Appellant, arrested for disorderly conduct when he failed,
notwithstanding several requests by an officer, to leave a
congested roadside where a friend in another car was being ticketed
for a traffic offense, was tried and convicted in an inferior court
and fined $10. Kentucky has a two-tier system for adjudicating
certain criminal cases, under which a person charged with a
misdemeanor may be tried first in an inferior court and, if
dissatisfied with the outcome, may have a trial
de novo in
a court of general criminal jurisdiction, but must risk a greater
punishment if convicted. Exercising his right to a trial
de
novo, appellant was tried for disorderly conduct in the
circuit court, convicted, and fined $50. The state appellate court
affirmed, rejecting appellant's contention that the disorderly
conduct statute is unconstitutional under the First and Fourteenth
Amendments, and that the greater punishment contravened the due
process requirements of
North Carolina v. Pearce,
395 U. S. 711, and
violated the Fifth Amendment's Double Jeopardy Clause. The
disorderly conduct statute makes it an offense for a person with
intent to cause public inconvenience, annoyance, or alarm, or
recklessly creating a risk thereof, to congregate with others in a
public place and refuse to comply with a lawful police dispersal
order. As construed by the Kentucky Court of Appeals, a violation
occurs only where there is no
bona fide intention to
exercise a constitutional right or where the interest to be
advanced by the individual's exercise of the right is insignificant
in comparison to the inconvenience, annoyance, or alarm caused by
his action.
Held:
1. The disorderly conduct statute was not unconstitutionally
applied, there having been ample evidence that the action of
appellant, who had no constitutional right to observe the ticketing
process or engage the issuing officer in conversation, was
interfering with enforcement of traffic laws. Pp.
407 U. S.
108-110.
2. The statute is not impermissibly vague or broad, as "citizens
who desire to obey [it] will have no difficulty in understanding
it," and, as construed by the Kentucky court, individuals may not
be convicted thereunder merely for expressing unpopular ideas. Pp.
407 U. S.
110-111.
Page 407 U. S. 105
3. Kentucky's two-tier system does not violate the Due Process
Clause, as it imposes no penalty on those who seek a trial
de
novo after having been convicted in the inferior court. The
Kentucky procedure involves a completely fresh determination of
guilt or innocence by the superior court which is not the court
that acted on the case before and has no motive to deal more
strictly with a
de novo defendant than it would with any
other.
North Carolina v. Pearce, supra, distinguished. Pp.
407 U. S.
112-119.
4. The Double Jeopardy Clause does not prohibit an enhanced
sentence on reconviction.
North Carolina v. Pearce, supra,
at
395 U. S.
719-720. Pp.
407 U. S.
119-120.
467
S.W.2d 374, affirmed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART BLACKMUN, POWELL and REHNQUIST, JJ.,
joined. DOUGLAS, J.,
post, p.
407 U. S. 120,
and MARSHALL, J.,
post, p.
407 U. S. 122,
filed dissenting opinions.
MR. JUSTICE WHITE delivered the opinion of the Court.
This case presents two unrelated questions. Appellant challenges
his Kentucky conviction for disorderly conduct on the ground that
the conviction and the State's statute are repugnant to the First
and Fourteenth Amendments. He also challenges the constitutionality
of the enhanced penalty he received under Kentucky's two-tier
system for adjudicating certain criminal cases, whereby a person
charged with a misdemeanor may be tried first in an inferior court
and, if dissatisfied with the outcome, may have a trial
de
novo in a court of general
Page 407 U. S. 106
criminal jurisdiction but must run the risk, if convicted, of
receiving a greater punishment.
Appellant Colten and 15 to 20 other college students gathered at
the Blue Grass Airport outside Lexington, Kentucky, to show their
support for a state gubernatorial candidate and to demonstrate
their lack of regard for Mrs. Richard Nixon, then about to leave
Lexington from the airport after a public appearance in the city.
When the demonstration had ended, the students got into their
automobiles and formed a procession of six to 10 cars along the
airport access road to the main highway. A state policeman,
observing that one of the first cars in the entourage carried an
expired Louisiana license plate, directed the driver, one Mendez,
to pull off the road. He complied. Appellant Colten, followed by
other motorists in the procession, also pulled off the highway, and
Colten approached the officer to find out what was the matter. The
policeman explained that the Mendez car bore an expired plate and
that a traffic summons would be issued. Colten made some effort to
enter into a conversation about the summons. His theory was that
Mendez may have received an extension of time in which to obtain
new plates. In order to avoid Colten and to complete the issuance
of the summons, the policeman took Mendez to the patrol car.
