Opinion
No. 26959
Decided March 7, 1977. Rehearing denied April 4, 1977.
Defendant was convicted of violating the wiretapping statute and appealed.
Affirmed
1. WIRETAPPING AND EAVESDROPPING — Definition — Defense — Notice to Public — Statute. Under section 18-9-305(1), C.R.S. 1973, the legislature granted an affirmative defense to those charged with the statutory offense of wiretapping; actually, the statute was not intended to prevent any person from using wiretapping or eavesdropping devices on his own premises for security or business purposes provided reasonable notice of the use of such devices was given to the public.
2. "Reasonable Notice" to Public — Burden — Party Installing Wiretap — Instruction — Proper. Where defendant was hired by president of company to place wiretaps on phone lines of his company, defendant thereby acting as agent of company in installing the wiretap, and where trial court, in instructing jury as to elements of crime of wiretapping (section 18-9-305(1), C.R.S. 1973), adopted the position that the burden of giving "reasonable notice" to the public could be placed upon the party who installed the wiretap, held, in so doing, trial court acted properly.
3. Affirmative Defense — Effective — Reasonable Notice to Public — Burden — Defendant. The affirmative defense to the crime of wiretapping does not take effect until reasonable notice is given to the public by the agent, the owner, or some third party; and the burden was on the defendant, who asserted the affirmative defense, to prove that public notice was given.
4. Responsibility — Rule — Exemption — Exception. Criminal responsibility for wiretapping is the rule; exemption from criminal liability is the exception, which hinges upon the giving of notice to the public.
5. CRIMINAL LAW — Employee — Acting for Another — No Defense — Intentional. The fact that a person is acting as an employee of another constitutes no defense in a criminal prosecution where the individual charged intentionally violated the law.
6. WIRETAPPING AND EAVESDROPPING — Statute — Failure to State — Who — How — — Unconstitutionally Vague — Negative. Section 18-9-305(1), C.R.S. 1973 — which provides, in regard to the crime of wiretapping, that a person is not prevented from using wiretapping or eavesdropping devices on his own premises for security or business purposes if reasonable notice is given to the public — is not unconstitutionally vague in failing to delineate who has responsibility of giving such notice or in failing to state how such notice is to be given.
7. CONSTITUTIONAL LAW — Statute — Unconstitutional — Court — Means — Discover — Prohibited. Courts should not seek to discover means to hold a statute unconstitutional.
Appeal from the District Court of the City and County of Denver, Honorable Joseph R. Quinn, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy, Edward G. Donovan, Solicitor General, E. Ronald Beeks, Assistant, for plaintiff-appellee.
Pacheco Auer, Donald N. Pacheco, Alfred C. Harrell, Normando R. Pacheco, for defendant-appellant.
In 1971, Harold Northrup, president and sole stockholder of the Arvada Hardwood Floor Company, hired the defendant, Bernard A. ("Bud") McCauley, to place wiretaps on the phone lines of his company. The wiretaps were intended to be for "business security purposes." Pursuant to his contract with Northrup, the defendant directed the installation of several wiretaps, but did not place any signs on the premises or otherwise attempt to give any public notice that electronic listening devices had been installed. Northrup, likewise, did not provide notice of any kind. The testimony presented at the trial is in conflict as to whether the defendant actually relied upon Northrup to provide public notice. However, the uncontradicted testimony of all witnesses is that the wiretap was purposely installed at night so that the employees would not be aware of the surreptitious eavesdropping device.
The jury convicted the defendant of violating the wiretapping statute, 1967 Perm. Supp., C.R.S. 1963, 40-4-28. On appeal, the defendant claims that the statute is unconstitutionally vague and that the trial court erred in placing the burden of giving public notice upon the party who installed the wiretap. We affirm.
Now section 18-9-303(1), C.R.S. 1973.
I.
Burden of Giving Notice
[1] The legislature granted an affirmative defense to those charged with the statutory offense of wiretapping. 1967 Perm. Supp., C.R.S. 1963, 40-4-31, provides that the crime of wiretapping which is in issue in this case was not intended to "prevent any person from using wiretapping or eavesdropping devices on his own premises for security or business purposes if reasonable notice of the use of such devices is given to the public . . ." (Emphasis added.)
Now section 18-9-305(1), C.R.S. 1973.
[2] It is uncontested that the defendant acted as the agent of Northrup in installing the wiretap. In instructing the jury as to the elements of the crime, the trial court adopted the position that the burden of giving "reasonable notice" to the public could be placed upon the party who installed the wiretap. We agree.
[3] The legislature was specific in delineating the requirement of public notice as a condition precedent to the assertion of the "security or business purpose" defense to the crime of wiretapping. While the statute does not specifically designate who is to give notice, the statute does require that public notice be given if the affirmative defense is to be invoked. The burden was on the defendant, who asserted the affirmative defense, to prove that public notice was given. The affirmative defense does not take effect until reasonable notice is given to the public by the agent, the owner, or some third party.
