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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JON B. MCKILLOP, )
) Court of Appeals No. A-4072
Appellant, ) Trial Court No. 3AN-91-197 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1307 - August 6, 1993]
________________________________)
Appeal from the District Court, Third Judi
cial District, Anchorage, Martha Beckwith and
William H. Fuld, Judges.
Appearances: David R. Weber, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Ethan A.
Berkowitz, Assistant District Attorney,
Edward E. McNally, District Attorney,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
A jury found Jon B. McKillop guilty of harassment,
AS 11.61.120(a)(4), for making anonymous telephone calls to the
Anchorage Abused Women's Aid in Crisis (AWAIC) shelter. McKillop
appeals his conviction, asserting that his conviction rests on
illegally seized evidence, that the trial judge misinstructed the
jury on the meaning of "anonymous", and that the harassment
statute is unconstitutional. We hold that the statute is
constitutional if construed to require proof that the defendant's
sole intent was to annoy or harass the recipient of the telephone
call, but we reverse McKillop's conviction because the
instructions his trial jury received did not convey the limiting
construction we adopt today.
Between 10:00 and 10:30 p.m. on January 8, 1991, the
counselors working the AWAIC shelter crisis hotline received
approximately six telephone calls from the same male caller. The
caller told the female counselors that "there's no such thing as
so-called abused women", that "I've been abused by a cunt all my
life", that he'd lived with a "cunt" for four years, and that
women "ought to go to Baghdad and kill some niggers".
The caller did not give his name. However, at one
point he stated, "I'm Elvis Presley", and at another point he
told a counselor, "By the way, I'm at 277-0088, Room 225 if you
want free coke." The caller also told a counselor that "Elvis
was king", not Martin Luther King, Jr., who was dead.
The counselors told the male caller to stop calling the
shelter, and they hung up on him, but he kept calling. The
counselors became concerned that the caller might be preventing
others from using the crisis hotline; they also heard what
sounded like slapping noises in the background, causing them to
fear that someone was being abused. For these reasons, the
counselors called the police.
Anchorage Police Officer Dan Seely and another officer
went to the Budget Motel in Anchorage, after learning from police
dispatch that this address corresponded to the telephone number
recited by the caller. The two officers arrived at the motel at
11:12 p.m. and proceeded to Room 225. In response to the
officers' knock, McKillop opened the door to the room. He was
naked and apparently intoxicated.
Seely asked McKillop why he had been calling the AWAIC
shelter. McKillop at first denied that he had made the calls,
until Seely explained that the caller had disclosed his telephone
number and room number. McKillop then admitted that he had made
the calls. When Seely again asked why McKillop had made the
calls, McKillop answered, "Because Elvis Presley is king, and
Martin Luther King is dead." Seely recognized this statement as
the same one the anonymous caller had made to the AWAIC shelter
counselor. At this point, Seely left to obtain a warrant for
McKillop's arrest on a charge of harassment; the other officer
stayed until the warrant could be obtained and served.
McKillop asked the district court to suppress his
"Elvis is king" statement to Officer Seely. McKillop argued that
this statement had been obtained as a result of a warrantless
seizure, and he also argued that Seely had been obliged to
provide McKillop with Miranda warnings before he questioned him.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).
At the evidentiary hearing on this issue, Seely
testified that, when he and his fellow officer went to McKillop's
hotel room, McKillop had stepped out into the hallway wearing no
clothing. Other people in the motel hallway appeared to be
offended by McKillop's nakedness, so Seely suggested that
McKillop step back into his room. McKillop went along with this
suggestion. Seely followed McKillop over the threshold, stepping
into the doorway and thus partially into the room, to continue
their conversation. Seely testified that McKillop did not
specifically ask Seely to leave, but he did ask whether Seely had
a search warrant or arrest warrant or any other authority to be
there.
District Court Judge William H. Fuld declined to
suppress the "Elvis" statement. Judge Fuld concluded that Seely
and the officer had been merely investigating a crime and had not
placed McKillop in custody during the "fairly brief contact" that
began when Seely asked the naked McKillop to go back inside the
room and continued while Seely was standing in the threshold of
McKillop's room.
