Opinion
No. 54318-1-I
Filed: April 25, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-09466-4. Judgment or order under review. Date filed: 05/03/2004. Judge signing: Hon. Carol A. Schapira.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Richard Roy Earl — Info Only (Appearing Pro Se).
Sarah Mcneel Hrobsky, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
One night while drinking in a North Seattle tavern, Richard Earl approached a woman and engaged her in conversation. During the course of this conversation, Earl expressed his hatred for police officers, from the North Precinct in particular, and Officer Justin Williams specifically. Earl told the woman that he was going to kill Officer Williams, his wife, and his children. The next day the woman reported the threat and identified Earl from a photo montage. A jury convicted Earl of felony harassment. He appeals. We affirm.
FACTS
Tami testified at Richard Earl's trial that Earl sat down on a barstool next to her at a tavern in North Seattle one night. According to Tami, Earl started a conversation with her and asked what she did for a living. Tami told Earl she was a paralegal. Earl told Tami he hated lawyers but that he needed one because he'd just gotten out of jail. Tami testified that Earl then stated he hated police officers and "especially he hated one particular officer at North Precinct," an Officer Williams.
Report of Proceedings (April 1, 2004) at 258.
By coincidence, Tami's brother-in-law is Officer Alan Williams, who worked at the North Precinct at the time. Tami fished for more information because she was afraid Earl was talking about her sister's husband. Earl told her he was "going to get" Officer Williams, his wife, and his children. "He said he was going to get them. And as he kept going on, he was going to kill them." Tami testified that Earl told her he hated Officer Williams because "he had either been beaten while he was handcuffed or beaten with handcuffs." It eventually became clear to Tami that Earl was talking not about her brother-in-law, but about Officer Justin Williams, also of Seattle's North Precinct.
Report of Proceedings (April 1, 2004) at 260.
Report of Proceedings (April 1, 2004) at 261.
Tami asked the bartender if she knew who Earl was, and told him about Earl's threats. The bartender did not take the threats seriously. That night, Tami told her boyfriend, the owner of the tavern, about the conversation. He thought Tami was making a "mountain out of a molehill" and dismissed Earl's statements as "just bar talk."
Report of Proceedings (April 1, 2004) at 265.
The next morning, Tami asked an attorney at work for advice on what she should do. The attorney told her that she should call her sister. Her sister in turn called her husband, Officer Alan Williams, who responded that Tami should take the threat seriously and report it. Tami called the police and reported the incident late that afternoon. She gave a description of Earl to the police, but at the time, Tami did not know his name. She identified him later by picking him out of a photomontage. Officer Justin Williams was not on duty when Tami made her report. Another officer called Officer Williams on his cell phone to tell him of the threat. Officer Williams testified that upon learning of the threat, he became worried and scared. He took the threats seriously and called his family to warn them. He suspected it was Earl. Officer Williams testified that he first encountered Earl a few years before when he arrested Earl for voyeurism. (The jury heard only that it was a felony arrest.) Earl was uncooperative. Officer Williams had to push him to the ground in order to handcuff him. Officer Williams later testified at Earl's voyeurism trial, which resulted in a felony conviction. Some time later, Officer Williams arrested Earl for driving with a suspended license. Earl recognized Officer Williams from their previous interactions and was angry. Earl brought up the voyeurism arrest and accused Officer Williams of having previously failed to advise Earl of his rights.
A jury found Earl guilty of felony harassment. This appeal followed.
"TRUE THREAT" INSTRUCTION
The instructions given to the jury defined "threat" as follows:
Threat means to communicate directly or indirectly the intent to cause bodily injury in the future to the person threatened or to any other person.
A true threat is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life of another individual.
Jury Instruction 9, Clerk's Papers at 29.
Earl asked the court to include the following additional sentence: "Idle talk, joking, or puffery does not constitute a knowing communication of an actual intent to cause bodily injury, and, therefore, does not constitute a true threat." The trial court denied Earl's proposed instruction that included this language. Earl assigns error to the court's refusal to use his proposed instruction.
Proposed jury instruction, Clerk's Papers at 45.
A person commits felony harassment if he or she threatens to kill the person threatened or any other person and that person is placed in reasonable fear that the threat will be carried out. RCW 9A.46.020(2)(b), (ii). To avoid unconstitutional infringement of protected speech, the harassment statute must be read as clearly prohibiting only "true threats." State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004); State v. Williams, 144 Wn.2d 197, 208-09, 26 P.3d 890 (2001).
In Kilburn, a student made a comment to a classmate that he was going to bring a gun to school and shoot her. He claimed that he did not intend his statement to be a threat and he meant it as "only a joke." Kilburn, 151 Wn.2d at 40. The court reversed the defendant's felony harassment conviction for insufficient evidence, concluding that a reasonable person under the circumstances would not foresee that his listener would take the threat seriously. Thus, the State failed to establish Kilburn's statement was a true threat. Kilburn, 151 Wn.2d at 48.
Citing Kilburn, Earl argues that the jury, in order to find that a statement constitutes a "true threat," must be instructed to rule out the possibility that the statement is idle talk, joking, or puffery protected by the First Amendment. Kilburn does not support this argument. Indeed, the Court noted, "if the State establishes that a true threat was made, it has necessarily established the speech is unprotected". State v. Kilburn, 151 Wn.2d at 47.
