People v. Goodwin, 2018 IL App (1st) 152045 (September). Episode 543 (Duration 21:33)

Defendant mouth's off to a prosecutor but this was not threatening a public official.

Gist

Defendant was charged with threatening a public official, intimidation, and unlawful restraint after he yelled obscenities at an assistant state’s attorney and followed her down the hall of the courthouse to her office.

After a jury trial, defendant was convicted of threatening a public official and unlawful restraint. He was ultimately sentenced to 2 1/2 years imprisonment.

What Happened?

Traffic court at the Daily Center had one ASA and her clerk. She was pregnant. The call was heavy and the judge was late taking the bench. The judge took the bench and called the first case. But the guy's attorney had to be in federal court at 10 a.m., and asked the ASA to put his name in the record and ask for a short date.

In response, the judge “yelled” at the ASA sayin, something like:  “How dare you let attorneys leave, I wanted this case called.”

The ASA stated that the judge gave the case a very short date and “threw some papers and stormed off the bench and yelled at me to get my shit together.” She thought they guy might think the judge was yelling at him, so she told him to come to her office down the hall to call his attorney and let him know what happened.

The Defendant

The two turned towards the back of the courtroom and walked down the aisle towards the double doors, only one of which opened. A man, whom she identified as defendant, was standing by the door that did not open and “approached me and he was like laughing and kind of pointing his finger, oh, you made the judge mad; ha, ha, you made the judge mad.”

The ASA testified that she responded, “between the two of us you are here on bond, so why don’t you find a seat.”

As a result, defendant “got really loud and really angry, and he started putting his finger in my face and said, come back here and say that to my face, get back here and say that to my face.”

She then went to walk out the door with the other guy without the attorney still to her right. Defendant squeezed through the door with her at the exact same time, so he was right in her face. They walked 40 feet to small satellite office. On the way to the office, defendant followed her. The whole time he was just screaming louder and louder things like; "fuck you bitch, come back here and say that to my face, you can’t talk to me, fuck you bitch." Screaming right in her face.

When she got to the office she reached for the door handle and defendant “turned like right in front of the door, like right in front of me so I [could not] get into the door.” She could not get into her office at this point because defendant’s body was blocking the door.

Other Dude Helps Out

The guy without his attorney was walking down the hallway with the ASA and defendant. He got between them when she was trying to get into the office and helped her out a bit.

Defendant was outside the door in the hallway while defendant was in the office. He was yelling the whole time and she couldn't leave.

Sheriff Shows Up

Eventually, her collegaues so what is going on and they go and fetch the sheriff.

 Shortly thereafter, the sheriff came to the office, and defendant left. Defendant never verbally threatened her with bodily harm. While defendant was standing outside her office, he was on the phone. 

Threatening A Public Official

Section 12-9 of the Criminal Code of 2012 (Code) (720 ILCS 5/12-9 (West 2014)) provides, in relevant part:

“(a) A person commits threatening a public official or human service provider when:

(1) that person knowingly delivers or conveys, directly or indirectly, to a public official or human service provider by any means a communication: (i) containing a threat that would place the public official or human service provider or a member of his or her immediate family in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint; or *** and

(2) the threat was conveyed because of the performance or nonperformance of some public duty or duty as a human service provider, because of hostility of the person making the threat toward the status or position of the public official or the human service provider, or because of any other factor related to the official’s public existence.”

What Does "Threat" Mean?

Further, the jury was given an instruction regarding the definition of a threat based on IPI Criminal 4th No. 13.33F (1)-(2), (5). Specifically, the court stated,

“The word threat means a menace, however communicated, to inflict physical harm on the person threatened or any other person or on property or subject any person to physical confinement or restraint or expose any person to hatred, contempt, or ridicule.”

Issue

We first address defendant’s contention that the State failed to prove him guilty beyond a reasonable doubt of the offense of threatening a public official.

 Defendant argues that he did not convey a threat, let alone a “true threat” as was necessary in order to convict. He says his conviction violates the first amendment of the United States Constitution.

The First Amendment

The first amendment, applicable to the states through the fourteenth amendment, prohibits the enactment of laws “abridging the freedom of speech.” U.S. Const., amends. I, XIV.

The first amendment signifies that the government does not have the power to prohibit expression based on its subject matter, message, ideas, or content. However, the Supreme Court has recognized that there are categories of expressions that are not protected by the first amendment, such as “true threats.” United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opinion).

What's A "True Threat"?

We have consistently held that if the State charges a defendant with making a threat of violence, the threat must be a “true threat,” or else the prosecution would violate the first amendment. People v. Wood, 2017 IL App (1st) 143135. Further, when interpreting section 12-9 of the Code, “we have held that intentionality on the defendant’s part is required.” Wood, 2017 IL App (1st) 143135, ¶ 13 (citing Dye, 2015 IL App (4th) 130799, ¶ 10). In Dye, this court observed that

“a ‘true threat’ requires intentionality, in contrast to section 12-9(a)(1), which, by its terms, requires merely knowledge (‘knowingly’).”

