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Powell v. State (11/9/00) ap-1701
Powell v. State (11/9/00) ap-1701
NOTICE: The text of this opinion can be corrected before
the opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
VICTOR Z. POWELL, )
) Court of Appeals Nos. A-7114 and A-7143
Appellant, ) Trial Court Nos. 1JU-S98-295 CR, -296 CR,
) -297 CR, -298 CR, & 1JU-S96-265 CR
v. )
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. )
) [No. 1701 November 9, 2000]
Appeal from the Superior Court, First Judicial
District, Juneau, Walter L. Carpeneti, Judge, and from the District
Court, First Judicial District, Peter B. Froehlich, Judge.
Appearances: Philip M. Pallenberg, Assistant
Public Defender, Juneau, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Nancy R. Simel, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
The superior court and the district court revoked Victor
Z. Powell's probation because Powell wrote three letters from prison
about his upcoming release to a Juneau halfway house. The superior
court concluded that these letters contained threats to inflict
physical harm, and that Powell committed third-degree assault [Fn.
1] and coercion [Fn. 2] by sending the letters. The district court
relied on the superior court's decision and also revoked Powell's
probation. Because we conclude that the letters do not support the
elements of coercion or third-degree assault, we reverse the
judgments of the superior and district courts.
Powell was on probation in four felony cases that arose
in Fairbanks and a misdemeanor case that originated in Juneau. As
a result of this Juneau case, Fairbanks Superior Court Judge Niesje
J. Steinkruger revoked Powell's probation on the felony cases,
imposed some suspended imprisonment, and continued Powell's
probation on various conditions including a condition that Powell
reside in a community rehabilitation center or halfway house for up
to eight months upon his release from incarceration. Venue for the
Fairbanks cases was changed to Juneau at some time because Powell
resided in Juneau and was supervised by the Juneau probation office.
Powell wrote four letters from prison while he was serving
the term revoked by Judge Steinkruger: (1) a September 10, 1997,
letter addressed to the halfway house, which was received by Andy
Swanston, the Operations Director of Gastineau Human Services
Corporation, which runs the Glacier Community Rehabilitation Center
(CRC) in Juneau; (2) a September 28, 1997, letter addressed to the
CRC, which was also received by Swanston; (3) an October 19, 1997,
letter addressed to Gastineau Human Services, which was also
received by Swanston; and (4) an October 27, 1997, letter addressed
to Southeast Rehabilitation Services, which was forwarded to
Gastineau Human Services and was received there by Swanston. In the
letters, Powell discussed his criminal and juvenile history and
expressed dissatisfaction with the condition that he live in the CRC
for eight months after his release from incarceration.
After receiving the letters, Swanston called Powell's
probation officer, Betty Tangeman, and told her about the letters
and that Tangeman was mentioned in them. Swanston advised that he
would probably not accept Powell at the CRC because he perceived the
letters to be threatening. On November 6, 1997, Swanston sent a
letter to the State and advised that Powell would not be accepted
at the CRC because of the letters. On February 1, 1998,
Probation Officer Tangeman filed a petition to revoke Powell's
probation in the four Fairbanks felony cases. The original petition
alleged that Powell had violated the special condition of his
probation to live in a halfway house by writing the letters that
ultimately resulted in Swanston declaring him ineligible to enter.
On February 18, 1998, Powell moved to dismiss Tangeman's petition
to revoke, arguing that (1) his probation could not be revoked
before it started; (2) the probation condition was an illegal
delegation of the court's sentencing authority; and (3) the letters
he wrote were constitutionally protected free speech for which his
probation could not be revoked. On February 19, 1998, Tangeman
filed an amended petition to revoke, adding the allegation that
Powell had committed third-degree assault and coercion by sending
the letters.
In the first letter, dated September 10, 1997, Powell
indicated, among other things, that: (1) when he was twelve years
old he had burned down a set of ATCO trailers like the one used at
the CRC for urinalysis testing and had burned down another
structure; (2) he does not "like fire in itself, [he] just like[s]
revenge . . . and when [he] get[s] angry . . . [he] find[s] a way
to vent [his emotions] . . . [to get] attention"; (3) he had
committed other destructive and violent acts; (4) he had decided
that he would not be "going back to jail alive" and had obtained
weapons and "cop killer" bullets to make sure he did not; (5) he
wrote the letter "to help us have an understanding why [he's] the
way [he is] today . . . [that] all [he] had was [his] baby boy, .
. . wife and daughter, . . . but now . . . all that will be gone
including [his] home so [he] will be sexually frustrated[,] pissed
off[,] and ready to have a good time with [our] new relationship";
(6) inquired if the CRC had insurance for arson; and (7) stated that
all of this was coming "right to [the CRC's] doorstep!"
