gooding, the Court passed upon a Georgia statute providing that "[a]ny person who shall, without provocation, use to or of another, and in his presence. . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor." Id. at 519, 92 S. Ct. at 1104, 31 L.Ed. at 412. The decision was that the statute was "facially unconstitutionally vague and overbroad" and, in the absence of an authoritative construction by the Georgia court (1) narrowing its application to "fighting" words only, utterances tending to incite an immediate breach of the peace; and (2) excluding from its application speech, however vulgar or offensive, that is protected by the First and Fourteenth Amendments, that it was void.

It has long been established that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are offensive, disturbing, or alarming to some hearers. Street v. New York, 394 U.S. 576, 592, 89 S. Ct. 1354, 22 L. Ed. 2d 572, 585 (1969). Any other rule would deny the opportunity for free political discussion which is so necessary to keep government responsive to the will of the people and to effect changes by lawful means. Some persons will always be alarmed, and perhaps disturbed, by the advocates of change. Thus, a statute which defines proscribed activity so broadly that it encompasses constitutionally protected speech, cannot be upheld in the absence of authoritative judicial limitations. See Bachellar v. Maryland, 397 U.S. 564, 90 S. Ct. 1312, 25 L. Ed. 2d 570 (1970); Edwards v. South Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963); Terminiello v. Chicago, 337 U.S. 1, 69 S. Ct. 894, 93 L. Ed. 1131 (1948); Stromberg v. California, 283 U.S. 359, 369, 51 S. Ct. 532, 75 L. Ed. 1117, 1123, 73 A.L.R. 1484 (1931).

Recognizing the vagueness and "overbreadth" of the "alarm and disturb" provision in Section (a)(2) and the hazardous or physically offensive provision in Section (a)(3), upon which the third count on the warrant was based, Judge Martin struck the third count and construed Section (a) (2) to prohibit only words and conduct likely to provoke ordinary men to violence. Thus, he deleted the obscuring verbage and left undisturbed the statutes' proscription against acts and language calculated to bring on a breach of the peace. The State was given permission to amend the second count of the warrant to comply with this construction, and, before verdict the solicitor amended by striking therefrom the words "alarm and disturb persons present." This was permissible procedure. State v. Fenner, 263 N.C. 694, 140 S.E.2d 349 (1965); State v. Thompson, 233 N.C. 345, 64 S.E.2d 157 (1951).

Judge Martin's "construction of severability" was authorized by Section 9 of Ch. 869, N.C.Sess.Laws of 1969 previously quoted herein. Further, it is well settled in our law that a statute will not be construed so as to raise a question of its constitutionality "if a different construction, which will avoid the question of constitutionality, is reasonable." Education Assistance Authority v. Bank, 276 N.C. 576, 592, 174 S.E.2d 551, 563 (1970).

There can be no doubt that the General Assembly intended to prohibit "fighting words," words tending to cause an immediate breach of the peace wilfully spoken in a public place, and that Judge Martin's interpretation accurately expressed the legislative purpose. At this point we note that the General Assembly by N.C.Sess.Laws, Ch. 668, § 1 (1971) deleted Section (a)(3) from G.S. § 14-288.4 and rewrote Section (a)(2) so that it now reads "[m]akes or uses any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace. . . ." There is no substantial difference between the 1971 revision and the 1969 version of Section (a)(2) as Judge Martin construed it.

"The right of [freedom of speech] is not an absolute one, and the State in the exercise of its police power may punish the abuse of this freedom." Stromberg v. California, supra, 283 U.S. at 368, 51 S. Ct. at 535, 75 L.Ed. at 1123. "The prime function of government is to preserve public order and keep the State tranquil." 1 Bishop, Criminal Law § 533 (9th ed. 1923). Thus, it has a paramount duty to maintain order not only in the streets but in schools, hospitals, and all public places. The Supreme Court has recognized this obligation. Grayned v. Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); Colton v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972); Feiner v. New York, 340 U.S. 315, 71 S. Ct. 303, 95 L. Ed. 295 (1951); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1941). See also Bachellar v. Maryland, supra.

In Chaplinsky, the Supreme Court upheld a New Hampshire statute, which the highest court of that State had construed as outlawing in public places words likely to provoke the average person to retaliation and thus cause a breach of the peace. Speaking for a unanimous Court, Mr. Justice Murphy said, "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include. . . the insulting or ``fighting' words— those which by their very utterance . . . tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, supra at 571-572, 62 S. Ct. at 769, 86 L.Ed. at 1035.

We hold that Section (a)(2), as construed by Judge Martin, was constitutional. It neither prohibited nor "chilled" the exercise of any right protected by the First Amendment, and we have no apprehension that any citizen of good will who respected and desired to obey the law would have had any difficulty understanding it.

Irrespective of the constitutionality of Section (a)(2) defendant contends that the State's evidence failed to establish a violation of the section as interpreted by Judge Martin, and that he erred in denying defendant's motion to nonsuit the charge of disorderly conduct. We hold, however, that the evidence, considered in the light most favorable to the State, was sufficient to support the verdict.