Meanwhile, other students had left their cars and additional
policemen, having completed their duties at the airport and having
noticed the roadside scene, stopped their cars in the traffic lane
abreast of the students' vehicles. At least one officer took
responsibility for directing traffic, although testimony differed
as to the need for doing so. Testimony also differed as to the
number of policemen and students present, how many students left
their cars, and how many were at one time or another standing in
the roadway. A state police captain asked on four or five occasions
that the group disperse. At least five times,
Page 407 U. S. 107
police asked Colten to leave. [
Footnote 1] A state trooper made two requests, remarking
at least once: "Now, this is none of your affair . . . get back in
your car and please move on and clear the road." In response to at
least one of these requests, Colten replied that he wished to make
a transportation arrangement for his friend Mendez and the
occupants of the Mendez car, which he understood was to be towed
away. Another officer asked three times that Colten depart, and
when Colten failed to move away, he was arrested for violating
Kentucky's disorderly conduct statute, Ky.Rev.Stat. § 437.016
(Supp. 1968). The arresting officer testified that Colten's
response to the order had been to say that he intended to stay and
see what might happen. Colten disputed this. He testified that he
expressed a willingness to leave, but wanted first to make a
transportation arrangement. At trial, he added that he feared
violence on the part of the police. [
Footnote 2]
The complaint and warrant charging disorderly conduct, which
carries a maximum penalty of six months in jail and a fine of $500,
were addressed to the Quarterly
Page 407 U. S. 108
Court of Fayette County, where Colten was tried, convicted, and
fined $10. Exercising his right to a trial
de novo in a
court of general jurisdiction, Colten "appealed," as the Kentucky
rules style this recourse, Ky.Rule Crim.Proc. 12.02, to the
Criminal Division of the Fayette Circuit Court. By consent, trial
was to the court, and Colten was convicted of disorderly conduct,
and this time fined $50. The Kentucky Court of Appeals affirmed.
Colten v. Commonwealth, 467
S.W.2d 374 (1971). It rejected Colten's constitutional
challenges to the statute and his claim that the punishment imposed
was impermissible, under
North Carolina v. Pearce,
395 U. S. 711
(1969). We noted probable jurisdiction. 404 U.S. 1014 (1972).
I
Colten was convicted of violating Ky.Rev.Stat. § 437.016(1)(f)
(Supp. 1968), which states:
"(1) A person is guilty of disorderly conduct if, with intent to
cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, he:"
"
* * * *"
"(f) Congregates with other persons in a public place and
refuses to comply with a lawful order of the police to disperse. .
. ."
The Kentucky Court of Appeals interpreted the statute in the
following way:
"As reasonably construed, the statute does not prohibit the
lawful exercise of any constitutional right. We think that the
plain meaning of the statute, in requiring that the proscribed
conduct be done 'with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof,' is that
the specified intent must be the predominant intent. Predominance
can be determined either (1) from the fact that no
bona
fide intent to exercise a constitutional
Page 407 U. S. 109
right appears to have existed or (2) from the fact that the
interest to be advanced by the particular exercise of a
constitutional right is insignificant in comparison with the
inconvenience, annoyance or alarm caused by the exercise."
467 S.W.2d at 377. The evidence warranted a finding, the
Kentucky court concluded, that, at the time of his arrest, "Colten
was not undertaking to exercise any constitutionally protected
freedom." Rather, he
"appears to have had no purpose other than to cause
inconvenience and annoyance. So the statute, as applied here, did
not chill or stifle the exercise of any constitutional right."
Id. at 378.
Based on our own examination of the record, we perceive no
justification for setting aside the conclusion of the state court
that, when arrested, appellant was not engaged in activity
protected by the First Amendment. Colten insists that, in seeking
to arrange transportation for Mendez and in observing the issuance
of a traffic citation, he was disseminating and receiving
information. But this is a strained, near-frivolous contention, and
we have little doubt that Colten's conduct in refusing to move on
after being directed to do so was not, without more, protected by
the First Amendment. Nor can we believe that Colten, although he
was not trespassing or disobeying any traffic regulation himself,
could not be required to move on. He had no constitutional right to
observe the issuance of a traffic ticket or to engage the issuing
officer in conversation at that time. The State has a legitimate
interest in enforcing its traffic laws, and its officers were
entitled to enforce them free from possible interference or
interruption from bystanders, even those claiming a third-party
interest in the transaction. Here, the police had cause for
apprehension that a roadside strip, crowded with persons and
automobiles, might expose the entourage, passing motorists, and
police to the risk of accident. We cannot disagree with the
finding
Page 407 U. S. 110
below that the order to disperse was suited to the occasion. We
thus see nothing unconstitutional in the manner in which the
statute was applied.
II
Neither are we convinced that the statute is either
impermissibly vague or broad. We perceive no violation of
"[t]he underlying principle . . . that no man shall be held
criminally responsible for conduct which he could not reasonably
understand to be proscribed."
United States v. Harriss, 347 U.
S. 612,
347 U. S. 617
(1954);
cf. Connally v. General Construction Co.,
269 U. S. 385,
269 U. S. 391
(1926). Here, the statute authorized conviction for refusing to
disperse with the intent of causing inconvenience, annoyance, or
alarm. Any person who stands in a group of persons along a highway
where the police are investigating a traffic violation and seeks to
engage the attention of an officer issuing a summons should
understand that he could be convicted under subdivision (f) of
Kentucky's statute if he fails to obey an order to move on. The
root of the vagueness doctrine is a rough idea of fairness. It is
not a principle designed to convert into a constitutional dilemma
the practical difficulties in drawing criminal statutes both
general enough to take into account a variety of human conduct and
sufficiently specific to provide fair warning that certain kinds of
conduct are prohibited. We agree with the Kentucky court when it
said: "We believe that citizens who desire to obey the statute will
have no difficulty in understanding it. . . ."