The test for whether a person is in "custody" for
Miranda purposes is generally framed as whether a reasonable
person would have felt free to break off questioning and ask the
police to leave. Hunter v. State, 590 P.2d 888, 895 (Alaska
1979); Edwards v. State, 842 P.2d 1281, 1284 (Alaska App. 1992).
However, the fact that a defendant lacks immediate freedom to
leave is not, by itself, determinative. A police-citizen
encounter can constitute a "seizure" for Fourth Amendment
purposes and yet not be "custody" for Miranda purposes. For
example, the police are not required to give Miranda warnings
during an investigative stop or detention of limited duration
even when "considerable force" was used in making the stop.
Tagala v. State, 812 P.2d 604, 608 (Alaska App. 1991).1
Here, the police knocked on McKillop's door and asked
if he had been making calls to the women's shelter. They made no
show of weapons, they did not engage in any search, and their
questioning of McKillop was not extensive. Because McKillop was
both drunk and naked, it was reasonable for the police to suggest
that their conversation be held in some place other than a public
hallway.
We recognize that McKillop repeatedly questioned the
officers' authority to be there. However, Seely testified that
McKillop never actually asked the police to leave, and no one
testified that McKillop made a move to close the door or
otherwise demonstrated that he wished an immediate end to the
conversation. Under these facts, Judge Fuld was not clearly
erroneous in finding that McKillop was not in Miranda custody
when he made his "Elvis" statement to the officers.
McKillop's next argument concerns the jury instructions
at his trial. McKillop was tried for harassment under AS 11.61.
120(a)(4), which reads:
A person commits the crime of harassment
if, with intent to harass or annoy another
person, that person
. . .
(4) makes an anonymous or obscene
telephone call or a telephone call that
threatens physical injury[.]
The State alleged that McKillop had violated this statute because
his telephone calls to the AWAIC shelter had been "anonymous".
McKillop asked District Court Judge Martha Beckwith to
instruct the jury that a telephone call was "anonymous" only if
the caller failed to provide information from which his identity
could reasonably be ascertained. McKillop pointed out that he
had given the telephone number of his motel and his motel room
number to the AWAIC counselors; he argued that his disclosure of
this information meant that his calls had not been anonymous.
Judge Beckwith decided, after referring to a
dictionary, that "anonymous" meant "nameless" or "lack[ing] ...
identification"; she told the parties that she intended to
instruct the jury accordingly. At this point, McKillop's
attorney asked the judge to refrain from giving the jury any
definition of "anonymous" and let the parties argue their own
views of how that term should be defined for purposes of the
harassment statute. Judge Beckwith acceded to this request.2 On
appeal, however, McKillop renews his primary argument: that his
telephone calls to the AWAIC shelter were not anonymous because
he disclosed the motel's telephone number and his room number.
The criminal code does not explicitly define the term
"anonymous", nor does the commentary to AS 11.61.120 address the
meaning of this term. We therefore use the word's common
meaning, as disclosed in the dictionary, as our primary aid in
determining the legislature's intent. Michael v. State, 767 P.2d
193, 197 (Alaska App. 1988), rev'd on other grounds, 805 P.2d 371
(Alaska 1991).
Webster's New World Dictionary of American English (3rd
College Ed. 1988), p. 56, gives two pertinent definitions of
"anonymous": (1) "with no name known or acknowledged" and
(2) "given, written, etc. by a person whose name is withheld or
unknown". Under these definitions, McKillop's telephone calls to
the women's shelter were anonymous. Courts in other states have
applied these or similar dictionary definitions of "anonymous"
when construing similar statutes prohibiting anonymous telephone
calls. See State v. Diede, 319 N.W.2d 818, 821-22 (S.D. 1982)
(holding that a defendant who failed to identify himself was
guilty of making "anonymous" telephone calls even though the
recipients of the calls had had sufficient experience with the
defendant to identify his voice); see also Caldwell v. State, 337
A.2d 476, 486 (Md. App. 1975).3
McKillop's proposed definition of "anonymous" would
have required the jury to determine, not only that McKillop had
failed to disclose his identity, but also that his identity could
not have been discovered through inquiry or investigation.