A hospital emergency room, the place to which members of the public are taken or betake themselves when injured or stricken by sudden illness, is undoubtedly a public place. State v. Fenner, 263 N.C. 694, 698, 140 S.E.2d 349, 352 (1965); People v. Kemick, 17 Cal.App.3rd 419, 94 Cal. Rptr. 835 (1971). In an emergency room the most circumspect conduct is required for there, order, peace and quiet must prevail if its purpose is fulfilled. Turbulence must not be permitted. It requires no stretch of the imagination to envision the potential and inherent danger to the seriously injured and critically ill from apprehension and shock created by boisterous cursing and swearing and threatening utterances, be they specifically or generally directed. See People v. Ennis, 45 N.Y.S.2d 446 (City Ct. 1943).

"First Amendment rights must always be applied ``in light of the special characteristics of the . . . environment' in the particular case." Healy v. James, 408 U.S. 169, 180, 33 L. Ed. 2d 266, 279, 92 S. Ct. 2338, 2345 (1971). A hospital emergency room is not an appropriate forum for political discussion or the general dissemination of ideas. Nor was defendant attempting to use it as such. With an .18% concentration of alcohol in his blood stream, defendant was well under the influence of an intoxicant. 7 Cantor, Traumatic Medicine and Surgery for the Attorney 514 (1962); American Medical Association Manual, Chemical Tests for Intoxicants, 58-59 (1959). See State v. Moore, 245 N.C. 158, 161, 95 S.E.2d 548, 551 (1956). In common parlance, he was "drunk and disorderly." He had wilfully refused medical attention from the physician, who had the emergency room duty that day and had come to treat him, solely because he was a white man. When informed that the black doctor, whom he had demanded, was not immediately available he began shouting profanities, cursing all whites, and loudly voicing unfounded complaints. Such words and mode of communication in a hospital emergency room are not protected by the First Amendment. They constituted a substantial interference with the orderly operation of the emergency room. Nurse Shaw was disturbed; patients who were waiting for medical attention were agitated.

As a practical matter, of course, neither Nurse Shaw nor any patient—no matter how much aroused or angered they may have been by defendant's conduct—would have had the temerity to fight defendant. Despite his vociferous complaints of pain in the back, the intoxicated 21-year-old male defendant, in the words of one witness, appeared to have "abnormal strength." This appearance was verified by defendant's resistance when Officer Phillips attempted to arrest him. Nurse Shaw and the patients awaiting medical treatment were not "average persons" within the sense that phrase was used in the warrant and by Judge Martin in his interpretation of Section (a)(2). However, the evidence warranted a finding that defendant's dominant purpose was to disrupt the emergency room and that the content and manner of his utterances were likely to provoke the average person to retaliation and thus cause an immediate breach of the peace.

Nor was Phillips, to whom much of defendant's invective was directed, "the average person"; he was a peace officer charged with the duty of preventing a breach of the peace. However, he reasonably interpreted defendant's utterances as "fighting words"; and he recognized his duty to prevent a breach of the peace and attempted to do so—albeit unsuccessfully.

It is regrettable that we do not have a narrowly drawn statute specifically aimed at preserving order and tranquility in hospitals and outlawing disruptive conduct which interferes with patients' welfare and treatment. See Colten v. Kentucky, supra, and Grayned v. Rockford, supra. However, we hold that defendant's conduct as shown by the State's evidence, was encompassed by Section (a)(2) as interpreted by Judge Martin.

We also hold that the evidence warranted the jury's finding that Phillips had reasonable grounds to believe that defendant had committed in his presence the misdemeanor with which he was charged. Under these circumstances, irrespective of whether defendant had actually committed the crime, G.S. § 15-41(1) (1965) empowered the officer to arrest defendant without a warrant. State v. Fenner, supra. Thus, defendant could not legally resist the arrest, and his resistance constituted a violation of G.S. § 14-223 as charged in warrant No. 812. It is noted that defendant did not, by motion for nonsuit, challenge the sufficiency of the evidence to sustain this charge. He did except to the court's instructions to the jury "on the resisting arrest charge." In these instructions, however, we find no error.

In his instructions on the charge of disorderly conduct, Judge Martin directed the jury to return a verdict of guilty as charged in warrant No. 813 is satisfied beyond a reasonable doubt that defendant caused a public disturbance at the Pitt Memorial Hospital (1) by wilfully engaging in fighting or (2) by wilfully making offensively course utterances or using abusive language in such a manner as to so arouse the average person as to create a breach of the peace. Aside from the question whether this instruction adequately applied the law to the evidence as required by G.S. § 1-180 (1969), it contains error.