Colten v.
Commonwealth, 467 S.W.2d at 378.
Colten also argues that the Kentucky statute is overbroad. He
relies on
Cox v. Louisiana, 379 U.
S. 536 (1965), where the Court held unconstitutional a
breach of peace statute construed to forbid causing agitation
or
Page 407 U. S. 111
disquiet coupled with refusing to move on when ordered to do so.
The Court invalidated the statute on the ground that it permitted
conviction where the mere expression of unpopular views prompted
the order that is disobeyed. Colten argues that the Kentucky
statute must be stricken down for the same reason.
As the Kentucky statute was construed by the state court,
however, a crime is committed only where there is no
bona
fide intention to exercise a constitutional right -- in which
event, by definition, the statute infringes no protected speech or
conduct -- or where the interest so clearly outweighs the
collective interest sought to be asserted that the latter must be
deemed insubstantial. The court hypothesized, for example, that one
could be convicted for disorderly conduct if, at a symphony
concert, he arose and began lecturing to the audience on leghorn
chickens. 467 S.W.2d at 377. In so confining the reach of its
statute, the Kentucky court avoided the shortcomings of the statute
invalidated in the
Cox case. Individuals may not be
convicted under the Kentucky statute merely for expressing
unpopular or annoying ideas. The statute comes into operation only
when the individual's interest in expression, judged in the light
of all relevant factors, is "minuscule" compared to a particular
public interest in preventing that expression or conduct at that
time and place. As we understand this case, appellant's own conduct
was not immune under the First Amendment, and neither is his
conviction vulnerable on the ground that the statute threatens
constitutionally protected conduct of others. [
Footnote 3]
Page 407 U. S. 112
III
Kentucky, like many other States, [
Footnote 4] has a two-tier system for adjudicating less
serious criminal cases. In Kentucky, at the option of the arresting
officer, those crimes classified under state law as misdemeanors
[
Footnote 5] may be charged and
tried in a so-called inferior court, [
Footnote 6] where, as in the normal trial setting, a
defendant may choose to have a trial or to plead guilty. If
convicted after trial or on a guilty plea, however, he has a right
to a trial
de novo in a court of general criminal
jurisdiction,
Brown v. Hoblitzell, 307
S.W.2d 739 (Ky.1957), so
Page 407 U. S. 113
long as he applies within the statutory time. [
Footnote 7] The right to a new trial is
absolute. A defendant need not allege error in the inferior court
proceeding. If he seeks a new trial, the Kentucky statutory scheme
contemplates that the slate be wiped clean. Ky.Rule Crim.Proc.
12.06. Prosecution and defense begin anew. By the same token,
neither the judge nor jury that determines guilt or fixes a penalty
in the trial
de novo is in any way bound by the inferior
court's findings or judgment. The case is to be regarded exactly as
if it had been brought there in the first instance. A convicted
defendant may seek review in the state appellate courts in the same
manner as a person tried initially in the general criminal court.
Ky.Rev.Stat. § 23.032 (Supp. 1968). However, a defendant convicted
after a trial or plea in an inferior court may not seek ordinary
appellate review of the inferior court's ruling. His recourse is
the trial
de novo.
While, by definition, two-tier systems throughout the States
have in common the trial
de novo feature, [
Footnote 8] there are differences in the kind
of trial available in the inferior courts of first instance,
whether known as county, municipal, police, or justice of the peace
courts, or are otherwise referred to. Depending upon the
jurisdiction and offense charged, many such systems provide as
complete protection for a criminal defendant's constitutional
rights as do courts empowered to try more serious crimes. Others,
however, lack some of the safeguards provided in more serious
criminal cases. Although appellant here was entitled to a six-man
jury,
cf. Williams v. Florida, 399 U. S.
78 (1970), which he waived, some
Page 407 U. S. 114
States do not provide for trial by jury, [
Footnote 9] even in instances where the authorized
punishment would entitle the accused to such tribunal.
Cf.
Duncan v. Louisiana, 391 U. S. 145
(1968). Some, including Kentucky, do not record proceedings,
[
Footnote 10] and the judges
may not be trained for their positions either by experience or
schooling. [
Footnote 11] Two
justifications are asserted for such tribunals: first, in this day
of increasing burdens on state judiciaries, these courts are
designed, in the interest of both the defendant and the State, to
provide speedier and less costly adjudications than may be possible
in the criminal courts of general jurisdiction where the full range
of constitutional guarantees is available; second, if the defendant
is not satisfied with the results of his first trial, he has the
unconditional right to a new trial in a superior court,
unprejudiced by the proceedings or the outcome in the inferior
courts. Colten, however, considers the Kentucky system to be infirm
because the judge in a trial
de novo is empowered to
sentence anew, and is not bound to stay within the limits of the
sentence imposed by the inferior court. He bases his attack both on
the Due Process Clause, as interpreted in
North Carolina v.
Pearce, 395 U. S. 711
(1969), and on the Fifth Amendment's Double Jeopardy Clause.
