CITY OF LANSING
v.
HARTSUFF
Docket No. 163095.
Michigan Court of Appeals.
Submitted February 16, 1995, at Lansing. Decided September 8, 1995, at 9:30 A.M.Alvan P. Knot, City Attorney, and Landis Y. Lain, Associate City Attorney, for the people.
Stephen C. Rulison & Assoc., P.C. (by Stephen C. Rulison), for the defendants.
Before: MICHAEL J. KELLY, P.J., and McDONALD and GRIFFIN, JJ.
GRIFFIN, J.
Defendants appeal by leave granted an order of the circuit court affirming defendants' convictions following a jury trial in the 54-A District Court. Defendant Roger Hartsuff was convicted of disturbing the public peace and quiet by loud or boisterous conduct in a public place, Lansing Ordinances, § 664.01, and hindering, opposing, obstructing, or resisting a police officer in the performance of his duties, Lansing Ordinances, § 602.02. Defendant Timothy Hartsuff was convicted of the latter charge only. Both defendants were sentenced to six months of probation, fourteen days in jail, and a $300 fine. We affirm with respect to both defendants.
*341 I
On March 15, 1991, Hazel Woodruff, the live-in girl friend of Timothy Hartsuff, called the Lansing Police Department at approximately 9:45 P.M. Woodruff informed the police department that the Hartsuff brothers were arguing outside Timothy Hartsuff's home. Both defendants had been drinking and were pushing each other while arguing. Woodruff testified that she called the police because she wanted the argument stopped "before someone got hurt."
Following Woodruff's call, Lansing police officers Ronald Seyka and James Gill were dispatched to the disturbance. Officer Seyka arrived first and heard both defendants using profanity. While in his driveway, Timothy Hartsuff told Officer Seyka: "You can leave. This is a family problem. Get the hell out of here."
A short time later, Woodruff went outside and began speaking to Officer Seyka. During her conversation with the officer, the argument between defendants became more heated with Roger Hartsuff's repeated use of profanity. Officer Seyka warned Roger Hartsuff several times to stop using "loud and profane" language. Thereafter, Officer Seyka attempted to mediate the dispute by separating the Hartsuff brothers and talking to each man.
Officer Gill arrived approximately two or three minutes after Officer Seyka. Following Gill's arrival, Roger Hartsuff stated: "There's another ass____. Here comes another ass____." At this point, Officer Seyka informed Roger that he would be arrested for any more outbursts. Roger's wife, Linda Hartsuff, then attempted to push her husband toward the house. However, as Officer Gill got out of his vehicle, Roger shouted additional *342 obscenities. Officer Gill immediately advised Roger Hartsuff that he was under arrest for being "loud and profane."
Following the outburst, Roger Hartsuff was pushed into the house by his wife. Officer Gill followed Roger into the home to effectuate Roger's arrest. Once the officer was inside, Timothy Hartsuff began pushing Officer Gill in the chest. Officer Seyka then entered the home and witnessed the pushing incident. As both officers attempted to arrest Timothy Hartsuff, Timothy refused to place his hands behind his back and repeatedly pushed Officer Gill. According to the testimony of both officers, Roger then came up behind Timothy and punched Officer Gill in the face, breaking Gill's eyeglasses. Both defendants were eventually subdued and arrested.
II
On appeal, defendant Roger Hartsuff challenges the constitutionality of Lansing Ordinances, § 664.01(b) on the ground that it is vague.[1] Defendant *343 Roger Hartsuff claims that the ordinance, which prohibits "[d]isturbing the public peace and quiet by loud or boisterous conduct," lacks sufficient standards to define prohibited behavior. We disagree.
Recently, in People v Lino, 447 Mich. 567, 575-576; 527 NW2d 434 (1994), the Supreme Court summarized the following rules for resolving challenges for vagueness:
Defendants challenge MCL 750.338; MSA 28.570, as being unconstitutionally vague. In order to pass constitutional muster, a penal statute must define the criminal offense "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v Lawson, 461 U.S. 352, 357; 103 S. Ct. 1855; 75 L. Ed. 2d 903 (1983) (citations omitted). Vagueness challenges that do not implicate First Amendment freedoms are examined in light of the facts of each particular case. People v Howell, 396 Mich. 16, 21; 238 NW2d 148 (1976). When making a vagueness determination, a court must also take into consideration any judicial constructions of the statute. Kolender at 355.
Thus, there are at least three ways a penal statute may be found unconstitutionally vague: (1) failure to provide fair notice of what conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3) being overbroad and impinging on First Amendment freedoms.
See also People v White, 212 Mich. App. 298; 536 NW2d 876 (1995).