McKillop's proposal thus varied significantly from the commonly
understood definition of the word. McKillop's brief does not
explain or provide authority for his claim that the Alaska
legislature intended the word "anonymous" to be construed in the
non-standard way he suggests. We conclude that Judge Beckwith
did not abuse her discretion when she refused to give McKillop's
proposed definitions to the jury.
McKillop's final argument on appeal is that AS 11.61.
120(a)(4) is unconstitutionally broad - that it attaches criminal
penalties to protected speech.
McKillop argues that a person's wish to remain
anonymous cannot, of itself, be punished. He points out that
anonymous political speech (advocacy of social causes and attacks
on government figures and policies) holds an honored place in our
political tradition. See Talley v. California, 362 U.S. 60, 64-
65; 80 S.Ct. 536, 538-39; 4 L.Ed.2d 559 (1960). For example, the
Federalist Papers authored by Madison, Hamilton, and Jay were
published under pseudonyms. Talley, 362 U.S. at 65; 80 S.Ct. at
539. McKillop also argues that a person cannot be punished for
engaging in speech that annoys others. He notes that effective
political speech will often cause annoyance, anger, or alarm in
unsympathetic listeners. McKillop also points out that a speaker
will often not know whether his or her listeners will find the
speech annoying.
Here, however, the statute is not aimed at "pure
speech" or the content of speech _ the communication of ideas or
opinions. Rather, the statute is directed at conduct: the
caller's act of intruding upon someone else's privacy. AS
11.61.120(a)(4) prohibits a person from making anonymous
telephone calls for the purpose of annoying or harassing another.
The court in People v. Smith, 392 N.Y.S.2d 968, 970 (N.Y. App.
1977), cert. denied, 434 U.S. 920, characterized the issue well
when it declared that such a statute prohibits "a form of
trespass". Accord, State v. Gattis, 730 P.2d 497, 502 (N.M. App.
1986); State v. Elder, 382 So.2d 687, 690-691 (Fla. 1980).4
The conduct prohibited by AS 11.61.120(a)(4) may often
involve speech, but it need not. A person could violate the
statute by calling another person, listening in silence when that
person answered the phone, and then hanging up. Compare Gormley
v. Director, Connecticut Dept. of Probation, 632 F.2d 938, 942
(2nd Cir. 1980), cert. denied, 449 U.S. 1023; State v. Gattis,
730 P.2d at 502.
The fact that AS 11.61.120(a)(4) prohibits conduct that
may involve speech does not invalidate the statute on freedom of
speech grounds. A caller may use words as the method of
harassing the recipient of the call; this means only that AS
11.61.120(a)(4) deals with an aspect of conduct mixed with
speech.
[Making a course of conduct illegal] has
never been deemed an abridgement of freedom
of speech or press ... merely because the
conduct was in part initiated, evidenced, or
carried out by means of language, either
spoken, written, or printed.
Cox v. Louisiana, 379 U.S. 559, 563; 85 S.Ct. 476, 480;
13 L.Ed.2d 487 (1965). See State v. Elder, 362 So.2d at 690-691.
When a statute is aimed at conduct that involves speech, the
governing First Amendment test is stated in Broadrick v.
Oklahoma, 413 U.S. 601, 615; 93 S.Ct. 2908, 2918; 37 L.Ed.2d 830
(1973):
[When] conduct and not merely speech is in
volved, ... the overbreadth of a statute must
not only be real, but substantial as well,
judged in relation to the statute's plainly
legitimate sweep.
Thus, we must decide whether McKillop has shown that any possible
infringement of the right of free speech wrought by AS 11.61.
120(a)(4) is "real" and "substantial" when compared to the scope
of the statute's legitimate regulation of conduct.
The statute does not punish speech simply because it is
anonymous. While "the anonymity of the caller is ... itself a
circumstance raising discomfort and fear in the receiver of the
call", State v. Elder, 382 So.2d at 691, quoting United States v.