The trial court's instruction defining a "true threat" tracks a definition approved by our Supreme Court in State v. Williams, 144 Wn.2d 197, 208-09, 26 P.3d 890 (2001). It properly informed the jury of the applicable law, was not misleading, and permitted Earl to argue his theory of the case. There was no error.
DETECTIVE FIELDS' TESTIMONY
Detective Timothy Fields interviewed Earl after he was arrested by Officer Williams in the voyeurism incident. Over Earl's relevance objection, the trial court allowed Detective Fields to testify about that interview. Detective Fields said Earl was upset with Officer Williams for using what Earl felt was unnecessary force to arrest him and expressed frustration with Seattle police officers, who he felt were "harassing him and arresting him for nothing." The trial court commented that evidence that the defendant was mad at the victim was "always probative if it isn't unduly prejudicial."
Report of Proceedings (March 31, 2004) at 295.
Report of Proceedings (March 29, 2004) at 104.
The trial court was correct. Evidence of previous disputes between the accused and victim, and the accused's ill-feelings toward the victim, is admissible to show motive or malice. State v. Powell, 126 Wn.2d 244, 260, 893 P.2d 615 (1995). Evidence that Earl was angry about Officer Williams' treatment of him during the voyeurism arrest shows Earl's motive for making the threat in the bar. And it corroborates Tami's testimony that Earl was upset about the degree of force used to handcuff him.
Because the court admitted the evidence to show animus, it was not necessary for Officer Williams to have been aware of Earl's statements to Detective Fields. The fact that Earl harbored anger toward Officer Williams over the arrest is relevant because it made the existence of a material fact, whether he actually made the threat, more likely. We find no abuse of discretion.
OFFICER WILLIAMS' TESTIMONY
The State sought to introduce all of Earl's prior criminal history, including uncharged offenses. After hearing extensive argument on the issue, the trial court decided to exclude all evidence of other crimes or bad acts of which Officer Williams was unaware. But the trial court also ruled it would allow Officer Williams to testify about things he learned about Earl within a day of perceiving the threat, if the information contributed to his fear.
Report of Proceedings (March 29, 2004) at 90-91.
In order to prevent the jury from hearing such information, Earl agreed to stipulate to the element of reasonable fear. The stipulation entered into by the parties provides:
If the State proves beyond a reasonable doubt that the defendant knowingly threatened to kill Justin Williams or any other person on or about October 28, 2003, the parties agree that the defendant's words or conduct placed Justin Williams in reasonable and actual fear that the threat to kill would be carried out.
Exhibit 3.
Because of the stipulation, the jury did not hear any evidence of Earl's criminal history or uncharged offenses.
Earl now contends the court erred by ruling that any of his prior bad acts could come in, even on the limited basis identified by the court. The State contends that Earl cannot claim the ruling prejudiced him, because he did not make a record showing what evidence would have come in if he had not stipulated. The State has a point. But in any event, assuming the evidence the trial court agreed to admit was prejudicial to Earl, we find no abuse of discretion.
One of the elements of felony harassment the State must prove beyond a reasonable doubt is that the defendant's words or actions place the person threatened in reasonable fear that the threat will be carried out. RCW 9A.46.020(1)(b). Earl claims information learned after Officer Williams perceived the threat cannot have contributed to the reasonableness of Officer Williams' fear. He relies on language in another felony harassment case, State v. Ragin, 94 Wn. App. 407, 412, 972 P.2d 519 (1999): "The jury was entitled to know what Dahl knew at the time Ragin threatened him to decide whether a reasonable person knowing what Dahl knew would believe Ragin could carry out the threats." (Emphasis added.)
The appellant did not raise, and thus the reviewing court in Ragin did not address, an argument that the victim must have become aware of the negative information before rather than after learning of the threat. In context, the language Earl relies on merely reflects the facts of that particular case. Sometimes, a person threatened must make inquiries or recall past encounters in order to decide how seriously to regard the threat. The statute does not contain a temporal element as to after-acquired information. We see no reason to limit the operation of the statute to preclude imposing criminal liability in such circumstances. The trial court's ruling was not an abuse of discretion.
SUFFICIENCY
Earl challenges the sufficiency of the evidence to prove that his statements objectively constituted a "true threat," i.e., a statement that a reasonable person would foresee as being understood as "a serious expression of intention to inflict bodily harm upon or to take the life of another person." State v. Kilburn, 151 Wn.2d at 43, citing State v. Williams, 144 Wn.2d 197, 208-09, 26 P.3d 890 (2001).
Earl emphasizes that Tami asked several people whether she should take the threats seriously before finally reporting Earl's threats to the police. Whether the listener actually took the threats seriously, however, is not what determines whether a speaker has uttered a true threat. Instead, the focus is on what the speaker would have reasonably foreseen as the effect of his comments, and the question is whether it was reasonably foreseeable by the speaker that listeners would take the threat seriously. Kilburn, 151 Wn.2d at 44.
There are a number of facts that would lead a speaker in Earl's circumstances to reasonably foresee that a listener would understand his statements as expressing a serious intent to harm Officer Williams and his family. Earl made his statements to a complete stranger in a bar after telling her he had just been released from jail. Tami testified that Earl told her he had reasons to hate Officer Williams. When Earl was going on about how he hated Officer Williams and was going to kill him, he became "increasingly more intense". We conclude the evidence was sufficient.
Report of Proceedings (March 31, 2004) at 262.
Affirmed.
ELLINGTON and BAKER, JJ., Concur.