Additionally, there is a presumption of constitutionality *344 of ordinances, Detroit v Qualls, 434 Mich. 340, 364; 454 NW2d 374 (1990), and the person challenging the ordinance has the burden of rebutting the presumption. Id.; 1426 Woodward Ave Corp v Wolff, 312 Mich. 352, 357; 20 NW2d 217 (1945); People v Sell, 310 Mich. 305; 17 NW2d 193 (1945). Also, a statute or ordinance is not unconstitutional simply because it is unwise or unfair. Doe v Dep't of Social Services, 439 Mich. 650, 681; 487 NW2d 166 (1992); Manistee Bank & Trust Co v McGowan, 394 Mich. 655, 666-667; 232 NW2d 636 (1975).
At issue in the present case are the words "loud or boisterous" as contained in the Lansing ordinance. Defendant Roger Hartsuff argues that this phrase is unduly subjective and vague, thereby making it susceptible to arbitrary and capricious enforcement. Further, he asserts that the language of the ordinance is imprecise and, therefore, deficient in providing the requisite notice to citizens of the proscribed conduct.
In Kovacs v Cooper, 336 U.S. 77; 69 S. Ct. 448; 93 L. Ed. 513 (1949), the United States Supreme Court addressed a similar challenge to an ordinance forbidding amplification of "loud and raucous" noises. There, the Supreme Court stated:
The contention that the section is so vague, obscure and indefinite as to be unenforceable merits only a passing reference. This objection centers around the use of the words "loud and raucous." While these are abstract words, they have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden. [Id. at 79.]
Like the words "loud and raucous," the phrase "loud or boisterous," as used in the Lansing ordinance, is sufficiently precise to be constitutional. *345 See also Jones v City of Meridian, 552 So 2d 820 (Miss, 1989) (the terms "loud," "offensive," "intimidation," and "breach of the peace" not unconstitutionally vague); City of Seattle v Eze, 111 Wash 2d 22; 759 P2d 366 (1988) (the term "loud or raucous" not inherently vague); Normal v Stelzel, 109 Ill App 3d 836; 65 Ill Dec 378; 441 NE2d 170 (1982) (the term "loud and raucous" not unconstitutional); State v Johnson, 112 Ariz 383; 542 P2d 808 (1975) (the term "loud or unusual noise" not vague); Hess v State, 260 Ind 427; 297 NE2d 413 (1973), rev'd on other grounds 414 U.S. 105; 94 S. Ct. 326; 38 L. Ed. 2d 303 (1973) (statute proscribing acting in a "loud, boisterous, or disorderly manner" not vague); People v Fitzgerald, 194 Colo 415; 573 P2d 100 (1978) (the term "unreasonable noise" not vague).
We agree with the lower court that an ordinary person exercising common sense can sufficiently understand the term "loud or boisterous," especially when the term is modified by the phrase "disturb the public peace and quiet." By the same token, we conclude that the term is not so subjective and vague as to permit unlimited discretion on the part of prosecutors, police officers, and jurors.
Furthermore, whenever possible, our courts must endeavor to construe statutes and ordinances in a constitutional manner. People v Hayes, 421 Mich. 271, 284; 364 NW2d 635 (1984); People v Capriccioso, 207 Mich. App. 100, 103; 523 NW2d 846 (1994). In this regard, we find persuasive the analysis of the Ohio Supreme Court in State v Dorso, 4 Ohio St 3d 60; 446 NE2d 449 (1983). In Dorso, the ordinance at issue proscribed the playing of music, loud talking, amplification of sound, and other noises "in such a manner to disturb the peace and quiet of the neighborhood." In upholding the constitutionality *346 of the ordinance, the Ohio Supreme Court reasoned as follows:
[H]ere we adopt the approach taken by our counterpart in State v Chaplinsky, 91 NH 310; 18 A2d 754 (1941), and subsequently endorsed by the United States Supreme Court in Chaplinsky v New Hampshire, 315 U.S. 568 [62 S. Ct. 766; 86 L. Ed. 1031] (1942). In appraising the constitutionality of a statute which criminalized directing "offensive, derisive or annoying" words to another, the New Hampshire court interpreted the statute so as to obviate any potential ambiguities. The New Hampshire court, at page 320, stated: "The word `offensive' is not to be defined in terms of what a particular addressee thinks.... The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight." The United States Supreme Court cited the identical passage in affirming the state court's decision and rejecting claims of the Chaplinsky statute's unconstitutionality. Chaplinsky v New Hampshire [supra at 573.]