The
Page 407 U. S. 115
issues appellant raises have produced a division among the state
courts that have considered them, [
Footnote 12] as well as a conflict among the federal
circuits. [
Footnote 13]
Colten rightly reads
Pearce to forbid, following a
successful appeal and reconviction, the imposition of a greater
punishment than was imposed after the first trial, absent specified
findings that have not been made here. He insists that the
Pearce rule is applicable here, and that there is no
relevant difference between the
Pearce model and the
Kentucky two-tier trial
de novo system. Both, he asserts,
involve reconviction and resentencing, both provide the convicted
defendant with the right to "appeal," and in both -- even though.
under the Kentucky scheme. the "appeal" is in reality a trial
de novo -- a penalty for the same crime is fixed twice,
with the same potential for an increased penalty upon a successful
"appeal."
Page 407 U. S. 116
But
Pearce did not turn simply on the fact of
conviction, appeal, reversal, reconviction, and a greater sentence.
The court was there concerned with two defendants who, after their
convictions had been set aside on appeal, were reconvicted for the
same offenses and sentenced to longer prison terms. In one case,
the term was increased from 10 to 25 years. Positing that a more
severe penalty after reconviction would violate due process of law
if imposed as purposeful punishment for having successfully
appealed, the court concluded that such untoward sentences occurred
with sufficient frequency to warrant the imposition of a
prophylactic rule to ensure
"that vindictiveness against a defendant for having successfully
attacked his first conviction. . . [would] play no part in the
sentence he receives after a new trial . . ."
and to ensure that the apprehension of such vindictiveness does
not "deter a defendant's exercise of the right to appeal or
collaterally attack his first conviction. . . ." 395 U.S. at
395 U. S.
725.
Our view of the Kentucky two-tier system of administering
criminal justice, however, does not lead us to believe, and there
is nothing in the record or presented in the briefs to show, that
the hazard of being penalized for seeking a new trial, which
underlay the holding of
Pearce, also inheres in the
de
novo trial arrangement. Nor are we convinced that defendants
convicted in Kentucky's inferior courts would be deterred from
seeking a second trial out of fear of judicial vindictiveness. The
possibility of vindictiveness, found to exist in
Pearce,
is not inherent in the Kentucky two-tier system.
We note first the obvious: that the court which conducted
Colten's trial and imposed the final sentence was not the court
with whose work Colten was sufficiently dissatisfied to seek a
different result on appeal; and it
Page 407 U. S. 117
is not the court that is asked to do over what it thought it had
already done correctly. Nor is the
de novo court even
asked to find error in another court's work. Rather, the Kentucky
court in which Colten had the unrestricted right to have a new
trial was merely asked to accord the same trial, under the same
rules and procedures, available to defendants whose cases are begun
in that court in the first instance. It would also appear that,
however understandably a court of general jurisdiction might feel
that the defendant who has had a due process trial ought to be
satisfied with it, the
de novo court in the two-tier
system is much more likely to reflect the attitude of the Kentucky
Court of Appeals in this case when it stated that
"the inferior courts are not designed or equipped to conduct
error-free trials, or to insure full recognition of constitutional
freedoms. They are courts of convenience, to provide speedy and
inexpensive means of disposition of charges of minor offenses."
Colten v. Commonwealth, 467 S.W.2d at 37. We see no
reason, and none is offered, to assume that the
de novo
court will deal any more strictly with those who insist on a trial
in the superior court after conviction in the Quarterly Court than
it would with those defendants whose cases are filed originally in
the superior court and who choose to put the State to its proof in
a trial subject to constitutional guarantees.
It may often be that the superior court will impose a punishment
more severe than that received from the inferior court. But it no
more follows that such a sentence is a vindictive penalty for
seeking a superior court trial than that the inferior court imposed
a lenient penalty. The trial
de novo represents a
completely fresh determination of guilt or innocence. It is not an
appeal on the record. As far as we know, the record from the lower
court is not before the superior court, and is irrelevant
Page 407 U. S. 118
to its proceedings. In all likelihood, the trial
de
novo court is not even informed of the sentence imposed in the
inferior court, and can hardly be said to have "enhanced" the
sentence. [
Footnote 14] In
Kentucky, disorderly conduct is punishable by six months in jail
and a fine of $500. The inferior court fined Colten $10, the trial
de novo court $50. We have no basis for concluding that
the latter court did anything other than invoke the normal
processes of a criminal trial and then sentence in accordance with
the normal standards applied in that court to cases tried there in
the first instance. We cannot conclude, on the basis of the present
record or our understanding, that the prophylactic rule announced
in
Pearce is appropriate in the context of the system by
which Kentucky administers criminal justice in the less serious
criminal cases.
It is suggested, however, that the sentencing strictures imposed
by
Pearce are essential in order to minimize an asserted
unfairness to criminal defendants who must endure a trial in an
inferior court with less than adequate protections in order to
secure a trial comporting completely with constitutional
guarantees. We are not persuaded, however, that the Kentucky
arrangement for dealing with the less serious offenses
disadvantages defendants any more or any less than trials conducted
in a court of general jurisdiction in the first instance, as long
as the latter are always available. Proceedings in the inferior
courts are simple and speedy, and, if the results in Colten's case
are any evidence, the penalty is not characteristically severe.
