State v. Trey M.

186 Wash.2d 884

383 P.3d 474

State of Washington, Respondent,

v.Trey M., Appellant.

No. 92593–3

Supreme Court of Washington, En Banc.

Argued May 5, 2016

Filed Oct. 27, 2016

Lila Jane Silverstein, Washington Appellate Project, 1511 3rd Ave., Ste. 701, Seattle, WA, 98101–3647, Trey Jordan Michel (Appearing Pro Se), 6971 Sr. 410, Naches, WA, 98937, for Appellant.

Joseph Anthony Brusic, Tamara Ann Hanlon, David Brian Trefry, Yakima County Prosecutor's Office, 128 N. 2nd St., Rm. 329, Yakima, WA, 98901–2621, for Respondent.

Venkat Balasubramani, Focal PLLC, 900 1st Avenue S., Suite 203, Seattle, WA, 98134–1236, La Rond Baker, ACLU of Washington, 901 5th Ave., Ste. 630, Seattle, WA, 98164–2086, as Amicus Curiae on behalf of ACLU of Washington Foundation.

MADSEN, C.J.

¶1 Juvenile defendant Trey M. seeks reversal of his three convictions for felony harassment under RCW 9A.46.020 (discussed below). The primary issue, as certified from Court of Appeals, Division Three, to this court, is whether the Supreme Court's decision in Elonis v. United States , ––– U.S. ––––, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), has any impact on this court's objective test (i.e., reasonable person standard) for what constitutes a “true threat” under the First Amendment to the United States Constitution. We hold that because Elonis expressly avoids any First Amendment analysis, it provides no basis for this court to abandon its established First Amendment precedent.¹ We affirm.

FACTS

¶2 Trey was a high school student at Naches Valley High School at the time of the incident that led to his arrest. At that time, Trey was in counseling with Mark Heeringa, addressing issues stemming from Trey's early childhood history of abuse and neglect. Trey had been in counseling since he was five years old, and had received regularly scheduled counseling from Heeringa for the past two years. During a counseling session on October 7, 2014, Trey was upset because three boys had teased him at school. Trey told Heeringa that he thought about taking a gun to school and shooting the boys. He also said he wanted to kill them and for them to know the pain that he felt. He described a specific plan to shoot the three boys and then himself. First, he would get a gun from his grandfather's gun safe and shoot one boy at the boy's house before school. He would then go to the school and shoot the other two boys and end by shooting himself. He told his counselor that if he couldn't get access to firearms, he would use bombs against the boys.

¶3 Heeringa noticed a change in Trey's mood and demeanor as he made these statements. Specifically, Heeringa testified that Trey was angry, gesturing, short in his speech, and raising his voice at the time. Heeringa asked Trey, “ ‘[D]oesn't this seem wrong?’ ” 1 Report of Proceedings (RP) (Dec. 8, 2014) at 20. Trey replied, “ ‘Who can say?’ ” Id. Heeringa took the threats seriously and contacted law enforcement.

¶4 At trial, Heeringa testified that this was not the first time Trey had threatened to kill someone, explaining that Trey had previously talked about killing others, including Trey's grandfather. Trey had also previously talked about committing suicide and had described various ways he would kill himself.

¶5 Deputy William Boyer of the Yakima County Sheriff's Office met with Trey and asked him to explain what he said and what he would do. Deputy Boyer described his conversation with Trey as follows:

He told me that he had talked to his counselor and told his counselor that he had thought about and was thinking about killing other students at the Naches [high] school. And so I asked him how he would go about doing that. He indicated to me that he would either find the key to the gun cabinet or he would use an ax and break the door open to the gun cabinet. It's not a gun cabinet, but it's a closet where the guns are kept locked up.

He would then take the 9 millimeter pistol of his grandpa's, and he would go to his friend's house who lives in the near area and kill him first. He would then ride the bus into ... Naches [high school] like normal. He would then wait at school until the other students were at lunch or everyone was in the cafeteria because that's when the—there would be the gathering of the individuals he wanted to shoot, at which point he said that he would shoot them and then he would shoot himself.

Id. at 54. Deputy Boyer testified that Trey said all of this methodically and without emotion. Trey explained to the deputy that he would use a 9 mm pistol because he could conceal it. Trey also confessed to making 15 or 16 small bombs.

¶6 Another sheriff's officer, Detective Sergeant Mike Russell, contacted the principal of Naches Valley High School, Richard Rouleau. Principal Rouleau confirmed a report that Trey was being harassed or bullied at school. Trey had also recently been suspended from school and was upset over the suspension.