Darsey, 342 F.Supp. 311, 313 (E.D. Pa. 1972), nevertheless the
statute requires proof of an additional element: that the
caller's purpose was to annoy or harass the other person. Nor
does AS 11.61.120(a)(4) suffer from the defect of punishing
speech simply because it may have the effect of annoying the
listener. As the court noted in Constantino v. State, 255 S.E.2d
710, 713 (Ga. 1979), cert. denied, 444 U.S. 940,
[T]he victim's subjective ideas on what is or
is not harassing are not in issue. The point
is that the defendant telephones intending to
harass, and he certainly knows if he is doing
that.
This court used the same reasoning in Jones v.
Anchorage, 754 P.2d 275 (Alaska App. 1988), to uphold a municipal
ordinance making it illegal "for any person to anonymously or
repeatedly telephone another person for the purpose of annoying,
molesting, ... abusing ..., or harassing that person or his
family." 754 P.2d at 278.5 This court declared:
The ordinance challenged in this case
... is readily distinguishable from
provisions found to be invalid on grounds of
vagueness. Cases have condemned statutes as
unduly vague when those statutes prohibited
conduct or speech resulting in annoyance to
others, without ... specifying "upon whose
sensitivity a violation does depend - the
sensitivity of the judge or jury, the
sensitivity of the arresting officer, or the
sensitivity of a hypothetical reasonable
[person]."
In contrast, the ordinance challenged
here does not purport to hinge the unlawful
ness of speech or conduct on the
standardless, subjective reactions of
unspecified third persons. To the contrary
... [and] significantly, ... the lawfulness
or unlawfulness of the act turns ... on the
specific intent of the accused.
Jones, 754 P.2d at 278, quoting Coates v. City of Cincinnati, 402
U.S. 611, 613; 91 S.Ct. 1686, 1688; 29 L.Ed.2d 214 (1971).6
McKillop nevertheless argues that political speakers
often intend to "annoy" their listeners; political speech is
frequently intended to make people uncomfortable and force them
to re-examine their actions or convictions. McKillop therefore
concludes that the specific intent element does not save AS 11.
61.120(a)(4) from overbreadth.
We agree that a person engaging in advocacy or
criticism may legitimately intend to annoy or disturb his or her
listeners. Nevertheless, "the right of every person to be le[f]t
alone must be [weighed] in the scales [against] the right of
others to communicate." Rowan v. United States Post Office
Dept., 397 U.S. 728, 736; 90 S.Ct. 1484, 1490; 25 L.Ed.2d 736
(1970) (upholding a federal statute that requires the Post
Office, upon request of an addressee, to order businesses to
remove the addressee's name from their mailing lists for
"pandering advertisements").7
Under the general definition of "intentionally"
contained in AS 11.81.900(a)(1), a defendant's intent to cause a
prohibited result (here, annoyance or harassment) "need not be
the person's only objective". Thus, when AS 11.61.120(a)(4) is
read in conjunction with AS 11.81.900(a)(1), the statute is
theoretically broad enough to punish political speech or other
legitimate communication upon proof that one of the speaker's
subsidiary motives was to annoy the listener. Because the scope
of the statute is potentially so broad, we conclude that AS
11.61.120(a)(4) must be interpreted to prohibit telephone calls
only when the call has no legitimate communicative purpose - when
the caller's speech is devoid of any substantive information and
the caller's sole intention is to annoy or harass the recipient.
This court gave a similar limiting construction to the
municipal ordinance in Jones v. Anchorage, 754 P.2d at 279. This
limiting construction is consistent with AS 11.81.900(a)(1),
because the legislature has declared that the general definition
of "intentionally" is to be applied "unless the context requires
otherwise". Here, the First Amendment requires a different,
narrower definition.8
Applying this limiting construction to AS 11.61.120
(a)(4), we hold that the statute is neither vague nor overbroad.
So limited, the statute is a constitutional exercise of
legislative authority to regulate conduct involving speech.
Having reached this legal conclusion (that is, having given a
new, limiting construction to the harassment statute), we must
now examine the record of McKillop's trial to see if he might
have been convicted of harassment for engaging in protected
speech.
McKillop's main defense at trial was that his telephone
calls to the AWAIC shelter had not truly been anonymous.
