DCCA En Banc: Mens Rea for Threats Requires Purpose or Knowledge that Words Will Be Construed as a Threat, Maybe Recklessness

Carrell v. United States (decided August 3, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judges Glickman, Fisher, Thompson, Beckwith, and Easterly, and Senior Judge Washington. Opinion for the court by Judge Easterly. Partial concurrence/dissent by Judge Thompson. Fletcher P. Thompson for Mr. Carrell. PDS as amicus. Trial Judge: Heidi M. Pasichow

Facts: As we previously summarized in noting the Division opinion:

The complainant testified that Mr. Carrell said to her, “I wish you would die,” and told her that if she called any of her family or friends for help, he would kill them. He later yelled, “I could kill you right now, I could fucking kill you” with both hands around her throat while pushing her against a window. The trial court credited the complainant’s testimony and found Carrell guilty. To find Carrell guilty, the judge said the law required Carrell to have “an intent to utter the words which constituted a threat.” She found such intent and convicted him of attempted threats.

Issue: What mens rea must the government prove in order to obtain a conviction for misdemeanor or felony threats?

Holding: The government must prove the defendant’s mens rea to utter the words as a threat, and may do so by establishing the defendant acted with the purpose to threaten or with knowledge that his words would be perceived as a threat.

On granting rehearing, the Court asked the parties to brief Elonis v. United States, 135 S.Ct. 2001 (2015), which held that the federal threats statute requires a finding of mens rea as to both the conduct and the result elements of the statute. Adopting the Court’s reasoning in Elonis, the DCCA “reach[ed] the same conclusion.” To sustain a threats conviction, the en banc court held, “more is required than a showing that a reasonable person would have understood the defendant’s words as a threat or that a defendant should have known that that would be the case.”

The Court did not decide whether a lower-threshold mens rea of recklessness would suffice. The U.S. Attorney’s office had stated that it doesn’t intend to prosecute future threats cases on a recklessness theory.

The Court went on to find that, although there was legally sufficient evidence to support a finding that Mr. Carrell intended to threaten, the trial judge had failed to make a finding on that element, the error was not harmless beyond a reasonable doubt, and thus the case was remanded to the trial court to make the necessary mens rea finding in determining whether Carrell is guilty.

The partial concurrence/dissent: Judge Thompson said she agreed that a threats conviction “requires more than evidence that the defendant intended to utter the words that constitute the threat,” and that she agrees with the majority’s position on the mens rea required for the crime. But she said the opinion doesn’t go far enough, and — citing Justice Alito’s “eloquent[]” concurrence and dissent in Elonis — said the Court should have concluded that a finding of recklessness is enough to satisfy the mens rea element, at least for the misdemeanor threats statute, if not the felony threats statute.

Of Note:

• The Court endorses the Model Penal Code's gradations of intent (purpose, knowledge, recklessness, negligence) over the vague concepts of general and specific intent.
• The Court held that Carrell had preserved the intent issue raised on appeal, although he did expressly raise it at trial. "A 'full range of challenges' to the sufficiency of the evidence are automatically preserved at a bench trial by a defendant‘s plea of not guilty."

LT

Read the full opinion here.

A handcuffed arrestee's statement that he would "fuck up" police if they were not police cannot be taken as a threat

Milon C. High, Jr.  v. United States (decided December 24, 2015)

Players:  Judges Fisher and Easterly, and Senior Judge Ruiz.  Opinion by Judge Ruiz.  Paul J. Riley for Mr. High.

Facts:  As Mr. High sat handcuffed on a curb, surrounded by three or four police officers, he "glared" at one officer and said, "take that gun and badge off and I'll fuck you up."  He then made a second statement, "something to the effect of, too bad it's not like the old days where fucking up an officer is a misdemeanor."  For making these statements, Mr. High was convicted of attempted threats.

Issue:  Was there sufficient evidence that the statements would cause an ordinary hearer to believe that the threatened harm would occur?

