Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 42496–7–II.

Attorney(S)

Catherine E. Glinski, Attorney at Law, Manchester, WA, for Appellant. Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.

Judges

Lisa R. Worswick

See more information ...

Smart Summary

Case Summary: State of Washington v. Stephen Blair Clark, No. 42496–7–II (Wash. App., June 4, 2013)

Factual and Procedural Background

On the evening of January 5, 2011, a white Saturn ran an intersection and crashed into a house. Jeffrey Rimack observed the passenger (later identified as Stephen Blair Clark) exit the vehicle; the driver fled. Clark approached Rimack and neighbors asking for assistance moving the car. Clark, who and others observed to be highly intoxicated, asked Veronica Reczek whether she was on the phone with police; when she said she was, Clark leaned toward her and said, "Don't you know that snitches get stitches, bitch?" Clark testified at trial that he had been highly intoxicated, had been the passenger, had fallen asleep, awoke during the crash, did not remember making the comment but did not doubt he made it, and said he did not intend to threaten anyone but wanted to get away because he feared police might think he was the driver.

The State charged Clark by amended information with intimidating a witness (RCW 9A.72.110) and, after he missed a required court appearance, with bail jumping. At trial Clark proposed a two-paragraph definitional instruction on "threat" that included a paragraph stating that, to be a threat, a statement must be such that a reasonable person in the speaker's position would foresee it being interpreted as a serious expression of intent to carry out the threat (a "true threat" instruction). The trial court declined to give the second paragraph of Clark's proposed instruction (the "true threat" paragraph), giving only a more limited definition. The jury convicted Clark on both counts. Clark appealed his intimidating-a-witness conviction, arguing that the court erred in refusing his proposed "true threat" instruction and that the refusal allowed conviction based on constitutionally protected speech.

Legal Issues Presented

Whether the trial court erred by refusing to give Clark's proposed definitional instruction defining "true threat" (i.e., whether a "true threat" instruction was required under the First Amendment and applicable Washington law for the crime of intimidating a witness under RCW 9A.72.110).
Whether the jury could have convicted Clark based on constitutionally protected speech because the trial court did not provide the "true threat" instruction Clark requested.

Arguments of the Parties

Appellant's Arguments

Clark argued that RCW 9A.72.110 criminalizes speech and that, because his proposed instruction would have limited conviction to "true threats," the trial court's refusal to give that instruction permitted the jury to convict him for speech protected by the First Amendment.

The opinion does not contain a detailed account of the State's responsive or opposing arguments beyond the trial court's reliance on prior authority (State v. King) and the instructions the State proposed at trial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Schaler, 169 Wash.2d 274, 236 P.3d 858 (2010)	Provides the analytic framework for determining when a "true threat" instruction is required; holds that the First Amendment requires at least a negligence mens rea as to the result, and analyzes whether the statute includes a mens rea as to the proscribed result.	The court applied Schaler's framework to conclude that because RCW 9A.72.110 requires proof that the defendant acted "by use of a threat" in an attempt to induce the witness not to report (i.e., a mens rea as to the result), a separate "true threat" instruction was unnecessary here; the court further noted Schaler superseded earlier authority relied upon by the trial court.
State v. Kilburn, 151 Wash.2d 36, 84 P.3d 1215 (2004)	Quoted definition of a "true threat": a statement made in a context where a reasonable person would foresee it being interpreted as a serious expression of intent to inflict bodily harm.	Used as the definitional authority for what constitutes a "true threat" when discussing First Amendment protections and the need for limiting instructions to avoid criminalizing protected speech.
State v. King, 135 Wash.App. 662, 145 P.3d 1224 (2006)	Had held that witness intimidation does not prohibit constitutionally protected speech (as cited by the trial court in declining Clark's instruction).	The trial court relied on King in refusing Clark's proposed instruction; the appellate court noted Schaler supersedes King and therefore did not further assess the trial court's reliance on King.
State v. Allen, 176 Wash.2d 611, 294 P.3d 679 (2013)	Recognizes that a trial court must give a "true threat" instruction for certain crimes (example given: felony harassment).	Cited to show that some crimes require a "true threat" instruction; used as part of the broader discussion of when such instructions are necessary.
State v. Johnston, 156 Wash.2d 355, 127 P.3d 707 (2006)	Applied the "true threat" requirement in the context of a bomb threat statute; discussed the limits of RCW 9.61.160 in a later citation.	Cited among authorities indicating when a "true threat" instruction is required; also cited in a contrasting note about the interpretation of RCW 9.61.160.
State v. Ballew, 167 Wash.App. 359, 272 P.3d 925 (2012)	Cited in context of threats to bomb or injure property as an instance where instruction defining threats was relevant.	Included among cases illustrating situations in which a "true threat" instruction has been required or discussed.
State v. Tellez, 141 Wash.App. 479, 170 P.3d 75 (2007)	Addressed felony telephone harassment based on a threat to kill; cited as an example of cases where "true threat" issues arise.	Included in the list of cases the court referenced when describing circumstances that may require a "true threat" instruction.
State v. Brown, 137 Wash.App. 587, 154 P.3d 302 (2007)	Held there was insufficient evidence to show a future threat on a charge of intimidation of a judge.	Used as an example of application of threat/true-threat analysis in related contexts.
State v. Edwards, 84 Wash.App. 5, 924 P.2d 397 (1996)	Stated that, for RCW 9.61.160 (threats to injure property), the State need not prove the defendant intended to carry out the threat because the statute criminalizes communicating a threat rather than the intent to carry it out; noted contrasting authority that limits RCW 9.61.160 to true threats.	The opinion cited Edwards to illustrate differing statutory treatments of threats, and noted the "but see" contrary citation (Johnston) indicating disagreement in some contexts about whether RCW 9.61.160 is limited to true threats.