However, McKillop's attorney also asked the jury to consider
whether McKillop's real intention had been to harass or annoy, or
whether, instead, McKillop had been drunkenly attempting to
communicate personal grievances, albeit through intemperate,
reprehensible language:
DEFENSE ATTORNEY: [E]vidence that the
defendant was intoxicated may be ... relevant
to negate an element of the offense that
requires that [he] intentionally caused a
result. In this case, the State has to show
that he intentionally called to harass or
annoy another person. And, for that, you can
take into consideration whether or not he was
intoxicated. ... You should take that into
consideration in deciding whether or not the
State's proved beyond a reasonable doubt
that, at the time he made these calls, [he]
intended really to harass or annoy, or if he
was just calling these people, venting ...
the feelings that he had, apparently, at that
moment, in his [state] of intoxication, that
he so heartfelt [sic] wanted to share. Even
though they were obnoxious, clearly.
Thus, McKillop asked the jury to consider whether the State had
proved the intent element of the crime.
As we have discussed above, this element of the statute
must be construed to require proof that McKillop's sole intent
was to harass or annoy. If McKillop truly intended to engage in
communicative speech when he made the calls to the AWAIC shelter,
then even if he also intended to harass or annoy, he should not
have been convicted. However, the district court's jury instruc
tion on this point tracked the language of AS 11.81.900(a)(1): "A
person may act intentionally with respect to causing a particular
result even though causing that result was not the person's only
objective." This instruction was erroneous; it told the jury to
convict McKillop even if they believed that, in addition to
trying to annoy or harass the women at the AWAIC shelter,
McKillop had also tried to engage in legitimate communication
with them.
From our description of the evidence at McKillop's
trial, it might well seem that his telephone calls to the AWAIC
shelter lie at the core of the statutory prohibition - anonymous
telephone calls intended only to abridge the privacy interests
the statute was designed to uphold, without any claim to
legitimate communication of ideas or information. However, this
was an issue of fact for the jury to decide. The court's
instructions on the elements of the offense in effect told the
jurors to ignore this crucial issue.
Because the error in the jury instructions lies in the
court's definition of the elements of the offense, we must
reverse McKillop's conviction and return his case to the district
court for a new trial unless we are convinced that the error was
harmless beyond a reasonable doubt. St. John v. State, 715 P.2d
1205, 1209-1211 (Alaska App. 1986). Despite the strength of the
State's case, we believe there is a reasonable possibility that
the jury's verdict would have been different if the jurors had
been correctly instructed on the elements of the offense. For
this reason, we REVERSE McKillop's harassment conviction and
remand his case to the district court for a new trial.
_______________________________
1 Compare Moss v. State, 823 P.2d 671, 674-75 (Alaska App.
1991), where this court, although declaring that the issue was
"close", concluded that a defendant had been in custody (even
though the police had told him that he was not formally under
arrest) when the police entered the defendant's residence at
gunpoint, questioned him extensively, spent two and one-half
hours searching the residence, and "deprived [the defendant] of
his freedom of action in a significant way".
2 McKillop's attorney argued to the jury (unsuccessfully)
that McKillop's phone calls to the shelter had not been anonymous
because, by divulging his telephone number and room number
(although not the name of his motel), McKillop had invited
discovery of his identity.
3 We note that 47 U.S.C. 223(a)(1)(B), the federal
counterpart to AS 11.61.120(a)(4), prohibits a person from
"mak[ing] 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." This
federal formulation appears to embody the same concept manifested
in the dictionary definition of "anonymous".
4 This aspect of the statute (that it prohibits telephone
calls that are intended to be annoying or harassing to the
recipient) distinguishes McKillop's case from two of the authori
ties he cites, Figari v. New York Telephone Co., 303 N.Y.S.2d 245
(N.Y. App. 1969), and Huntley v. Public Utilities Comm'n, 442
P.2d 685 (Cal. 1968).
Figari and Huntley involved telephone company attempts to
regulate an anti-communist group which produced pre-recorded
messages that people could listen to by calling an advertised
telephone number. The telephone companies tried to force the
anti-communist group to identify itself on the taped messages,
but the New York and California courts struck down the telephone
regulations as violative of the group's freedom of speech.
