Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/26/2021
E.g., 09/26/2021

The victim in this case was the elected district attorney for the county, and the defendant was an acquaintance who worked in an office building next to the courthouse. After learning that the district attorney would not be pursuing criminal charges in a matter involving the death of a child, the defendant made a series of posts on Facebook. Some of the posts broadly addressed the defendant’s general anger and frustration with politics and the judicial system as a whole, while other posts more specifically referenced the district attorney in particular, using phrases such as “death to her as well” or calling for “old time mtn [mountain] justice,” and implied his willingness to use firearms against law enforcement if they came to his house in response to the posts. The defendant deleted the posts later the same evening, but a detective who was a Facebook friend of the defendant took screenshots of the posts before they were removed. After bringing in the SBI to investigate and interviewing the defendant about the posts, the defendant was charged with threatening a court officer under G.S. 14-16.7(a). Following a jury trial, the defendant was convicted and appealed.

At trial, the defendant raised a First Amendment challenge, arguing that anti-threat statutes such as G.S. 14-16.7 must be construed as constitutionally requiring proof of a “true threat,” meaning that the communication shows a serious intent to cause harm to the victim, and further arguing that the trial court should not admit the five posts offered by the state while excluding other posts and comments that would have provided relevant context and explanation. On appeal, the defense argued that the trial court erred by: (i) denying the defendant’s motion to dismiss at the close of evidence based on the state’s failure to prove the alleged threats were true threats; and (ii) failing to properly instruct the jury on the law and requirements of a true threat.

Ruling as a matter of first impression, the Court of Appeals found in favor of the defendant and reversed the conviction. The appellate court’s decision contains an exhaustive review of case law from North Carolina and other jurisdictions on the First Amendment’s application to anti-threat statutes and other forms of protected speech, but it relies most extensively on Watts v. United States, 394 U.S. 705 (1969), Virginia v. Black, 538 U.S. 343 (2003), and their progeny. Based on those cases, the appellate court agreed that laws which criminalize speech must be construed in accordance with the First Amendment; here, that means a threat cognizable under the statute must be a “true threat” as defined by Black: “under the First Amendment the State can punish threatening expression, but only if 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.’” To clarify its holding and provide guidance in future cases, the court made six supplemental holdings that were not yet fully addressed by the North Carolina case law.

First, when reviewing a conviction under an anti-threat statute, the appellate court will engage in a “whole record” review. Whenever a defendant’s conviction is based in part on a determination that the state met its burden of proving a true threat, the appellate court will conduct an independent review of the entire record to determine the sufficiency of the evidence and whether the defendant’s First Amendment rights were preserved.

Second, establishing that an alleged threat was a “true threat” must be treated as an essential element of the offense to be proved by the state. At trial in this case, the state relied heavily on the fact that the underlying statute and pattern jury instructions only used the single word “threat,” without further qualification. The appellate court’s holding on this point acknowledged that fact, but explained that in order to comport with the First Amendment, “‘true threat’ must be incorporated into the definition of N.C.G.S. § 14-16.7(a) if the statute is to be held constitutional” (emphasis in original).

Third, the “intent” to communicate a true threat is also deemed an essential element of the offense. A statement is only a true threat if it was made intentionally, meaning that it was made with both the general intent to make the threatening statement (considered “from the viewpoint of an objective, reasonable person considering the alleged threat in full context”) and specific intent (i.e., a subjective intent to truly threaten). This does not require proof that the defendant actually intended to carry out the threatened act, but he must have intended that it would be received as a true threat by him to do so.

Fourth, deciding on appeal whether a statement was a true threat is a mixed question of fact and law. Therefore, proving a true threat will usually be a matter for the jury (or judge acting as trier of fact) to decide initially, but as noted above the appellate courts will conduct a “de novo whole record review” on appeal, even if the jury was properly instructed on the law and there is some evidence in the record to support its finding.