All the evidence tended to show that prior to his arrest for disorderly conduct defendant had not engaged in any actual fighting. That came after his arrest for disorderly conduct and was the result of the officer's attempt to hold him in custody on the charge. Fighting the officer constituted the offenses for which defendant was charged in warrants Nos. 811 and 812. It was not an element of the disorderly conduct for which he had already been arrested. Since it cannot be determined upon what ground or grounds defendant was convicted of disorderly conduct, the challenged instruction was error. However, under the circumstances of this case, the error was harmless. The six-months imposed for disorderly conduct was made to run concurrently with an identical sentence imposed for the offense of "resisting arrest." Defendant's convinction and sentence upon warrant No. 812 is without error and must stand. Thus, the sentence for disorderly conduct imposes no additional burden upon him. "To permit the verdict in [No. 812] to stand would give the defendant his freedom when the valid sentence is served. To grant him a new trial would permit a further prosecution. The error, therefore, insofar as the appellant is concerned, is harmless." State v. Cephus, 241 N.C. 562, 565, 86 S.E.2d 70, 72 (1955). See also 5 Strong, North Carolina Index 2d Criminal Law § 172 (1967).

We discuss next the question raised by defendant's first assignment of error: Whether the two warrants, No. 812, which charged him with resisting an officer and No. 811, which charged him with assaulting an officer, referred to the same conduct. Each warrant specifies that at the time of the alleged offense "such officer [Phillips] was discharging a duty of his office (or his duty) to wit: attempting to hold defendant in custody after arresting him."

At the beginning of the trial, defendant moved that the State be required to elect between the two charges or, in the alternative, that the warrants be quashed "upon the basis of duplicity." (Obviously, the basis of the alternative motion was duplication of charges and not duplicity. An indictment or warrant is duplicitous when it charges two different and distinct offenses in one count. State v. Burnett, 142 N.C. 577, 55 S.E. 72 (1906); State v. Wilson, 121 N.C. 650, 28 S.E. 416 (1897); State v. Cooper, 101 N.C. 684, 8 S.E. 134 (1884).)

The judge was not required to make the State elect between the charges contained in warrants Nos. 811 and 812, at the beginning of the trial, and before any evidence had been introduced. "He could not then intelligently have restricted it because he did not know what the evidence would be." State v. Smith, 201 N.C. 494, 495, 160 S.E. 577, 578 (1931); see also State v. Stephens, 170 N.C. 745, 87 S.E. 131 (1915). However, at the conclusion of the evidence, it had become quite clear that no line of demarcation between defendant's resistance of arrest and his assaults upon the officer could be drawn. The assaults were "the means by which the officer was resisted." State v. Midyette, 270 N.C. 229, 234, 154 S.E.2d 66, 70 (1967). Although the officer formally arrested defendant for disorderly conduct he was never able to hold him in custody. See 5 Am.Jur.2d Arrest § 1 (1962). His resistance began at the emergency room and ended with the unfortunate occurrences in the parking lot.

The warrants themselves indicate duplicate charges. Each warrant included all the elements of the offense charged in the other, and each specified only acts of violence which defendant directed at the officer's person while he was attempting to hold defendant in custody. It is noted that the warrant charging defendant with resisting, delaying, and obstructing Phillips in the discharge of his official duties did not also specify as a violation of G.S. § 14-223 defendant's interference with Phillips' examination of Wooten, a necessary part of his investigation of the motor vehicle accident. See State v. Leigh, 278 N.C. 243, 179 S.E.2d 708 (1971). At the close of the evidence, defendant's motion that the State be required to elect should have been allowed.

Defendant has been twice convicted and sentenced for the same criminal offense. The constitutional guaranty against double jeopardy protects a defendant from multiple punishments for the same offense, a principle recognized in State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964). See also United States v. Benz, 282 U.S. 304, 309, 51 S. Ct. 113, 114, 75 L. Ed. 354, 357 (1931). The fact that concurrent, identical sentences were imposed in each case makes this duplication of conviction and punishment no less a violation of defendant's constitutional right not to be put in jeopardy twice for the same offense. In this situation, the rule enunciated in State v. Thomas, 244 N.C. 212, 93 S.E.2d 63 (1956), and State v. Riddler, 244 N.C. 78, 92 S.E.2d 435 (1956), that where concurrent sentences are imposed upon conviction on two counts, any error relating to one count only is deemed harmless, can have no application. Accordingly, the warrant charging defendant with assault on an officer while in the discharge of his duty is quashed, the verdict set aside, and the judgment rendered thereon arrested. State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970); State v. Midyette, supra; State v. Parker, supra.

As for defendant's motion that he be allowed to examine all statements which the State took from any person during the course of its investigation of the charges against him, "because the State may have some exculpatory statement," see State v. Davis, 282 N.C. 107, 191 S.E.2d 664, decided earlier this term.

Other questions presented by defendant's appeal require no discussion. Except as modified herein, the decision of the Court of Appeals is affirmed.

The result is this:

In defendant's conviction under warrant No. 812 (resisting an officer), we find no error.

In defendant's conviction under warrant No. 813 (disorderly conduct), we find no prejudicial error.

Defendant's conviction under warrant No. 811 (assaulting a public officer) is vacated and the judgment arrested.

Affirmed in part; reversed in part.