McKillop argues that Figari and Huntley stand for the proposition
that the government can never force people to identify
themselves. However, there is an obvious distinction between, on
the one hand, a person or group that offers people the
opportunity to call and hear a recorded message (if they wish)
and, on the other hand, a person who makes unsolicited calls to
other people for the purpose of annoying or harassing them.
5 The defendant in Jones made at least 38 abusive telephone
calls to her ex-boyfriend and his new girlfriend; in many of
these calls, she identified herself. 754 P.2d at 276-77. Thus,
the anonymity provision of the ordinance was not at issue;
rather, the question presented in Jones was the constitutionality
of the section of the ordinance prohibiting a person from
"repeatedly telephon[ing] another".
6 Courts are in virtually unanimous agreement that the
requirement of specific intent (that is, requiring the government
to prove that the caller's subjective purpose in making the call
was to annoy or harass) saves statutes such as AS 11.61.120(a)(4)
from vagueness problems. See State v. Elder, 382 So.2d at 691-
92, in which the court upheld the constitutionality of a statute
forbidding a person from "mak[ing] a telephone call ... without
disclosing his identity and with intent to annoy, abuse,
threaten, or harass any person at the called number".
Indeed, most decisions in this area deal with statutes that
simply forbid telephone calls made for the purpose of annoyance
or harassment, without the additional element that the caller
fail to identify himself. Such statutes are virtually always
upheld against vagueness attacks because they include the element
of specific intent. Jones v. Anchorage cites several of these
decisions. 754 P.2d at 278-79. Other cases reaching the same
conclusion are: United States v. Lampley, 573 F.2d 783, 787 (3rd
Cir. 1978); Donley v. City of Mountain Brook, 429 So.2d 603,
606-613 (Ala. Cr. App. 1982), rev'd on other grounds, 429 So.2d
618 (Ala. 1983); State v. Hagen, 558 P.2d 750, 753 (Ariz. App.
1976); People v. Weeks, 591 P.2d 91, 94 & n.1 (Colo. 1979);
Kinney v. State, 404 N.E.2d 49, 50-51 (Ind. App. 1980); Caldwell
v. State, 337 A.2d 476, 481-82 (Md. App 1975); State v. Gattis,
730 P.2d 497, 502-03 (N.M. App. 1986); and People v. Smith, 392
N.Y.S.2d 968, 970-71 (N.Y. App. 1977), cert. denied, 434 U.S. 920
(1977).
7 We also note that what begins as protected speech may
ultimately violate the harassment statute. See, for example,
People v. Smith, 392 N.Y.S.2d 968, in which a citizen repeatedly
called the police department to make a complaint. The police
informed him several times that the matter was civil and that he
was tying up police phone lines; he nevertheless continued to
call the police 27 times in the following 3« hours. The court
held that "the impropriety was not in the complaint made by the
defendant but in its repetition." Id. at 971. That is, the
caller's actions provided a basis for a fact-finder to conclude
that the caller had previously accomplished any legitimate
communication and his sole intent had become to annoy or harass.
8 This same limitation is sometimes explicitly written into
other states' statutes. See Donley v. City of Mountain Brook,
429 So.2d at 605 ("with intent to harass or alarm [and] with no
purpose of legitimate communication"), and Kinney v. State, 404
N.E.2d 49, 50 (Ind. App. 1980) ("with intent to harass, annoy, or
alarm another person, but with no intent of legitimate communi
cation"). More often, a telephone harassment statute is silent
on this point, and the limitation is inferred by courts. State
v. Gattis, 730 P.2d at 503; State v. Elder, 382 P.2d at 691;
United States v. Lampley, 573 F.2d at 787 (Congress has a "compel
ling interest in the protection of innocent individuals from
fear, abuse, or annoyance at the hands of persons who employ the
telephone, not to communicate, but for other unjustifiable
motives."). But compare Gormley v. Director, Connecticut Dept.
of Probation, 632 F.2d at 942-43 & n.5 (suggesting that a
harassment statute that requires proof of specific intent has so
little potential for abridging protected speech that it requires
no additional limiting gloss).