Following the persuasive lead of the Chaplinsky tribunals, we construe the Cincinnati ordinance at issue to prohibit the playing of music, amplification of sound, etc., in a manner which could be anticipated to offend the reasonable person, i.e., the individual of common sensibilities. Specifically, we find the ordinance to proscribe the transmission of sounds which disrupt the reasonable conduct of basic human activities, e.g., conversation or sleep. Our construction of the ordinance does not permit the imposition of criminal liability upon a party whose conduct disturbs only the hypersensitive. Thus, the standard hereby adopted vitiates the claimed vagueness of the ordinance. [Id. at 63.]
Similarly, in the present case, we construe the Lansing ordinance to refer to noise levels that would offend a reasonable person of common sensibilities and disrupt the reasonable conduct of basic *347 human activities. Under this construction, noise or sounds that would not offend a nearby reasonable man cannot be punished under the ordinance. For this reason, culpability necessarily depends on all the surrounding facts and circumstances. For example, those playing a spirited neighborhood touch football or basketball game after school are without culpability while those engaged in the same conduct in the middle of the night would be blameworthy. In light of our construction, we conclude that the ordinance is sufficiently precise to overcome the vagueness challenge.
To the extent that defendant Roger Hartsuff argues that his conviction was not supported by sufficient evidence that he disturbed the public peace, this argument is without merit. Viewed in a light most favorable to the prosecution, we conclude that there was sufficient evidence to justify the submission of the charge to the jury. Hazel Woodruff testified that she could hear both defendants arguing outside her home. Similarly, Officer Seyka testified that defendant Roger Hartsuff was sufficiently loud to be heard across the street and by Roger's neighbors. The sounds from the disturbance caused at least one of defendant's neighbors to go outside. Under these circumstances, the trial court did not err in denying defendant Roger Hartsuff's motion for a directed verdict.
III
Next, both defendants argue that the trial court's instructions at trial denied them a fair trial. Defendants claim that the trial court failed to instruct the jury regarding the impeachment of Officer Gill and the proper elements of the charge of disturbing the public peace or quiet by loud or boisterous conduct.
*348 Jury instructions are to be viewed as a whole rather than extracted piecemeal to establish error. People v Kelly, 423 Mich. 261, 270-271; 378 NW2d 365 (1985); People v Dabish, 181 Mich. App. 469, 478; 450 NW2d 44 (1989). A defendant is not entitled to a new trial if the instructions sufficiently protected the rights of the defendant and fairly presented to the jury the issues to be tried. People v Holt, 207 Mich. App. 113, 116; 524 NW2d 249 (1994); People v Gaydosh, 203 Mich. App. 235, 237; 512 NW2d 65 (1994); People v Davis, 199 Mich. App. 502, 515; 503 NW2d 457 (1993). Furthermore, the omission of an instruction is not error warranting reversal if the instructions as a whole cover the substance of the omitted instruction. People v Bender, 124 Mich. App. 571, 575; 335 NW2d 85 (1983); People v Bradley, 62 Mich. App. 39; 233 NW2d 177 (1975).
We conclude that the jury instructions, when viewed in their entirety, sufficiently protected the rights of defendants and fairly presented the issues to be tried. The trial court instructed the jury regarding the credibility of witnesses in general and police officers in particular. In addition, the jury was read defendants' theory of the case alleging that "[f]rom the contradiction in testimony, the defendants believe the police are being untruthful." We believe that these instructions adequately covered the substance of the omitted instruction. Similarly, defendants' other claim of error is equally without merit. The trial court properly instructed the jury regarding the elements of the charged crime.
IV
Defendants further argue that they were denied a fair trial by the trial court's comments during *349 trial concerning Officer Gill's credibility. Defendants claim that these comments impermissibly removed the determination of the credibility of the witness from the province of the jury.
At trial, the following colloquy occurred after defense counsel attempted to introduce into evidence two copies of a supplemental police report bearing different dates:
Mr. Rulison [Defense Counsel]: Well, your Honor, they are prior statements of the witness that are inconsistent and show impeachment. 801(d)(1), inconsistent statements of a prior or of a witness are not hearsay, therefore, I would move for their admission on the basis that there is no reasonable objection to them. Thank you, your Honor. They've been authenticated as well, your Honor.
The Court: Well, the Court I haven't heard from the City yet, but I don't know of any exception to the hearsay rule. As I said before out of the presence of the jury, I'm now saying in the presence of the jury the declarant is present and available to testify, and the declarant has adequately explained away the discrepancy in the dates. For those reasons, neither exhibit is received. But your objection is noted for the record.