Fifth, noting that many types of protected speech may be unpopular, crude, or even aggressive, a “true threat” is defined in accordance with Black as only those statements where “the speaker intends to communicate, to a particular individual or group of individuals, a threat, being ‘a serious expression of an intent to commit an act of unlawful violence[.]’” This definition incorporates the intent requirements adopted above, meaning that the defendant had the “subjective intent to threaten a person or group of persons by communicating the alleged threat.” But deciding whether a statement was a true threat must also be evaluated objectively, based on the “context in which the communication was made; i.e., all the facts surrounding the communication of the challenged speech.” In other words, finding a statement to be a true threat requires both a subjective and an objective determination: (i) the defendant subjectively intended the statement to be understood as a true threat; and (ii) the people hearing or reading it would objectively understand it, in context, as a serious expression of intent to kill or injure the person or group identified.

Sixth, applying the preceding analyses to the particular statute at issue, the court identified and summarized the seven essential elements of the offense as follows:

In order to obtain a constitutional conviction for threatening a court officer pursuant to N.C.G.S. § 14-16.7(a), the State must prove, beyond a reasonable doubt, that: (1) the defendant; (2) knowingly and willfully; (3) made a threat; (4) constituting a “true threat,” meaning a statement “that an ordinary, reasonable [person] who is familiar with the context in which the statement [wa]s made would interpret as a serious expression of an intent to do harm”; (5) to a court official; (6) knowing the court official was a court official; and (7) when the defendant communicated the statement, the defendant specifically intended the statement to be understood by the court officer as a real threat expressing the defendant’s intention to carry out the actions threatened.

Additionally, since proving a true threat is an essential element of the offense, failure to properly instruct the jury on these issues violates the defendant’s First, Sixth, and Fourteenth Amendment rights. That error is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.

Finally, turning back to the case at hand, the court conducted an independent whole case review to decide whether the statements made by this defendant were true threats, whether the defendant had the subjective intent that they reach the recipient and cause her to believe that he intended to kill her, and whether they would be understood as threats by an objectively reasonable person.

Looking first at the plain language of the posts, although some of them did contain aggressive statements such as “death to her as well” and “she will be first to go,” the court concluded that they were also vague or contingent on the occurrence of unlikely events (such as a revolution), and “there were no specifics such as time, manner, place, ability, preparation, or other facts that might allow a reasonable person to read Defendant’s words as a ‘true threat’ to kill D.A. Welch.” As a result, none of the posts offered by the state rose to the level of constituting a true threat.

The court then evaluated the statements in context, considering other factors such as the defendant’s reference (and apparent access) to firearms, his close proximity and ability to reach the purported victim, and the initial concern of the detective who saw the posts indicating that she viewed the threat as real. However, other evidence indicated that neither the victim nor law enforcement perceived the statements as true threats, such as the detective’s somewhat delayed response to the posts, the purported victim’s belief that additional security was unnecessary, the fact that officers did not further investigate the defendant’s ability to carry out the alleged threats, a history of “polite and non-threatening” interactions between the parties, and the broad nature of other comments directed at the judicial system as a whole.

As part of its whole case review, the appellate court also considered the hyperbolic nature of many posts on “public forums” like Facebook, the political context of the defendant’s related comments about the judicial system, the lack of specificity to any alleged threats, the reactions of others who saw the posts, and the defendant’s explanation for the posts. In sum, the court found that as a matter of law the defendant’s posts did not rise to the level of being a “true threat” in this case, and the evidence did not support a finding that the defendant’s intent in posting the comments was to make the purported victim believe he actually intended to kill her. Consistent with the holdings above, the appellate court found that the trial court erred by failing to instruct the jury on the constitutionally required elements of a “true threat” and state’s burden to prove the defendant’s intent, and further found that the error was not harmless beyond a reasonable doubt in this case, given the erroneous law and arguments presented to the jury.

Based on its whole record review (or, in the alternative, based on the regular standard of appellate review as well as the trial court’s failure to properly instruct the jury), the defendant’s conviction was reversed and the case was remanded for entry of judgment of acquittal. The court then reiterated and summarized the essential elements of the offense, the state’s burden of proof, and the jury instructions required for a constitutionally valid conviction under the statute.

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