Dye, 2015 IL App (4th) 130799, ¶ 10. This means that in order for a defendant’s conviction for threatening a public official to stand, the threat must have been a “true threat.”

See id. In Virginia v. Black, the Supreme Court explained a “true threat” as follows:

“‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”

538 U.S. 343, 359-60 (2003).

The Dictionary On Threat

Black’s dictionary says that “ ‘[t]rue threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Black, 538 U.S. at 359-60.

The "True" Issue

Pursuant to Black, the question we must address is whether the State proved beyond a reasonable doubt that defendant communicated a serious expression of intent to commit an act of unlawful violence against the ASA that placed her in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint.

The Objective Test

It appears that the Seventh Circuit’s approach has been, and remains, an objective one, which allows evaluation of the speaker’s communication under either the reasonable-speaker or the reasonable-recipient test. (As opposed to a test that consider's the speaker's subjective intent.) See People v. Diomedes, 2014 IL App (2d) 121080, ¶ 35 (feds apply a more objective test).

Further, although courts in this state have not explicitly decided the issue, the approach also appears to be objective. In addressing that claim, the court noted that, while there has been a federal split of authority interpreting Black, Illinois courts have found that the term ‘threat’ implies generally that the expression has a ‘reasonable tendency to create apprehension that its originator will act according to its tenor.’

This definition suggests that an objective, not a subjective, approach continues to apply. Therefore, it appears that neither the objective reasonable-speaker nor the objective reasonable-recipient approach is foreclosed from our consideration. Indeed, in our view, the reasonable-speaker test, by requiring consideration of how others might interpret the communication, essentially subsumes or encompasses the reasonable recipient test.

Defendant Might Lose Under A Purely Objective Test

In any event, even applying, per defendant’s request, the reasonable speaker approach, we conclude that the evidence here is such that a speaker would reasonably foresee that a listener would reasonably interpret the communication as a serious expression of intent to harm.” 

People v. Dye

Conversely, defendant relies on Dye and Wood as support for a test with a subjective component.

In Dye, the Fourth District applied a subjective test in reaching its conclusion that the evidence did not prove that when the defendant told an assistant public defender, “I’m gonna get you,” the defendant intended to convey the idea of violent retribution, as opposed to nonviolent retribution.

See Episode 089 - People v. Dye, 2015 IL App (4th) 130799, ¶ 12 (August).

People v. Wood

Similarly, in Wood, this court determined that the Supreme Court’s decision in Elonis v. United States, 575 U.S. ___, ___, 135 S. Ct. 2001, 2011 (2015), required that “statutes criminalizing speech for being threatening require proof that the speaker intends the communication to be a threat and that a reasonable listener would understand the communication to be threatening.”

See Episode 426 - People v. Wood, 2017 IL App (1st) 143135, ¶ 13 (November). 

Defendant's Intent Matters

The State has failed to present, and we have not found, a compelling reason why we should depart from the test applied by this court in Wood. We apply the same test as in Wood, and thus decide whether the State proved beyond a reasonable doubt that defendant intended his communication to the ASA to be a threat that a reasonable listener would understand to be threatening.

Had we opted to apply the State’s version of the test, then our question would be whether the State proved beyond a reasonable doubt that a reasonable person in defendant’s position would have foreseen that a listener would reasonably interpret his communication as a serious expression of intent to harm.

There Is Also A Knowledge Requirement

We also fail to see how the State could prove the requisite elements of threatening a public official without a subjective component because section 12-9 of the Code requires that a person “knowingly” convey a communication containing a threat. 720 ILCS 5/12-9.

A person acts knowingly if he is consciously aware that his conduct is practically certain to cause the prohibited result. People v. Lengyel, 2015 IL App (1st) 131022, ¶ 45. Thus, the language of the statute makes clear that defendant’s subjective intent is relevant to determine whether the State satisfied the requisite elements.

Analysis - Wood

We find that, viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of threatening a public official beyond a reasonable doubt where the State presented no evidence that defendant meant to communicate a serious expression of an intent to commit an unlawful act of violence.

In Wood, this court was recently faced with a question similar to the one before us now. There, the defendant was charged with threatening a public official after he left a voicemail for his public defender wherein the defendant stated, inter alia, that he hated the judge who presided over his case and “pray[ed] for the death and destruction upon the judge and upon every single person who sentenced [him].” Wood, 2017 IL App (1st) 143135, ¶ 4.

The court further explained, “Under recent Supreme Court precedent, statutes criminalizing speech for being threatening require proof that the speaker intends the communication to be a threat and that a reasonable listener would understand the communication to be threatening.” The Wood court stated that the defendant’s statements were not “ ‘serious expression[s] of an intent to commit an act of unlawful violence to a particular individual.’ ” Id. ¶ 15 .