Court's Reasoning and Analysis

The court began by identifying the appropriate standard of review: claimed instructional error implicating legal and constitutional questions is reviewed de novo, and First Amendment questions receive independent review of the record (citing State v. Schaler and State v. Kilburn as authority for those principles).

The court explained the legal context: the First Amendment does not protect "true threats," defined as statements that a reasonable person would interpret as a serious expression of intent to inflict bodily harm. However, to protect free speech, courts must ensure that criminal statutes and jury instructions do not permit conviction for protected speech that is mere jest, idle talk, or hyperbole.

The court summarized Schaler's analytic framework: determine whether the statutory offense contains a mens rea as to the proscribed result; if the statute does not include such a mens rea, then a "true threat" instruction is required to avoid criminalizing protected speech. In Schaler, the absence of any mens rea as to the result allowed a jury to convict based on protected speech and required reversal.

Applying Schaler here, the court observed that RCW 9A.72.110 and the trial court's instructions required the jury to find that Clark acted "by use of a threat" in an attempt to induce a witness not to report information relevant to a criminal investigation—that is, the State had to prove an attempt to induce the witness not to report (a mens rea as to the result). Because that element supplies the mens rea Schaler requires, the court concluded the "true threat" definitional instruction Clark proposed was unnecessary. In short, the instructions required the jury to find an intentional act to induce nonreporting, which prevents conviction based merely on constitutionally protected speech.

The court also noted that although the trial court relied on State v. King in declining to give the proposed instruction, Schaler superseded King; therefore the appellate court applied Schaler's framework rather than addressing whether King was correctly applied at trial.

Because the instructions given required proof of an intentional attempt to induce a witness not to report (the mens rea element), the appellate court concluded that the trial court did not err in refusing Clark's proposed "true threat" paragraph and did not impinge on Clark's First Amendment rights.

Holding and Implications

HOLDING: The court affirmed the conviction. AFFIRMED.

Implications: The direct effect of the decision is that Clark's conviction for intimidating a witness stands; the appellate court concluded that the jury instructions, which required proof that Clark attempted by use of a threat to induce a witness not to report, supplied the mens rea necessary under Schaler to avoid convicting based on protected speech. The opinion does not announce a new rule of law; rather, it applies the analytic framework from State v. Schaler to the facts of this case and concludes that the proposed "true threat" instruction was unnecessary. The court also noted that Schaler superseded State v. King, and therefore did not rely on King to justify the result.

This summary is limited to information explicitly contained in the provided opinion.

Show full summary ...

STATE of Washington, Respondent, v. Stephen Blair CLARK, Appellant.

WORSWICK

Catherine E. Glinski, Attorney at Law, Manchester, WA, for Appellant. Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.
WORSWICK, C.J.