Such proceedings offer a defendant the opportunity to learn about
the prosecution's case and, if he chooses, he need not reveal his
own. He may
Page 407 U. S. 119
also plead guilty without a trial and promptly secure a
de
novo trial in a court of general criminal jurisdiction. He
cannot, and will not, face the realistic threat of a prison
sentence in the inferior court without having the help of counsel,
whose advice will also be available in determining whether to seek
a new trial, with the slate wiped clean, or to accept the penalty
imposed by the inferior court. The State has no such options.
Should it not prevail in the lower court, the case is terminated,
whereas the defendant has the choice of beginning anew. In reality,
his choices are to accept the decision of the judge and the
sentence imposed in the inferior court or to reject what, in
effect, is no more than an offer in settlement of his case and seek
the judgment of judge or jury in the superior court, with sentence
to be determined by the full record made in that court. We cannot
say that the Kentucky trial
de novo system, as such, is
unconstitutional, or that it presents hazards warranting the
restraints called for in
North Carolina v. Pearce,
particularly since such restraints might, to the detriment of both
defendant and State, diminish the likelihood that inferior courts
would impose lenient sentences whose effect would be to limit the
discretion of a superior court judge or jury if the defendant is
retried and found guilty.
Colten's alternative contention is that the Double Jeopardy
Clause prohibits the imposition of an enhanced penalty upon
reconviction. The
Pearce Court rejected the same
contention in the context of that case, 395 U.S. at
395 U. S.
719-720. Colten urges that his claim is stronger because
the Kentucky system forces a defendant to expose himself to
jeopardy as a price for securing a trial that comports with the
Constitution. That was, of course, the situation in
Pearce, where reversal of the first conviction was for
constitutional error. The contention also ignores that a defendant
can bypass the inferior court simply by pleading guilty and erasing
immediately
Page 407 U. S. 120
thereafter any consequence that would otherwise follow from
tendering the plea.
The judgment of the Kentucky Court of Appeals is
Affirmed.
[
Footnote 1]
This version of the facts is taken largely from the opinion of
the Kentucky Court of Appeals,
Colten v.
Commonwealth, 467
S.W.2d 374, 375-376 (Ky.1971). Colten testified that only the
arresting officer ordered him to leave, and that the three orders
were uttered in such rapid succession that he had little
opportunity to comply. App. 49-51. This was disputed by a policeman
who testified that, earlier, he twice asked appellant to leave and
gave the admonition quoted in the text.
Id. &t 23-24.
Our own examination of the record indicates that the Kentucky
courts' resolution of this factual dispute was a fair one.
Cf.
Cox v. Louisiana, 379 U. S. 536,
379 U. S. 545
n. 8 (1965).
[
Footnote 2]
In his brief, appellant makes a passing reference to the
possibility of violence on the part of police, and suggests that he
remained on the scene to avert misdeeds or to be a potential
witness to them. Yet he builds no factual basis for a reasonable
apprehension of violence, and seemingly dispels whatever force such
a contention might have when he states in his brief: "In the
overwhelming majority of cases, that suspicion [of police
brutality] is undoubtedly wrong, but it is there." Brief for
Appellant 36.
[
Footnote 3]
Appellant attacks on overbreadth grounds other subsections of
the disorderly conduct statute, such as those that prohibit the
making of an "unreasonable noise" and the use of "abusive or
obscene language." Ky.Rev.Stat. §§ 437.016(b), (c) (Supp. 1968).
But Colten was not convicted of violating these subsections, and
they are not properly before us in this case.
[
Footnote 4]
E.g., Ariz.Rev.Stat.Ann. § 22-371
et seq.
(1956 and Supp. 1971-1972); Ark.Stat.Ann. § 44-501
et seq.
(1964); Colo.Rule Crim.Proc. 37(f); Fla.Stat.Ann. § 924.41
et
seq. (Supp. 1972-1973); Ind.Ann.Stat. § 9-713
et seq.
(1956 and Supp. 1971); Kan.Stat.Ann. § 22-3610
et seq.
(Supp. 1971); Me.Dist.Ct.Crim.Rule 37
et seq.;
Md.Ann.Code, Art. 5, § 43 (1968); Mich.Stat.Ann. § 28.1226
(Supp.1972); Minn.Stat. §§ 488.0, 633.20
et seq. (1969);
Miss.Code Ann. §§ 1201, 1202 (Supp. 1971); Mo.Sup.Ct.Rule 22;
Mont.Rev.Codes Ann. § 95-2001
et seq. (1947);
Neb.Rev.Stat. § 29-601
et seq. (1964); Nev.Rev.Stat. §
189.010
et seq. (1969); N.H.Rev.Stat.Ann. §§ 502:18,
502-A:11-12 (1968); N.M.Stat.Ann. § 36-15-1
et seq. (Supp.