¶7 The State charged Trey with three counts of felony harassment² in violation of RCW 9A.46.020(1)(a)(i), (b), (2)(b). Victim E.D. testified at trial, stating that when he learned of Trey's “hit list,” he was really scared at first. RP at 87, 91. He testified that he was scared that his life could have been taken. He felt relieved after he learned that Trey was in custody. At the time of trial, he testified that he was still a little scared but “relieved that [Trey]'s in custody.” Id. at 90.

¶8 Another victim, W.B., testified that after learning he was on Trey's “hit list,” he was scared and really shaking. Id. at 97, 105–07. He told his dad he “was threatened” and that he was scared. Id. at 106. At trial, he testified that he was still a little scared. He also testified that he knew Trey had talked about harming himself before and had even made a noose at one point.

¶9 The third victim, G.C., testified that he got a text from his friend, W.B., telling him about the “hit list.” Id. at 118, 120. G.C. said that he was “scared” and “freaked out” at first. Id. at 120. G.C. was at home sick at the time. G.C. thought that if he had been at school, the plan might have been carried through. He testified that made him scared and frightened.

¶10 Trey was convicted of three counts of felony harassment and appealed these convictions.

¶11 Trey filed an opening brief in Division Three, seeking reversal of his convictions and dismissal of all charges and arguing that (1) the State presented insufficient evidence to prove felony harassment under RCW 9A.46.020 and (2) his convictions violated the First Amendment because they were not true threats under either the reasonable speaker standard articulated in State v. Kilburn , 151 Wash.2d 36, 84 P.3d 1215 (2004), or the subjective intent standard addressed in Virginia v. Black , 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). The State responded, contending that the evidence was sufficient, that Washington's objective true threat test was met, and that Black is distinguishable.

¶12 In the meantime, the Supreme Court issued its decision in Elonis, interpreting the federal crime of transmitting in interstate commerce “ ‘any communication containing any threat ... to injure the person of another.’ ” 135 S.Ct. at 2008 (quoting 18 U.S.C. § 875(c) ). The Court reversed defendant's convictions, holding that conviction under the federal statute would require a showing that defendant intended to issue threats or knew that his communications would be viewed as threats. Id. at 2012.

¶13 Trey filed a reply brief adding citation to Elonis, contending that case is “persuasive authority” for the proposition that Trey's convictions are invalid. Reply Br. of Appellant at 20. Amicus American Civil Liberties Union of Washington (ACLU) also filed a brief, asserting that Washington's objective reasonable speaker test is inconsistent with Elonis.

¶14 The Division Three chief judge issued an order of certification transferring the case to this court to determine the issue of “whether ... Elonis v. United States , ––– U.S. ––––, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), requires Washington to change its construction of the harassment statute from an objective person standard to a subjective intent standard.” Order of Certification, State v. Trey M., No. 32981–0–III (Wash. Ct. App. Dec. 7, 2015). This court's commissioner issued a ruling that accepted certification, transferred the case to this court for determination on the merits, and directed the parties to file “a supplemental brief addressing the issue identified in the order of certification regarding the impact, if any, of Elonis v. United States , ––– U.S. ––––, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), on this court's precedent adopting an objective test for what constitutes a ‘true threat’ that is not protected speech.” Ruling Accepting Certification, State v. Trey M. , No. 92593–3 (Wash. Dec. 16, 2015). The parties and amicus ACLU filed supplemental briefs. We now address the certified question and Trey's challenges to his convictions.

ANALYSIS

(1) We decline to abandon this court's precedent applying an objective test for what constitutes a true threat under the First Amendment³

¶15 Appellant was convicted on three counts of felony harassment (threat to kill) under RCW 9A.46.020(1)(a)(i) and (b)⁴ Because the certified question—which concerns appropriate standards for true threats under the First Amendment—will affect how the harassment statute is applied, we address that issue first.

¶16 Appellant and amicus ACLU ask this court to overrule State v. Williams , 144 Wash.2d 197, 207–08, 26 P.3d 890 (2001), which adopted our state's objective (reasonable person) test for what constitutes a true threat, and hold instead that Washington's true threat test requires subjective intent to threaten. Amicus contends that by doing so, this court would make our state law “consistent with” Black and Elonis. Br. of Amicus Curiae ACLU at 1. Appellant echoes these contentions, asserting that Black is “binding authority” that “compels a subjective-intent...