State v. Johnstone

¶1¶ 19. concurring. I fully concur in the opinion for the court. I add only my view that Condition M should be modified to avoid the interpretation issues that have plagued its enforcement. Condition M has become part of the standard form probation conditions imposed in every case. It is, however, not required by statute, see 28 V.S.A. § 205(c)(1), nor on the list specifically authorized by statute, id. § 252(b). Thus, its use is entirely within the control of the judiciary.

¶2¶ 20. As the cases discussed in the majority opinion demonstrate, the application and interpretation of Condition M have been challenged primarily in cases where the probation officer has alleged that the probationer engaged in “threatening behavior,” but the “behavior” involved has been primarily or exclusively speech. On the one hand, the prosecution argues that speech is behavior and, on the other, the defendant argues it is not. The cases have tried to find a middle ground between these positions, and the results are not always predictable.

¶3*238¶ 21. It is clear to me that the need is for better language that anticipates the interpretation difficulties and defines more specifically the coverage of the condition. If we are to have judiciary-created standard probation conditions, imposed in every case, we must take more seriously our obligation to improve and correct them where our enforcement experience shows that improvement or correction is needed. Language clarification is a better course of action than regular appeals raising variations of the same question that do not lead to a comprehensive solution.

¶4¶ 22. Wouldn’t it be nice if this were the last decision of this Court on the meaning of Condition M because Condition M is amended to eliminate the interpretation questions?

¶5¶ 23. I am authorized to state that Judge Kupersmith joins this concurrence.

¶6¶ 24. dissenting, in part.3 If the threatening nature of declaring one’s probation officer would “end up in a body bag” was not apparent to defendant, as supposed by the majority, his obliviousness was not evident from his motion to dismiss. Nor was any lack of intent to convey this message to his probation officer apparent from the circumstances alleged. In response to the dismissal motion, the State offered proof that probation Condition M expressly warned defendant that threatening behavior was prohibited and that defendant nevertheless delivered a loud and angry tirade against the officer culminating in the not-too-subtle prediction of her demise. Viewed in the light most favorable to the State, and regardless of whether the officer was immediately present to receive the threat firsthand, this evidence was sufficient to support the charge that defendant engaged in threatening behavior in ;violation of probation (VOP), and the trial court so ruled. Because defendant reserved only the right to challenge the State’s prima facie case on appeal, and the trial court’s ruling on this point was not in error, I respectfully dissent from reversing his conditional admission to the VOP.

¶7¶25. Invoking State v. Sanville, 2011 VT 34, 189 Vt. 626, 22 A.3d 450 (mem.), defendant sought dismissal only on the grounds that Condition M was overly vague and because his comment was merely “mouthing off,” rather than intended to convey a threat. The majority, like defendant, takes Sanvilleout of the context of *239its facts to condemn Condition M as inherently vague for failing to “afford defendant a reasonable opportunity to know what actions were prohibited, so that he might act accordingly.” Id. ¶ 10 (quotation and alterations omitted); ante, ¶ 16. What Sanvilleactually referred to was a failure of Condition M to “fairly inform” a probationer that merely “mouthing off” with “blustering],” “mouthy,” and “obnoxious” statements would violate probation, 2011 VT 34, ¶¶ 9-11, in contrast to actual threats that “communicate intent to inflict physical or other harm.” Id. ¶ 12 (quotation omitted). It is beyond cavil that behavior neither communicating, nor intended to communicate, such a threat is not “threatening behavior” prohibited by Condition M, and given the putative victim’s own perception in Sanvillethat the probationer was only “mouthing off,” this Court found there was no threat. Id. ¶¶ 9-10.