In the second letter, dated September 28, 1997, Powell
stated, in relevant part that: "I shall never again be imprisoned.
. . . [a]s soon as I finish my business, I'm busten ass for parts
unknown. Till then, I'm as dangerous as a coral snake in a sleeping
bag. 'Never corner a frightened man.'"
In the third letter, dated October 19, 1997, Powell: (1)
stated "I am not in any way attempting to horass [sic], scare or
cause you any discomphert [sic]. I'm merely attempting to gain some
understanding on why I should be allowed in you[r] pleasant
establishment with my record and knowing you have nothing to offer
me that I don't already have"; (2) repeated the description of his
history that he had written in his September 10 letter; (3) stated
that "[m]y personality disorder was diagnosed as sociopathic traits.
I am now what the system conciders [sic] a danger to myself and you
guys not because I may snap, but because I am a manipulator and I
have impulsive behaviers [sic]"; (4) indicated that he still had a
number of guns "stashed"; (5) stated that if he lost his home and
family he would have "nothing to live for an[d] no [qualms] about
who [he] hurt[s] or how [he] act[s]."
In the letters, Powell expressly denied that they were
intended as threats. The State argues that Powell's denial was an
indication that he knew the letters could be understood as threats
and underscores the threatening nature of the letters.
The superior court cases were assigned to Superior Court
Judge Walter L. Carpeneti for adjudication on the petition to revoke
probation. On March 10, 1998, Judge Carpeneti conducted an
evidentiary hearing at which Swanston and the probation officer to
whom Swanston forwarded the letters testified. Judge Carpeneti
entered a written order of adjudication. Judge Carpeneti dismissed
the first allegation of the amended petition on the grounds that (1)
the special condition of probation could not be violated before
Powell's probation commenced, and (2) the condition was an illegal
delegation of the court's sentencing authority. Judge Carpeneti
found that (1) Powell had written the letters; (2) the letters
intentionally contained threats to cause death or serious physical
injury; (3) the letters were designed to compel Swanston to
disqualify Powell for admission into the CRC; and (4) the letters
did compel that result. Judge Carpeneti found that the State had
proven that Powell committed third-degree assault and coercion and
revoked Powell's probation. Judge Carpeneti also found that
revoking Powell's probation did not violate his constitutional
rights to free speech. At disposition, Judge Carpeneti imposed
Powell's suspended imprisonment.
Powell and the State agreed to accept Judge Carpeneti's
adjudication on the felony petition for purposes of the Juneau
misdemeanor case. Judge Froehlich agreed that the letters
constituted violations of law and revoked Powell's probation. Judge
Froehlich imposed Powell's suspended imprisonment concurrent with
the felony cases.
Discussion
We review a trial court's factual findings regarding a
probation revocation for clear error. [Fn. 3] On questions of
statutory interpretation, we exercise independent judgment. [Fn. 4]
First, Powell claims that the coercion statute is
overbroad. Powell cites to an Oregon case, Oregon v. Robertson,
[Fn. 5] that held on Oregon state constitutional grounds that the
Oregon coercion statute that was practically identical to the Alaska
coercion statute was unconstitutionally overbroad. [Fn. 6] The
Robertson court concluded that it could not exercise its power to
give a limiting construction to the statute that would save its
constitutionality without running afoul of the legislative intent.
[Fn. 7]
Alaska Statute 11.41.530(a)(1) provides that a person
commits coercion
if the person compels another to engage in
conduct from which there is a legal right to abstain or abstain from
conduct in which there is a legal right to engage, by means of
instilling in the person who is compelled a fear that, if the demand
is not complied with, the person who makes the demand or another may
inflict physical injury on anyone . . . or commit any other crime[.]
However, to prove this count of the probation revocation, the State
was required to prove that Powell compelled someone to act or to
refrain from acting in the face of a demand from Powell that if
Powell's demand was not complied with, Powell would inflict physical
injury on someone or commit some other illegal act.
We conclude from our independent examination of Powell's
letters they do not contain any explicit demand for specific action
or restraint from action on the part of anyone at the CRC.
Furthermore, the State did not argue nor did the superior court find
that any of the three letters that formed the basis of the coercion
claim contained an implicit demand that anyone at the CRC should act
or refrain from acting in a specific way. Because the court did not
find that the State proved the element of a demand from Powell, the
court's adjudication that Powell violated his probation by
committing coercion must be reversed. Because the court did not
find that the State proved an essential element of coercion, we need
not pass on Powell's claim that the coercion statute is overbroad.