[4] Even a cursory reading of the affirmative defense provision of the wiretapping statute reflects the legislative intent that public notice must accompany the use of an eavesdropping device for "business security" purposes to obtain the statutory exemption from criminal liability. By placing the burden of proving that the required notice was given upon the party charged under the statute, all parties involved in "business security" wiretap activities, whether as owners, agents, or independent contractors, have an incentive for seeing that reasonable notice is given to the public. Criminal responsibility for wiretapping is the rule; exemption from liability is the exception which hinges upon the giving of notice to the public.
[5] To permit an agent or independent contractor to escape liability under the substantive provisions of the wiretapping statute, simply by pointing to the failure of his employer to give the requisite notice, would be to impose the law of agency into the criminal law. As we said in LaVielle v. People, 113 Colo. 277, 157 P.2d 621 (1945):
"Of course, the fact that a person is acting as an employee of another constitutes no defense in a criminal prosecution where the individual charged intentionally violated the law."
Accord, Wainer v. United States, 82 F.2d 305 (7th Cir.) (employee of illegal distiller guilty as principal), aff'd, 299 U.S. 92, 57 S.Ct. 79, 81 L.Ed. 58 (1936); McNamara v. Johnston, 522 F.2d 1157 (7th Cir. 1975) ("agent cannot be insulated from criminal liability by the fact that his principal authorized his conduct"); Beachman v. State, 289 P.2d 397 (Okla. Crim. 1955) ("The law of agency, as applied in civil cases, has no application in criminal cases, and no man can escape punishment when he participates in the commission of a crime upon the ground that he simply acted as an agent for any party."); Restatement (Second) of Agency § 359A ("a servant or other agent is not relieved from criminal liability for conduct otherwise a crime because of a command of his principal") and Comment(a) ("there are no [criminal] defenses peculiar to agents") (1958).
II.
Vagueness
[6] The defendant also contends that the statute is unconstitutionally vague, in that it fails to delineate who has the responsibility of giving notice and does not state "how notice is to be given." The burden of proof on the notice issue has already been answered. The contention that the statute is invalid because the manner of providing notice is not specified is also without merit. As we said in People v. Garcia, 189 Colo. 347, 541 P.2d 687 (1975):
"The burden of proof [beyond a reasonable doubt] is especially difficult where the party seeks to attack a statute's facial validity, so long as there is no potential inhibition of certain constitutional freedoms, such as the freedom of speech. If such a statute is directed at a substantial range of conduct which is plainly within its prohibition, it will not be struck down as vague merely because marginal cases could be imagined where doubts might arise in its application. [Citations omitted.] Disputes concerning the application of a criminal statute to marginal cases can be more meaningfully resolved according to the rules of strict construction of the statutory terms within the context of the specific facts of the case. Only where the statute provides no discernible standards at all for defining any proscribed conduct should the harsh remedy of voiding a statute on its face be employed." (Emphasis added.)
[7] The salutary principle behind this rule is simply the recognition that courts should not seek to discover means to hold a statute unconstitutional. See United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). We can discern no fundamental right which is transgressed or chilled by the statutory proscriptions. Compare Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). Moreover, we have previously upheld a criminal statute which left to the jury the determination of "reasonableness." See People v. Prante, 177 Colo. 243, 493 P.2d 1083 (1972) ("The fact that a penal statute is framed in a way such as to require a jury to determine a question of reasonableness does not make it too vague to afford a practical guide to acceptable behavior."), citing United States v. Ragen, 314 U.S. 513, 62 S.Ct. 374, 86 L.Ed. 383 (1942). As in People v. Prante, supra, this case involves an attack upon a provision which was not constitutionally required and which provided a "beneficial inurement to anyone charged under the statute," if a condition was met.
[9] Finally, it is undisputed that absolutely no notice was provided to the public and that, in fact, the wiretap was carefully installed in secrecy. Even under the strictest construction of the statute in favor of the defendant, it is difficult to find a basis for applying an affirmative defense which requires that notice be given when the uncontradicted fact is that no notice was given. The facts of this case fall outside the protective sphere of the affirmative defense, and the defendant cannot complain of the existence of more marginal hypothetical cases. See People v. Garcia, supra. Based upon these considerations, we find that the defendant has not met the burden of establishing that the statute is unconstitutional beyond a reasonable doubt. See People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975); People v. Summit, 183 Colo. 421, 517 P.2d 850 (1974).
The defendant's other contentions are without merit.
Accordingly, we affirm.
MR. CHIEF JUSTICE PRINGLE, MR. JUSTICE HODGES, and MR. JUSTICE GROVES concur.
MR. JUSTICE LEE and MR. JUSTICE CARRIGAN dissent.
MR. JUSTICE KELLEY does not participate.