Appeal from the Circuit Court of Cook County. No. 04 CR 25402 The Honorable Bertina E. Lampkin, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
Following a bench trial, defendant, Ricky Butler, was convicted of harassment of a witness and sentenced, as a Class X offender, to eight years' imprisonment. On appeal, defendant contends that the witness harassment statute is unconstitutionally overbroad and vague on its face. Defendant additionally contends that the State failed to prove him guilty of witness harassment beyond a reasonable doubt.
The evidence adduced at trial demonstrated that, on September 27, 2004, defendant was arrested in connection with a misdemeanor attempted theft. Chau Troung filed the related complaint after he and his employee, Cornelio Rivera, found defendant on the roof of Troung's business. The next day, at around 8 a.m., Troung and Rivera were inspecting the exterior building of the business when they noticed defendant walking across the street, approximately 20 to 25 feet away. At that time, defendant yelled "Mr. Troung, I will kill you. You filed a complaint against me. I'm going to kill you mother------s. I know what time you're leaving.
*** I know what time you come in the morning." Throughout the rant, defendant pointed at both Troung and Rivera. Thereafter, Troung contacted the police and filed a second complaint against defendant. Defendant was subsequently arrested.
At trial, Troung and Rivera testified consistently with the above facts. Troung additionally testified that he never saw defendant with any weapons.
Officer Karlene Gurtowski testified that she responded to the initial report of attempted theft on September 27, 2004. She spoke to Troung at his place of business and arrested defendant after finding him hiding nearby. Troung also called Gurtowski the next day after the second incident with defendant. Gurtowski was not on duty at that time; however, she advised Troung to either call 911 or file a report at the police station. Gurtowski became aware of Troung's subsequent harassment complaint on October 3, 2004, and arrested defendant thereafter.
The trial court ultimately found defendant guilty of harassment of a witness. Specifically, the trial court determined that the instant case was a "classic harassment of a witness," in that Troung was a witness in a pending legal proceeding against defendant and defendant directly communicated a "harassing and knowing threat" to Troung and Rivera. Following a hearing, defendant was sentenced, as a Class X offender, to an eight-year prison term. This timely appeal followed.
Defendant first contends that the witness harassment statute is unconstitutionally overbroad and vague on its face. Specifically, defendant argues that the statute is overbroad because "it criminalizes a substantial amount of expression protected by the First Amendment" and is vague because it provides "an incomprehensible standard of conduct" and "authorizes arbitrary enforcement." The State responds that the statute is neither overbroad nor vague and is thus constitutional.
We review constitutional challenges to a statute de novo. People v. Greco, 204 Ill. 2d 400, 407 (2003). All statutes are presumptively constitutional, and the party challenging the validity of a statute bears the burden of rebutting that presumption by proving a clear constitutional violation. Greco, 204 Ill. 2d at 406. On review, where reasonably possible, a statute must be construed to uphold its validity and constitutionality. Greco, 204 Ill. 2d at 406.
The witness harassment statute, section 32-4a(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/32-4a(a) (West 2004)), posits:
"A person who, with intent to harass or annoy one who has served or is serving *** (1) as a juror because of the verdict returned by the jury in a pending legal proceeding *** or (2) as a witness, or who may be expected to serve as a witness in a pending legal proceeding, *** because of the testimony or potential testimony of the witness ***, communicates directly or indirectly with the juror, witness or person who may be expected *** to serve as a witness *** in such manner as to produce mental anguish or emotional distress or who conveys a threat of injury or damage to the property or person of any juror, witness or person who may be expected *** to serve as a witness *** commits a Class 2 felony."
Defendant initially argues that the witness harassment statute is overbroad because it criminalizes constitutionally protected speech. "The doctrine of overbreadth is designed to protect first amendment freedom of expression from laws written so broadly that the fear of punishment might discourage people from taking advantage of the freedom." People v. Bailey, 167 Ill. 2d 210, 226 (1995). The doctrine is used sparingly; therefore, to result in a statute's invalidation, the overbreadth must be real and substantial. Bailey, 167 Ill. 2d at 226.
Keeping the presumption of constitutionality in mind, we determine that the statute at issue does not overbroadly sweep protected speech within its purview. The Fifth District agreed in People v. Calvert, 258 Ill. App. 3d 504, 512-13 (1994), when it expressly upheld the constitutionality of section 32-4a(a). To the extent that the instant case is distinguishable, we separately find that the statute is constitutional. The statute protects jurors and witnesses involved in legal proceedings from individuals who, with the specific intent to harass or annoy, engage in a communication that causes either mental anguish or emotional distress or conveys a threat. See 720 ILCS 5/32-4a(a) (West 2004). Although communication is an element of the statute, our supreme court was particularly instructive in People v. Williams, 133 Ill. 2d 449, 456 (1990), in announcing that "[a]ctivities which the State may otherwise validly proscribe are not drawn within the protection of the first amendment merely by virtue of the fact that some or all of their elements are verbal in nature."
Defendant's hypothetical scenarios, i.e.,an attorney engaging in cross-examination or a reporter asking "tough" questions, are not reasonable demonstrations of constitutionally protected conduct punishable by the statute. See Calvert, 258 Ill. App. 3d at 511. The punishable behavior is narrowed by the elements of the witness harassment statute, such that the specific intent element must be satisfied; the communication must have been directed at a juror because of his verdict or a witness because of his testimony; and it must have caused either mental anguish or emotional distress or conveyed a threat. See 720 ILCS 5/32-4a(a) (West 2004). However, if such unreasonable charges were brought against an individual engaging in protected speech, as hypothesized by defendant, the situation could be remedied on a case-by-case basis with a limiting instruction. See New York v. Ferber, 458 U.S. 747, 773-74, 73 L.Ed. 2d 1113, 1133, 102 S.Ct. 3348, 3363 (1982). Moreover, although in People v. Klick, 66 Ill. 2d 269, 273-75 (1977), the supreme court struck as overbroad a statute criminalizing any phone call made with the intent to annoy, the concern there was that, as written, the statute "could apply to conduct other than that which might provoke a breach of the peace." No such fear ...