¶8¶ 26. In the trial court below, on a motion to dismiss, there was no such evidence from the probation officer or defendant, and there was no such finding. Rather, the court determined the proffered evidence sufficient to prove threatening behavior; The court observed, not surprisingly, that if threatening behavior is a “communicated intent to inflict physical or other harm” as defined in State v. Ashley, 161 Vt. 65, 72, 632 A.2d 1368, 1372 (1993), superseded by statute, 13 V.S.A. § 7554, then ranting against and “threatening to put your probation officer into a body bag would seem to meet this standard.” Such a particularized description of one’s own intent is preponderant evidence of an express threat, see State v. Blaise, 2012 VT 2, ¶ 12, 191 Vt. 565, 38 A.3d 1167 (mem.) (confirming standard of proof in VOP proceedings is preponderance of evidence), and an intentional death threat objectively falls within Condition M’s proscription against threatening behavior. The court’s conclusion is supported by the evidence.

¶9¶ 27. Similarly, defendant’s declaration that the officer “was going to end up in a body bag” was also prima facie evidence of a communicated intent to harm the officer. For a “true threat,” the State must prove a deliberate and serious expression of intent to commit unlawful violence against a particular person, but need not prove actual intent to carry out the threat. Virginia v. Black, 538 U.S. 343, 359-60 (2003). The trial court’s decision reflects that the State’s evidence was sufficient on this point as well, describing defendant as enraged at his probation officer in the moments leading up to his explicit prediction that the officer would end up in a body bag, and finding that dire allusion practically indistin*240guishable from a death threat. Again taking the evidence in a light most favorable to the State and excluding defendant’s characterization of his conduct as “blustering,” as we must in reviewing the denial of the motion to dismiss, see V.R.Cr.P. 12(d)(2); State v. Stamper, 2011 VT 18, ¶ 3, 189 Vt. 583, 15 A.3d 142 (mem.); Blaise, 2012 VT 2, ¶ 12, nothing in the court’s ruling is clearly erroneous.

¶10¶ 28. Defendant’s claim of a nonthreatening intent and other modifying evidence was not properly before the trial court at the motion to dismiss, and is not properly before the majority today. If defendant wanted the court to weigh his claimed subjective intent to just rail against the injustice of the situation, rather than communicate a threat to the probation officer, he was free to explain his nobler objective at a merits hearing. Defendant chose not to do so. Considering only defendant’s expressed malevolence, without his countervailing nuance of “blustering,” the trial court’s understanding of the declaration as a threat was facially supported by animus evident in defendant’s demeanor and choice of words.4 See Miles, 2011 VT 6, ¶ 8 (citing Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 622-24 (8th Cir. 2002) (en banc), for the proposition that “in determining whether statements are true threats of physical violence unprotected by First Amendment, courts must examine speech in light of entire factual context and consider several factors, including whether objectively reasonable person would view message as serious expression of intent to harm”).

¶11¶ 29. That defendant intended the officer to get the message was at least one logical inference to draw from the declaration and circumstances alleged. Defendant was not complaining in general, but focusing his remarks on the officer. His threat was loudly proclaimed just outside the courthouse, immediately following an adversarial court proceeding involving his probation officer and where the officer could hear the threat directly, as she did walking around the corner, or was at least likely to hear it indirectly through others. Given the forum, volume, and context, *241that defendant would not expect the officer to hear of his threat was patently unlikely. Thus, the majority’s view that prima facie evidence is missing on this element is wrong.5

¶12¶ 30. Justice Dooley’s concurring reiteration that Condition M is fatally vague is similarly unfounded, particularly on the record presented. The meaning of Condition M is not so opaque as to compel ordinary readers to consult their law libraries to divine its mysteries. Common and even marginal sense would put probationers on fair notice that threatening their probation officers with death qualified as “threatening behavior” prohibited by Condition M. Absent credible evidence to the contrary, what part of that behavior is not threatening? What is it about, an antagonist, known to be assaultive, declaring loudly in a public place that the officer would end up dead that is not threatening? Where is the danger of confusion with innocent conduct? Condition M cannot be confused with bluster, because bluster reflects no actual intent to put another in fear of harm as required for a threat. Under the circumstances before the trial court, and this Court, Condition M is in no need of clarification.

¶13¶ 31. I am authorized to state that Chief Justice Reiber joins this dissent.