In People v Collier, 168 Mich. App. 687, 698; 425 NW2d 118 (1988), we set forth the following analysis for determining whether a trial court's comments or conduct deprive a defendant of his right to a fair and impartial trial:
Michigan case law provides that a trial judge has wide discretion and power in matters of trial conduct. People v Cole, [349 Mich. 175; 84 NW2d 711 (1957)] supra, p 199. This power, however, is not unlimited. If the trial court's conduct pierces the veil of judicial impartiality, a defendant's conviction must be reversed. People v London, 40 *350 Mich App 124, 129-130; 198 NW2d 723 (1972); People v Wilson, 21 Mich. App. 36, 37-38; 174 NW2d 914 (1969). The appropriate test to determine whether the trial court's comments or conduct pierced the veil of judicial impartiality is whether the trial court's conduct or comments "were of such a nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and impartial trial." People v Rogers, 60 Mich. App. 652, 657; 233 NW2d 8 (1975), lv den 406 Mich. 918 (1979). See People v Burgess, 153 Mich. App. 715, 719; 396 NW2d 814 (1986).
In this case, we conclude that the trial judge's remarks to defense counsel did not pierce the veil of judicial impartiality so as to unduly influence the jury. Taken in context, the remarks were clearly an observation by the trial judge concerning the foundation requirements for the admission of the evidence rather than a comment on the overall credibility of the police witness. Further, any potential prejudice was alleviated by the trial court's instructions to the jury concerning the credibility of police officers. Under these circumstances, we conclude that defendants were not deprived of their right to a fair and impartial trial.
V
Next, we consider defendants' claim that the trial court abused its discretion in denying defendants' request for an adjournment during defense counsel's cross-examination of Officer Gill. Defendants argue that the trial court's decision to allow defense counsel only approximately twenty minutes to study a supplemental police report prepared by Officer Gill denied defendants a fair trial.
A trial court's decision whether to grant or deny a motion for a continuance is subject to review for an abuse of discretion. People v Sinistaj, 184 Mich *351 App 191, 201; 457 NW2d 36 (1990); People v Sekoian, 169 Mich. App. 609, 613; 426 NW2d 412 (1988). In making such a determination, we consider whether "(1) the defendant was asserting a constitutional right; (2) he had a legitimate reason for asserting that right; (3) he was not negligent in asserting it; (4) prior adjournments of trial were not at his request; and (5) on appeal, he has demonstrated prejudice resulting from the trial court's abuse of discretion." Sinistaj, supra at 201, citing People v Wilson, 397 Mich. 76; 243 NW2d 257 (1976), and People v Williams, 386 Mich. 565, 578; 194 NW2d 337 (1972). See also People v Lawton, 196 Mich. App. 341, 348; 492 NW2d 810 (1992).
Under the facts of this case, we conclude that defendants have failed to demonstrate any prejudice resulting from the trial court's claimed abuse of discretion. Although defense counsel was given only approximately twenty minutes to review the police report, the supplemental report was only one page in length. In addition, the supplemental report differed from the original police report only with respect to the location of defendant Roger Hartsuff before he was placed under arrest. Defendants have failed to carry their burden of proving how this information materially affected their defense. Accordingly, we conclude that defendants were not denied a fair trial by the trial court's denial of their request for a continuance.
In regard to defendants' claim that the trial court abused its discretion in denying their request to admit the police reports into evidence, we decline to review this issue. This issue was not preserved for appeal because it was not set forth in defendant's statement of the questions involved. MCR 7.212(C)(5); People v Yarbrough, 183 Mich. App. 163, 165; 454 NW2d 419 (1990).
*352 VI
Finally, defendants argue that defendants' convictions of resisting and obstructing a police officer should be reversed because the police officers acted unlawfully in entering Timothy Hartsuff's residence to effectuate a misdemeanor arrest. This argument is wholly without merit. Even if we were to agree with defendants' position, the sole remedy for an illegal arrest is suppression of the evidence, not dismissal of the charges. People v Burrill, 391 Mich. 124, 133; 214 NW2d 823 (1974); People v Chambers, 195 Mich. App. 118, 120; 489 NW2d 168 (1992); People v Dalton, 155 Mich. App. 591, 597; 400 NW2d 689 (1986). Because defendants do not challenge the seizure of any incriminating evidence, we conclude that they are not entitled to relief on this claim of error.
Affirmed.
NOTES
[1] As noted by the Supreme Court in People v Howell, 396 Mich. 16, 20-21, n 4; 238 NW2d 148 (1976), quoting Grayned v City of Rockford, 408 U.S. 104, 108-109; 92 S. Ct. 2294; 33 L. Ed. 2d 222 (1972), the following due process rights may be offended by an unconstitutionally vague statute or ordinance:
"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute `abut[s] upon sensitive areas of basic First Amendment freedoms,' it `operates to inhibit the exercise of [those] freedoms.'"
In the present case, defendant Roger Hartsuff does not challenge the ordinance on First Amendment grounds.