Holding:  No.  The statements "are most aptly described as an expression of exasperation or resignation over the fact that appellant had just been arrested by police officers."  On their face, the statements expressed only that if the officer was someone other than a police officer, or if  the penalties for assaulting an officer were not so severe, then Mr. High might want to "fuck up" the officer.  In other words, Mr. High was expressing his displeasure with the way he was being treated, but he did so by stating the reasons why he would not assault the officer despite Mr. High's desire to do so.  The context of the statements confirms they were not threatening:  Mr. High was handcuffed, surrounded by three or four police officers, and spoke in a "conversational tone."  There was also no suggestion that the officer at whom the statements were directed felt threatened.  DG

Read full opinion here.

Police interrogation tactics threatening prison rape and requiring a confession before granting access to an attorney render confession involuntary

 Jalonte Little v. United States (decided November 12, 2015).

Players:  Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge Belson.  Opinion by Judge Beckwith.  Debra Soltis and Paul Kiyonaga for Mr. Little.  Trial Judge: Ronna L. Beck.

Facts: Police arrested eighteen-year-old Jalonta Little in connection with an attempted carjacking and brought him to the stationhouse for questioning.  Detective Joe Crespo read Mr. Little his rights, which Mr. Little voluntarily waived.  For the next two hours, Det. Crespo used a number of coercive interrogation tactics in an attempt to elicit a confession from Mr. Little.  He falsely told Mr. Little that several witnesses identified him as the perpetrator, falsely told Mr. Little that police recovered his fingerprints from the vehicle, and offered illusory promises of leniency if the eighteen-year-old confessed to the crime.  Mr. Little steadfastly denied involvement.  Det. Crespo upped the pressure, informing Mr. Little that he risked sexual assault should he go to prison, that he would be incarcerated in a faraway prison while his girlfriend forgot about him and moved on to someone new, and that his son would never visit him.  Still, Mr. Little did not confess.  Det. Crespo had one last trick up his sleeve.  He told Mr. Little that he would arrange a meeting with his at-this-point hypothetical attorney before seeking an arrest warrant, to which Mr. Little asked, “So where my attorney at?”  Crespo responded that Mr. Little would not see an attorney until after arraignment, and before he could set up the meeting Mr. Little had to tell him what happened—he had “to have some meat to put on the table.”  Mr. Little confessed two minutes later.

Issue: Was Mr. Little’s confession voluntary?

Holding:  Looking at the totality of the circumstances, the Court determined it was not.  Two aspects of the interrogation stood out as “most coercive.”  First, the Court found Det. Crespo’s comments urging Mr. Little to confess in order to avoid sexual assault in prison “offensive to a civilized system of justice.”  The comments were similar to those that rendered a confession involuntary in Arizona v. Fulminate, 499 U.S. 279, 287 (1991) (where police told Mr. Fulminate they would protect him from fellow inmates only if he confessed).  Second, the Court found that Det. Crespo’s comments to Mr. Little that he would not have access to an attorney until after arraignment and that he had to “put some meat on the table,” i.e. confess, before an attorney would be provided were “unquestionably coercive.”  At that point, “any assumption of continued voluntariness that stemmed from Mr. Little’s signing of the Miranda rights form faded.”  These two tactics, coupled with the other coercive tactics employed by the police, such as lying to Mr. Little about the evidence against him and threatening prosecution for crimes they openly thought he did not commit, proved Mr. Little’s confession involuntary. 

Of Note: 

• In footnote 9, the Court notes that it need not decide whether Mr. Little’s question, “So where my attorney at?” was an invocation of his right to counsel.  The Court did note, however, that this statement “conveyed essentially the same message as the statement the Supreme Court assumed was an invocation of rights in Edwards v. Arizona, 451 U.S. 477, 479 (1981).” 

• In footnote 16, the Court held that while the harmless error rule applies to erroneously admitted confessions, “a confession is like no other evidence” and “the risk that the coerced confession is unreliable, coupled with the profound impact that the confession has on the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.”  Thus, the government “sensibly” did not argue that the admission of the involuntary confession was harmless.  DH

Read full opinion here.