Next, we must consider Powell's challenge to the superior
court's conclusion that he committed third-degree assault under AS
11.41.220(a)(2). Alaska Statute 11.41.220(a)(2) provides that a
person commits third-degree assault if the person "with intent to
place another person in fear of death or serious physical injury to
the person or the person's family member makes repeated threats to
cause death or serious physical injury to another person."
We first consider whether this statute is overbroad.
Courts have consistently recognized that statutes proscribing
threats of death or physical injury are not overbroad on their face.
[Fn. 8] Here, the State has a strong and legitimate interest in
preventing a person from causing another to fear serious physical
injury or death. This interest is a main foundation for both the
third- and fourth-degree assault statutes. And this interest
substantially outweighs the potential risk that the statutory
language might, in some situations, extend to legitimate speech.
Because this balance clearly favors the State's interest in
protecting against the unjustified creation of the fear of death and
serious physical injury, we conclude that the AS 11.41.220(a)(2)
is not invalid on its face.
In Watts v. United States, [Fn. 9] the United States
Supreme Court emphasized that "[w]hat is a threat must be
distinguished from what is constitutionally protected speech" when
deciding if a facially valid statute prohibiting threats is valid
as applied to a specific case. [Fn. 10] The Supreme Court thus
imposed upon the prosecution the burden of proving a "true threat."
[Fn. 11] Although the Supreme Court did not define what constitutes
a true threat for purposes of this analysis, other courts have. For
example, in United States v. Kelner, [Fn. 12] the Second Circuit
provided as follows:
So long as the threat on its face and in the
circumstances in which it is made is so unequivocal, unconditional,
immediate and specific as to the person threatened, as to convey a
gravity of purpose and imminent prospect of execution, that statute
may properly be applied.[ [Fn. 13]]
And in Lovell v. Poway Unified School District, [Fn. 14] the Ninth
Circuit, relying in part on Kelner, expressed that the test for a
true threat is "whether a reasonable person would foresee that the
statement would be interpreted by those to whom the maker
communicates the statement as a serious expression of intent to harm
or assault." [Fn. 15]
Whether the State has proven a true threat in the first
instance is a question for the trier of fact. [Fn. 16] The State
argues that there is substantial evidence in the record to support
a conclusion that Powell's letters were true threats, and under that
standard, the superior court must be sustained. However, in both
Watts and Dennis v. United States, [Fn. 17] the Supreme Court
reviewed the legal import of the defendant's statements after the
jury found that the defendant violated the statute. As the Dennis
court held, even though the jury must first decide if the
defendant's conduct violates a criminal statute affecting speech,
reviewing courts must determine as a matter of law if the "activity
which constitutes a violation of the statute" is protected by the
First Amendment. [Fn. 18]
Powell's letters were not addressed to a particular
individual but were forwarded to Swanston, the director of the CRC.
At the time Powell wrote the letters, Powell was still months from
his potential release date. On the whole, Powell's letters do not
make detailed threats of harm against specific individuals. The
potential harm described most exactly by Powell is what his reaction
would be if he had to return to prison. "Ever been locked up? I
have and never shall be again. I may get killed, I may elude
pursuit. I may kill to escape. But I ain't having my rights read
to me again. I shall never again be imprisoned, and this may mean
that I must in the eyes of the law be shot on sight."
We have reviewed Powell's letters at length. Powell did
describe himself as troubled and angry, but he did not direct
specific threats of personal harm to Swanston or any other
identifiable individual at the CRC. Powell described his juvenile
record that included arson and asked rhetorically if the CRC had
insurance for arson. Still he did not make direct threats of
assault against identifiable individuals. [Fn. 19] We recognize
that this issue is close, but conclude that the letters are not so
"unequivocal, unconditional, immediate and specific as to the person
threatened, as to convey a gravity of purpose and imminent prospect
of execution" [Fn. 20] to allow Powell's probation to be revoked on
the basis that the letters supplied proof that Powell committed
third-degree assault.
Conclusion
The judgments of the superior court and the district court
are REVERSED.
MANNHEIMER, Judge, concurring.
I write separately to more fully explain certain aspects
of our decision: the elements of the crime of coercion, the
potential requirement that assaultive conduct be directed at the
victim, and the scope of appellate review when the alleged actus
reus of an assaultive crime consists solely of speech.
The elements of the crime of coercion: the requirement
of a "demand"
The crime of coercion is defined in AS 11.41.530(a).