In fact, the court opined that the defendant never said he was going to do anything, but instead merely hoped and prayed that bad things would happen to those he felt had wronged him. The court explained that the statements at issue did not warn of any future harm, were vague and ambiguous, and did not indicate any actual intent to carry out a threat or any intent to affirmatively do anything.

Analysis - Dye

We also find Dye applicable to the case at bar.

In Dye, the defendant and his public defender had a meeting where the public defender informed the defendant that she had subpoenaed some documents and inadvertently uncovered evidence that would be harmful to the defendant’s case, and that the State would receive a copy of this harmful evidence. Dye, 2015 IL App (4th) 130799, ¶ 3.

The defendant became irate and pointed at the public defender and told her, “I’m gonna get you,” two or three times. Id. ¶¶ 4-5. The public defender responded, “Are you fucking threatening me?” and the defendant stated, “No, no. I ain’t threatening you” Id. ¶ 5.

On appeal, the court reversed defendant’s conviction for threatening a public official because it found that it would have been impossible for any rational trier of fact to find, beyond a reasonable doubt, that the defendant made a “true threat” within the meaning of Black. Id. ¶ 1. Specifically, the court held that the defendant’s threat was ambiguous as to whether the intended meaning was violent retribution or nonviolent retribution, and the context of the threat could not reasonably resolve the ambiguity.

The Dye court stated, “we interpret section 12-9 as requiring intentionality.” Id. ¶ 10. The court then acknowledged that “no witness had direct sensory access to defendant’s mind and intent,” and thus “the trier of fact could determine what he intended only by drawing inferences from his conduct, including what he said.” Id. ¶ 11. There was no evidence that would justify a reasonable inference that the defendant intended to convey the idea of violence. 

Analysis

In this case, like in Wood and Dye, the evidence presented by the State was not sufficient to prove that defendant meant for his communications and expressions to the ASA to convey a serious intent to carry out an unlawful act of violence.

Simply put, the State did not meet its burden to prove that defendant meant to threaten Gill with unlawful violence. It is undisputed that defendant did not make any verbal threats to her. According to the ASA the worst thing defendant said was,

“Fuck you, bitch, come back here and say that to my face, you can’t talk to me, fuck you bitch.”

But witnesses testified they never heard defendant say “fuck you, bitch” or threaten her with physical harm.

There was no evidence that defendant verbally threatened The ASA. This is significant because, as a result, whether the State met its burden depends on whether any rational trier of fact could reasonably infer from defendant’s expressions and demeanor that he intended to commit an unlawful act of violence against the ASA.

Merely because defendant used offensive language in a loud voice does not create a reasonable inference that he intended to use violence. When people are angry, however, they tend to become loud and tense and to make vigorous gestures—even when threatening to do something nonviolent.

Additionally, the evidence did not show beyond a reasonable doubt that defendant made any overtly threatening gestures. Defendant put his finger in her face. However, this is not an overtly threatening gesture, such as shaking a fist at someone, dragging a finger across one’s throat, or pounding a fist into an open hand. In the context of the factual scenario here, defendant’s pointing at her while yelling his desire to learn her name in an expletive-laden tirade does not rationally indicate his desire to inflict violent harm on the ASA. 

Rather, the evidence creates a reasonable inference that defendant was attempting to obtain Gill’s name so that he could file a complaint against her. This was corrooborated by other witnesses. Further, defendant generally complied with the sheriff when ordered back into the courtroom. This indicates that defendant was not seriously expressing an intent to commit an act of unlawful violence.

Holding

We find that no rational trier of fact could have found that the State proved beyond a reasonable doubt that defendant intended to convey an unlawful threat of violence to the ASA.

We disagree that the totality of defendant’s conduct evidenced his intent, or allowed reasonable inferences to be drawn therefrom that would evidence his intent, to convey a serious threat of unlawful violence against the ASA. The totality of the evidence here did not satisfy the State’s burden. It would be purely speculative to infer that defendant intended to convey a threat of unlawful violence.

Rather, we agree with defendant that a reasonable inference could be drawn from defendant’s statements and conduct that he was angry about what the ASA had said to him in the courtroom, wanted to find out her name so that he could file a complaint, and wanted her to come out of the office to provide him with her information. While we would characterize defendant’s conduct as “distasteful, inept, and crude,” as in Dye, we also view such conduct as “not criminal.” See Wood, 2017 IL App (1st) 143135.

Simply put, the State’s evidence and closing argument improperly focused on defendant’s conduct solely from the perspective of the victim.

Because “we interpret section 12-9 as requiring intentionality” (Dye, 2015 IL App (4th) 130799, ¶ 10), the State was required to prove defendant’s intent to convey a threat of unlawful violence beyond a reasonable doubt, but failed to do so. As such, we reverse defendant’s conviction for threatening a public official.

We also remand this matter to the circuit court to impose a sentence on defendant’s unlawful restraint conviction.