1971); N.C.Gen.Stat. §§ 15-177
et seq., 20-138 (1965 and
Supp. 1971); N.D.Cent.Code § 33-12-40
et seq. (1960);
Pa.Stat.Ann., Tit. 42, § 3001
et seq. (Supp. 1972-1973);
Pa.Const., Sched. Art. 5, § 16(r)(iii) (Philadelphia); Tex.Code
Crim.Proc., Arts. 44.17, 45.10 (1966); Va.Code Ann. § 16.1-129
et seq. (1950); Wash.Rev.Code § 3.50.380
et seq.
(Supp. 1971); W.Va.Code Ann. § 50-18-1
et seq. (1966 and
Supp. 1971).
[
Footnote 5]
Misdemeanors are defined as those crimes punishable by a maximum
of one year in jail and a $500 fine. Ky.Rev.Stat. §§ 25.010, 26.010
(1962 and Supp. 1968).
[
Footnote 6]
What the Kentucky Court of Appeals calls inferior courts include
county, quarterly, justice's and police courts. In all cases in
which the punishment is limited to a fine of $20, the inferior
courts have original jurisdiction. Ky.Rev.Stat. § 25.010 (1962). In
all other misdemeanor cases, their jurisdiction is concurrent with
that of the circuit court.
[
Footnote 7]
Ky.Rev.Stat. § 23.032 (Supp. 1968). Kentucky denominates an
application for a trial
de novo an "appeal." However, the
right to a new trial is unconditional, and exists even when a
defendant seeks redetermination of questions of law. Ky.Rules
Crim.Proc. 12.02, 12.06.
[
Footnote 8]
A general discussion of how these courts operate may he found in
47 Am.Jur.2d Justices of the Peace §§ 49-120.
[
Footnote 9]
E.g., Massachusetts, North Carolina, Pennsylvania.
Mann v. Commonwealth, ___ Mass. ___,
271
N.E.2d 331 (1971);
State v. Spencer, 276 N.C. 535,
173 S.E.2d
765 (1970); Pa.Stat.Ann. Tit. 42, § 3001
et seq.
(Supp. 1972-1973); Pa.Const., Sched. Art. 5, § 16(r)(iii)
(Philadelphia).
[
Footnote 10]
E.g., North Carolina,
Virginia. State v.
Sparrow, 276 N.C. 499,
173 S.E.2d
897 (1970);
Evans v. City of Richmond, 210 Va. 403;
171 S.E.2d 247 (1969).
[
Footnote 11]
See, e.g., People v. Olary, 382 Mich. 559,
170 N.W.2d
842 (1969);
State v. DeBonis, 58 N.J. 182,
276 A.2d
137 (1971). However, the trial judge in the Fayette Quarterly
Court, where Colten was tried, is a professional.
[
Footnote 12]
North Carolina v. Pearce, 395 U.
S. 711 (1969), applies:
Bronstein v. Superior
Court, 106 Ariz. 251,
475 P.2d 235
(1970);
State v. Shak, 51 Haw. 626,
466 P.2d 420
(1970);
Eldridge v. State, 256 Ind. 113,
267 N.E.2d 48
(1971);
Cherry v. State, 9 Md.App. 416,
264 A.2d 887 (1970);
Commonwealth v. Harper, 219 Pa.
Super 100, 280 A.2d 637 (1971).
Contra: Mann v. Commonwealth, ___ Mass. ___,
271
N.E.2d 331 (1971);
People v. Olary, 382 Mich. 559,
170 N.W.2d
842 (1969);
State v. Stanosheck, 186 Neb. 17,
180 N.W.2d
226 (1970);
State v. Sparrow, 276 N.C. 499,
173 S.E.2d
897 (1970);
Evans v. City of Richmond, 210 Va. 403,
171 S.E.2d 247 (1969).
New Mexico prohibits enhanced sentencing altogether.
N.M.Stat.Ann. § 36-15-3 (Supp. 1971).
[
Footnote 13]
Pearce applies:
Rice v. North Carolina, 434
F.2d 297 (CA4 1970),
vacated and remanded on ground of possible
mootness, 404 U. S. 244
(1971);
contra: Lemieux v.Robbins, 414 F.2d 353 (CA1
1969),
cert. denied, 397 U.S. 1017 (1970).
See also
Manns v. Allman, 324 F. Supp. 1149 (WD Va.1971), holding that
Pearce does not apply where an enhanced penalty is imposed
by a jury, rather than a judge.
[
Footnote 14]
In Colten's case the superior court judge did know about the $10
fine. Colten's counsel in closing argument stated what the penalty
had been, App. 93, although clearly he need not have done so.
MR. JUSTICE DOUGLAS, dissenting.
This case arose in the aftermath of a visit of the President's
wife to Lexington, Kentucky, where nothing untoward happened. After
her plane had left, appellant and a group of his friends got into
"some six to ten cars" and started down the access road leading
from the airport to the main highway. The lead car was stopped by
the police because of an expired license plate, and, at the
officer's request, pulled onto the shoulder of the access road.
Appellant, who followed, also pulled onto the shoulder as did the
other cars in the group. So there were no cars belonging to
appellant's group blocking traffic.
The people in the cars, however, walked around, some talking
with the police, and appellant talking mostly with the driver of
the lead car. Appellant claimed that he only wanted to advise the
man who was getting the citation of his rights, and to help arrange
for the driver and passengers in the lead car to get to Lexington.