According to this statute, the offense is committed if a person
compels another to engage in conduct from which
[they have] a legal right to abstain[, or to] abstain from conduct
in which [they have] a legal right to engage
if this compulsion is accomplished by
[making this other person] fear that, if the
demand is not complied with, the person who makes the demand or
[someone else] may [do one of the acts listed in subsections (1)
(6) of the statute].
This statute is based on sec. 212.5 of the Model Penal
Code.
[Fn. 1] The Model Penal Code provision differs from our statute in
that it contains only four subsections (instead of six) defining the
types of threats that one must not use to induce someone else to
engage in or refrain from conduct. (The drafters of the Model Penal
Code consciously decided not to define the crime as broadly as the
definition found in Alaska's coercion statute. [Fn. 2]) But the
same concept underlies both provisions: creating an offense that is
patterned after extortion (an attempt to obtain money or property
by means of threats), but which is considerably broader than
extortion because it applies to attempts to obtain non-pecuniary
benefits or to inflict various types of disadvantages upon another
person. [Fn. 3]
Coercion statutes based on the Model Penal Code have been
challenged on constitutional grounds in other states. The seminal
case on this issue is a decision from Oregon, State v. Robertson.
[Fn. 4] In Robertson, the Oregon Supreme Court ruled that its
coercion statute impermissibly restricted the freedom of speech
guaranteed under the Oregon Constitution. [Fn. 5] Powell asks us
to declare Alaska's coercion statute unconstitutional for much the
same reasons. But we need not decide Powell's First Amendment
challenge to the coercion statute because there was a flaw in the
State's proof: the State failed to present evidence to satisfy each
element of the crime.
AS 11.41.530(a) requires the State to prove that the
defendant addressed a "demand" to the victim a demand that the
victim do something or refrain from doing something. This element
limits the scope of the statute in a constitutionally significant
way. If the statute did not require proof that the defendant
addressed a demand to the victim i.e., if the statute merely
required proof that the defendant recklessly caused another person
to alter their conduct for fear of potential injury then drunken
or mentally unbalanced persons walking down the street might
conceivably commit the crime of coercion if, by their erratic
actions, they caused other pedestrians to cross the street to avoid
the possibility of being accosted or confronted.
In Powell's letters to the halfway house, he referred to
his past criminal conduct. Powell also spoke of his anger and
frustration at the corrections system thus suggesting that he
might not be in full control of himself and that he might engage in
assaultive or destructive behavior in the future. But Powell never
demanded that the halfway house personnel do (or refrain from doing)
anything in particular. Accordingly, even if we assume that
Powell's letters caused the halfway house personnel to reasonably
apprehend potential danger if Powell was assigned to their facility,
Powell's act of sending these letters did not constitute coercion.
The elements of third-degree assault: whether the
threatening conduct must be directed at the victim
By including a "demand" element in the definition of
coercion, the legislature avoided the problem of holding someone
criminally liable for "coercive" or "assaultive" conduct when that
conduct was not directed at anyone in particular. But other Alaska
criminal statutes conceivably raise the same problem. In
particular, as we noted in Petersen v. State [Fn. 6], Alaska's
third- and fourth-degree assault statutes could arguably be
interpreted to apply to defendants who, by their erratic or
disquieting conduct, recklessly cause other people to fear potential
injury, even though the defendants are paying no mind to these other
people. [Fn. 7] Thus, an intoxicated motorist whose driving was
noticeably erratic might conceivably commit dozens or hundreds of
acts of assault as they drove through town one count for every
person who observed the motorist's conduct and, as a result, feared
injury.
In addition to the coercion charge, Powell was also
charged with third-degree assault for writing his letters to the
halfway house. Thus, his case potentially raises this issue of
statutory interpretation. However, we need not decide this issue
because we conclude that Powell's letters did not contain a "true
threat" (a concept developed in Watts v. United States [Fn. 8] and
other cases where assaultive crimes have been challenged on First
Amendment grounds).
The permissible scope of our review of the superior
court's findings
Someone familiar with the normal division of labor between
trial and appellate courts would expect an appellate court to be
bound by a trial judge's conclusion that a defendant's words
constituted a "threat". A trial judge, to reach such a conclusion,
must evaluate the content and the context of the defendant's words
to assess (1) whether the defendant intended those words to instill
fear in the victim, or was reckless regarding this possibility, and
(2) whether a reasonable person in the victim's position would have
understood the defendant's words as a threat. These assessments
appear to be findings of fact that an appellate court must accept
unless they are clearly erroneous. [Fn. 9]
But, because of First Amendment concerns, the United
States Supreme Court has established a special standard of review
to govern cases where a defendant is charged with assault (or an
assault-like crime) based on words alone. In Dennis v. United
States [Fn. 10], the Supreme Court declared that even though a jury
must initially decide whether a defendant's words violate a criminal
statute (in Dennis, the question was whether the defendant's words
were a genuine incitement to immediate violence), it is ultimately
the reviewing court's task to decide whether, consistent with the
First Amendment, the defendant's words can be punished. [Fn. 11]
We have employed this less-deferential standard of review
in Powell's case: we have independently examined the content of
Powell's letters to see if his words constituted a "true threat".