¶ 1 Stephen Blair Clark appeals his conviction of intimidating a witness, contending that the trial court erred in not giving his proposed definitional instruction of a “true threat.” Because the trial court's instructions properly precluded the jury from convicting Clark based on constitutionally protected speech, we affirm.

Clark's notice of appeal shows that he also appeals his related bail jumping conviction, but he has no assignments of error or arguments challenging this conviction and, thus, we do not address it in this opinion.

FACTS

¶ 2 On January 5, 2011, around 10:30 in the evening, Jeffrey Rimack looked out his window when he heard a high-revving car speed past his home. He watched as the white Saturn went straight through a “T” intersection, crashed through a cyclone fence, drove across the neighbor's front yard, and smashed into the home's front door. While rushing to the scene, Rimack observed the passenger, later identified as Clark, get out of the passenger door, followed by the driver, and saw the driver run off, stumble in a ditch, and disappear. Clark stumbled over to Rimack and several neighbors that had gathered at the scene and asked them to help him pull the car away from the house.

¶ 3 When Clark noticed Veronica Reczek on the phone, he asked her if she was on the phone with the police. When she responded that she was, Clark leaned toward her and said, “Don't you know that snitches get stitches, bitch?” Report of Proceedings at 43. This remark startled her because she was concerned that Clark could be hurt and she was trying to help him. Both Rimack and Reczek noticed that Clark smelled strongly of alcohol and appeared highly intoxicated.

¶ 4 The State charged Clark by amended information with intimidating a witness and, after he missed a required court appearance, with bail jumping. Clark testified at his jury trial that he was the passenger, was highly intoxicated, had fallen asleep in the car, and had awoken when his head smashed into the dashboard during the crash. He testified that he did not remember making the snitches comment but that he did not doubt that he made it. He explained that he was concerned the police would think he was the driver and did not intend to threaten anyone; he just wanted to getaway.

¶ 5 Clark proposed the following definitional instruction:

As used in these instructions, threat means to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time. Threat also means to communicate, directly or indirectly, the intent to cause bodily injury in the future to the person threatened or to any other person.

To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat rather than as something said in jest or idle talk.
Clerk's Papers (CP) at 44. The trial court, citing State v. King, 135 Wash.App. 662, 145 P.3d 1224 (2006), declined to instruct the jury on the second paragraph of this proposed instruction, instructing it only on the first as the State had proposed.

¶ 6 The trial court's jury instructions also defined the offense: “A person commits the crime of intimidating a witness when he or she by use of a threat against a current or prospective witness attempts to induce that person not to report the information relevant to a criminal investigation.” CP at 56 (Jury Instruction 7). And, in instruction 8, set out the elements of the offense:

To convict the defendant of the crime of intimidating a witness as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about January 5th, 2011, the defendant by use of a threat against a current or prospective witness attempted to induce that person not to report the information relevant to a criminal investigation; and

(2) That the acts occurred in the State of Washington.
CP at 57.

¶ 7 The jury found Clark guilty on both counts. Clark appeals.

ANALYSIS

¶ 8 Clark asks us to reverse his intimidating a witness conviction because the trial court should have given his proposed “true threat” definitional instruction. He argues that because RCW 9A.72.110 criminalizes speech, the trial court's refusal to give his proposed instruction permitted the jury to convict him based on constitutionally protected speech.

.RCW 9A.72.110 (1) provides:

A person is guilty of intimidating a witness if a person, by use of a threat against a current or prospective witness, attempts to:
(a) Influence the testimony of that person;
(b) Induce that person to elude legal process summoning him or her to testify;
(c) Induce that person to absent himself or herself from such proceedings; or
(d) Induce that person not to report the information relevant to a criminal investigation.

¶ 9 We review de novo a claimed instructional error based on a legal ruling or a constitutional question. State v. Schaler, 169 Wash.2d 274, 282, 236 P.3d 858 (2010). We independently review the record in First Amendment cases to ensure that the legal ruling does not intrude on free expression. Schaler, 169 Wash.2d at 282, 236 P.3d 858 (quoting State v. Kilburn, 151 Wash.2d 36, 49–50, 84 P.3d 1215 (2004)). The First Amendment does not, however, protect “true threats.” Schaler, 169 Wash.2d at 283, 236 P.3d 858. “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 person.’ ” Schaler, 169 Wash.2d at 283, 236 P.3d 858 (quoting Kilburn, 151 Wash.2d at 43, 84 P.3d 1215). “The First Amendment prohibits the State from criminalizing communications that bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole.” Schaler, 169 Wash.2d at 283, 236 P.3d 858 (citing Kilburn, 151 Wash.2d at 43, 84 P.3d 1215).