The Court of Appeals of Kentucky, however, said that
"Colten's real intent was simply to aggravate, harass, annoy and
inconvenience the police, for no purpose other than the pleasure of
aggravation, harassment, annoyance and inconvenience."
467
S.W.2d 374, 376.
The statute under which petitioner was convicted read in
relevant part as follows: [
Footnote
2/1]
"(1) A person is guilty of disorderly conduct if, with intent to
cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, he:"
"
* * * *"
"(f) Congregates with other persons in a public
Page 407 U. S. 121
place and refuses to comply with a lawful order of the police to
disperse. . . ."
The Court of Appeals sustained the statute as applied because
the inconvenience [
Footnote 2/2]
and annoyance to the police far outweighed appellant's speech,
which fell "far below the level of minimum social value." 467
S.W.2d at 377. That court, citing our obscenity cases, said if
"the lack of redeeming social value is a basis upon which the
right of freedom of speech may be required to yield to the
protection of contemporary standards of morality . . . , it would
seem that the public's interest in being protected from
inconvenience, annoyance or alarm should prevail over any claimed
right to utter speech that has no social value."
Ibid.
But the speech involved here was nonerotic, having no suggestion
or flavor of the pornographic.
The speech here was quiet, not boisterous, and it was devoid of
"fighting words."
Moreover, this was not a case where speech had moved into
action, involving overt acts. There were no fisticuffs, no
disorderly conduct in the normal meaning of the words.
The Court of Appeals said "Colten was not seeking to express a
thought to any listener, or to disseminate any idea." 467 S.W.2d at
378. Nor was he, it said, "exercising the right of peaceable
assembly."
Ibid.
He was, however, speaking to a representative of government, the
police. And it is to government that one goes "for a redress of
grievances," to use an almost forgotten phrase of the First
Amendment. But it is said that the purpose was "to cause
inconvenience and annoyance."
Page 407 U. S. 122
Since when have we Americans been expected to bow submissively
to authority and speak with awe and reverence to those who
represent us? The constitutional theory is that we the people are
the sovereigns, the state and federal officials only our agents. We
who have the final word can speak softly or angrily. We can seek to
challenge and annoy, as we need not stay docile and quiet. The
situation might have indicated that Colten's techniques were
ill-suited to the mission he was on, that diplomacy would have been
more effective. But, at the constitutional level, speech need not
be a sedative; it can be disruptive. As we said in
Terminiello
v. Chicago, 337 U. S. 1,
337 U. S. 4:
"[A] function of free speech under our system of government is
to invite dispute. It may indeed best serve its high purpose when
it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger. Speech is
often provocative and challenging. It may strike at prejudices and
preconceptions, and have profound unsettling effects as it presses
for acceptance of an idea."
Under that test, this conviction should be set aside.
[
Footnote 2/1]
Ky.Rev..Stat. § 437.016 (Supp. 1968)
[
Footnote 2/2]
Neither appellant nor any in his group blocked traffic, their
cars being parked on the shoulder of the road. Any blocking of
traffic was caused by police who pulled up to see what was going
on, leaving their patrol cars in the access road.
See 467
S.W.2d 374, 376.
MR. JUSTICE MARSHALL, dissenting.
In my view,
North Carolina v. Pearce, 395 U.
S. 711 (1969), requires a reversal of this case.
In this case, the Court correctly evaluates Kentucky's
procedure:
"[A] defendant convicted after a trial or plea in an inferior
court may not seek ordinary appellate review of the inferior
court's ruling. His recourse is the trial ,
de novo."
From this, the conclusion is reached that the "trial
de
novo" is not an appeal. What, then, is it?
Page 407 U. S. 123
The pertinent Kentucky Rules provide:
"12.02
Manner of Taking"
"(1) An appeal to the circuit court is taken by filing with the
clerk thereof a certified copy of the judgment and the amount of
costs, and causing to be executed before the clerk a bond to the
effect that the defendant will pay the costs of the appeal and
perform the judgment which may be rendered against him on the
appeal; whereupon, the clerk shall issue an order to the judge or
the justice rendering the judgment, to stay proceedings thereon,
and to transmit to the office of said clerk all the original papers
in the prosecution."
"(2) The applicable provisions governing bail shall apply to the
bond provided for in subsection (1)."
"(3) After the service of the order to stay proceedings, no
execution shall be issued from the inferior court, and any officer
on whom the order is served shall return the execution in his hands
as suspended by appeal."