For the reasons explained in Judge Stewart's majority opinion, we
conclude that Powell's letters did not contain a "true threat", and
thus Powell's act of sending these letters did not constitute the
crime of third-degree assault.
FOOTNOTES
Footnote 1:
AS 11.41.220(a)(2).
Footnote 2:
AS 11.41.530(a)(1).
Footnote 3:
See Andrew v. State, 835 P.2d 1251, 1256 (Alaska App. 1992).
Footnote 4:
See Conner v. State, 696 P.2d 680, 682 (Alaska App. 1985)
(citing Wien Air Alaska, Inc. v. State, Dep't of Revenue, 647 P.2d
1087 (Alaska 1982) and Francis v. Anchorage, 641 P.2d 226 (Alaska
App. 1982)).
Footnote 5:
649 P.2d 569 (Or. 1982).
Footnote 6:
See id. at 589-90.
Footnote 7:
See id at 576, 590.
Footnote 8:
See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969);
Melugin v. Hames, 38 F.3d 1478, 1484 (9th Cir. 1994); United States
v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990).
Footnote 9:
394 U.S. 705.
Footnote 10:
Id. at 707.
Footnote 11:
Id. at 708.
Footnote 12:
534 F.2d 1020 (2d. Cir. 1976).
Footnote 13:
Id. at 1027.
Footnote 14:
90 F.3d 367 (9th Cir. 1996).
Footnote 15:
Id. at 372 (quoting United States v. Orozco-Santillan, 903
F.2d 1262, 1265 (9th Cir. 1990)); see also Melugin, 38 F.3d at
1484.
Footnote 16:
See Khorrami, 895 F.2d at 1192; Melugin, 38 F.3d at 1485.
Footnote 17:
341 U.S. 494 (1951).
Footnote 18:
Id. at 513.
Footnote 19:
Cf. Petersen v. State, 930 P.2d 414, 429 (Alaska App. 1996)
(noting a wide range of threatening and assaultive behavior
directed against specific individuals and upholding the
constitutionality of the stalking statute as applied to such
behavior).
Footnote 20:
Kelner, 534 F.2d at 1027.
FOOTNOTES (Concurrence)
Footnote 1:
American Law Institute, Model Penal Code (Official Draft,
1962).
Footnote 2:
See American Law Institute, Model Penal Code and Commentaries
(1980), Part II, Comment to sec. 212.5, found in the volume
covering
sec.sec. 210.0 to 213.6 at pp. 266-67.
Footnote 3:
See id. at pp. 263-64, and the Alaska Legislature's Commentary
to the coercion statute, found in 1978 Senate Journal, Vol. 2,
Supp. No. 47 (June 12), p. 29.
Footnote 4:
649 P.2d 569 (Or. 1982).
Footnote 5:
See id. at 589-590.
Footnote 6:
930 P.2d 414 (Alaska App. 1996).
Footnote 7:
See id. at 428 n.8.
Footnote 8:
394 U.S. 705, 708; 89 S.Ct. 1399, 1401; 22 L.Ed.2d 664 (1969).
Footnote 9:
See, e.g., Wright v. Black, 856 P.2d 477, 479 & n.2 (Alaska
1993) ("Whether an estoppel exists is generally a question of fact.
[Estoppel becomes a question of law only when the facts are clearly
established.] [The trial court's] [f]indings of fact shall not be
set aside unless [they are] clearly erroneous, and due regard shall
be given to the opportunity of the trial court to judge the
credibility of the witnesses.") (citations omitted).
Footnote 10:
341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).
Footnote 11:
See id., 341 U.S. at 511-14, 71 S.Ct. at 868-870. But see
United States v. Viefhaus, 168 F.3d 392, 396-97 (10th Cir. 1999),
cert. denied, 527 U.S. 1040, 119 S.Ct. 2402, 144 L.Ed.2d 801 (1999)
("We consistently have held that whether a defendant's statement is
a true threat or mere political speech is a question for the jury.
... [Only if] there is no question that a defendant's speech is
protected by the First Amendment [can] the court ... dismiss the
charge as a matter of law.").