¶ 10 The trial court must give the jury an instruction defining “true threats” for several types of crimes. See State v. Allen, 176 Wash.2d 611, 628–30, 294 P.3d 679 (2013) (felony harassment); Schaler, 169 Wash.2d at 287, 236 P.3d 858 (threats-to-kill provision of harassment statute); State v. Johnston, 156 Wash.2d 355, 364, 127 P.3d 707 (2006) (bomb threat statute); State v. Ballew, 167 Wash.App. 359, 370, 272 P.3d 925 (2012), review denied,175 Wash.2d 1019, 290 P.3d 994 (2012) (threatening to bomb or injure property); State v. Tellez, 141 Wash.App. 479, 484, 170 P.3d 75 (2007) (felony telephone harassment based on a threat to kill); see also State v. Brown, 137 Wash.App. 587, 589, 154 P.3d 302 (2007) (insufficient evidence to show a future threat on charge of intimidation of a judge). But the instruction is not required in all cases. See Schaler, 169 Wash.2d at 287, 236 P.3d 858 (no “true threat” instruction is necessary when instructions given require a mens rea as to the result); King, 135 Wash.App. at 666–67, 145 P.3d 1224 (witness intimidation does not prohibit constitutionally protected speech); State v. Edwards, 84 Wash.App. 5, 12, 924 P.2d 397 (1996) (State need not prove that threat to injure property is a “true threat” because RCW 9.61.160 criminalizes communicating a threat, not the defendant's intent to carry it out); but see State v. Johnston, 156 Wash.2d 355, 364, 127 P.3d 707 (2006) (RCW 9.61.160 is limited to true threats).

¶ 11 In Schaler, our Supreme Court provided an analytic format for resolving whether a “true threat” instruction is necessary. 169 Wash.2d at 286–87, 236 P.3d 858. The key question the Court asked was whether the statute, included a mens rea as to the proscribed result and, if not, a “true threat” instruction was necessary to protect the defendant's right of free speech. 169 Wash.2d at 287, 236 P.3d 858. The trial court instructed the Schaler jury that Schaler had to intend to communicate a threat. 169 Wash.2d at 286, 236 P.3d 858. The instructions did not, however, require the jury to find that Schaler intended that the person threatened reasonably fear that the threat would be carried out. 169 Wash.2d at 286, 236 P.3d 858. The Court held:

Because the First Amendment requires [the mens rea of] negligence as to the result but the instructions here required no mens rea as to result, the jury could have convicted Schaler based on something less than a “true threat.” The instructions were therefore in error.

Because they did not comply with the First Amendment's “true threat” requirement, the instructions given at trial allowed the jury to convict Schaler based on his utterance of protected speech.
Schaler, 169 Wash.2d at 287, 236 P.3d 858 (footnotes omitted).

¶ 12 Here, the instructions do not suffer a similar flaw as they required the jury to find an intentional act; namely, that Clark, by use of a threat, “attempted to induce that person not to report the information relevant to a criminal investigation.” CP at 57. The trial court relied on King. 135 Wash.App. at 662, 145 P.3d 1224. But Schaler superseded King and presents the analytic framework to apply in “true threat” cases and therefore we need not address whether the trial court's reliance on King was appropriate. Focusing on the criminal statute's mens rea element as in Schaler demonstrates that the State had to prove that Clark threatened a potential witness in an attempt to induce that witness not to report what she knew to the police. In other words, the State had to prove that Clark made a true threat. The element of inducing the witness not to report supplies the mens rea for the result that Schaler requires. Clark's proposed instruction was unnecessary and therefore the trial court did not err or impinge on Clark's First Amendment rights in refusing to give it to the jury.

¶ 13 We affirm. We concur: PENOYAK and BJORGEN, JJ.
-------- Notes:

State v. Clark