"12.06
Schedule and Manner of Trial; Judgment"
"Appeals taken to the circuit court shall be docketed by the
clerk thereof as a regular criminal prosecution, and shall be tried
anew, as if no judgment had been rendered, and the judgment shall
be considered as affirmed to the extent of the punishment, if any,
adjudged against the defendant in the circuit court, and thereupon
he shall be adjudged to pay the costs of the appeal. If an appeal
taken to the circuit court be dismissed, the judgment of the court
from which it was taken shall stand affirmed, and the costs of the
appeal shall be paid by the party whose appeal is dismissed. "
Page 407 U. S. 124
In
Pearce, this Court reaffirmed the restrictions upon
heavier sentences after appeal:
"It can hardly be doubted that it would be a flagrant violation
of the Fourteenth Amendment for a state trial court to follow an
announced practice of imposing a heavier sentence upon every
reconvicted defendant for the explicit purpose of punishing the
defendant for his having succeeded in getting his original
conviction set aside. Where, as in each of the cases before us, the
original conviction has been set aside because of a constitutional
error, the imposition of such a punishment, 'penalizing those who
choose to exercise' constitutional rights, 'would be patently
unconstitutional.'
United States v. Jackson, 390 U. S.
570,
390 U. S. 581. And the very
threat inherent in the existence of such a punitive policy would,
with respect to those still in prison, serve to 'chill the exercise
of basic constitutional rights.'
Id. at
390 U. S.
582.
See also Griffin v. California,
380 U. S.
609;
cf. Johnson v. Avery, 393 U. S.
483. But even if the first conviction has been set aside
for nonconstitutional error, the imposition of a penalty upon the
defendant for having successfully pursued a statutory right of
appeal or collateral remedy would be no less a violation of due
process of law. 'A new sentence, with enhanced punishment, based
upon such a reason, would be a flagrant violation of the rights of
the defendant.'
Nichols v. United States, 106 F. 672, 679.
A court is"
"without right to . . . put a price on an appeal. A defendant's
exercise of a right of appeal must be free and unfettered. . . .
[I]t is unfair to use the great power given to the court to
determine sentence to place a defendant in the dilemma of making an
unfree choice."
"
Worcester v. Commissioner, 370 F.2d 713, 718.
See
Short v. United States, 120 U.S.App.D.C.
Page 407 U. S. 125
165, 167, 344 F.2d 550, 552."
"This Court has never held that the States are required to
establish avenues of appellate review, but it is now fundamental
that, once established, these avenues must be kept free of
unreasoned distinctions that can only impede open and equal access
to the courts.
Griffin v. Illinois, 351 U. S.
12;
Douglas v. California, 372 U. S.
353;
Lane v. Brown, 372 U. S.
477;
Draper v. Washington, 372 U. S.
487."
"
Rinaldi v. Yeager, 384 U. S. 305,
384 U. S.
310-311."
395 U.S. at
395 U. S.
723-725.
This Court today seeks to escape this determination by such
conclusions as:
"Our view of the Kentucky two-tier system of administering
criminal justice, however, does not lead us to believe, and there
is nothing in the record or presented in the briefs to show, that
the hazard of being penalized for seeking a new trial, which
underlay the holding of
Pearce, also inheres in the
de
novo trial arrangement. Nor are we convinced that defendants
convicted in Kentucky's inferior courts would be deterred from
seeking a second trial out of fear of judicial vindictiveness. The
possibility of vindictiveness, found to exist in
Pearce,
is not inherent in the Kentucky two-tier system."
To the contrary, appellant's Jurisdictional Statement cites us
to an order of the same judge who tried this case "
de
novo" in which he accepted a motion to dismiss an appeal in a
similar case with the following statement:
"The Commonwealth Attorney has advised the Court that he does
not wish to oppose the defendant's motion to dismiss."
"While the defendant may be correct in his assumption that the
citizens of this community have a hostile attitude toward students
who would attempt
Page 407 U. S. 126
to disrupt the university, it may be that this hostility has
been earned, and it is conceivable that a jury composed of citizens
of this community might impose a more severe sentence than that
imposed in the court below. Nonetheless, the Court after having
reviewed the law submitted by the defendant and having conducted
its own research of the law, is of the opinion that the defendant
has a right to dismiss his appeal, and that he cannot be forced
into a new trial if he does not desire to continue his appeal. For
that reason, the defendant's motion to have his appeal dismissed
be, and the same is hereby, granted."
The record in this case also shows that the trial judge was
informed of the lower $10 fine in the original trial, and
consequently knowingly increased it to $50. Finally, it should not
be forgotten that, under this Court's ruling today, he could have
increased it to $500 plus six months in jail.
The Court suggests that, for some reason, there is less danger
of vindictive sentencing on the second trial in this context than
after an ordinary appeal. Specifically, the Court faults the
appellant for failing to present evidence that the danger of
vindictiveness is as great here as in the precise context presented
in
Pearce. But
Pearce did not rest on evidence
that most trial judges are hostile to defendants who obtain a new
trial after appeal.
Pearce was based, rather, on the
recognition that, whenever a defendant is tried twice for the same
offense, there is inherent in the situation the danger of
vindictive sentencing the second time around, and that this danger
will deter some defendants from seeking a second trial. This
danger, with its deterrent effect, is exactly the same even though
the second trial takes place in a different court from the first.
Certainly a defendant has good reason to fear that his case
will
Page 407 U. S. 127
not be well received by a second court after he rejects a
disposition as favorable as the sentence originally imposed in this
case.
Pearce was directed toward a new trial after an
appellate reversal. This case involves a new trial without an
appellate reversal. The core problem is the second trial. In both
cases, we have a second full and complete trial.
Pearce
should control.