Carrell v. United States

• Decision Date: 03 August 2017
• Docket Number: No. 12–CM–523,12–CM–523
• Parties: Lee CARRELL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

165 A.3d 314

Lee CARRELL, Appellant,

v.UNITED STATES, Appellee.

No. 12–CM–523

District of Columbia Court of Appeals.

Argued En Banc January 26, 2016

Decided August 3, 2017

Fletcher P. Thompson for appellant.

John P. Mannarino, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Assistant United States Attorney, were on the brief, for appellee.

Shilpa S. Satoskar, with whom Samia Fam and Jaclyn S. Frankfurt were on the brief, for Public Defender Service, amicus curiae, in support of appellant.

Joan S. Meier, Bruce A. Ericson (admitted pro hac vice), Christine Scheuneman (admitted pro hac vice), Julia E. Judish, Kristen Baker, and Stephen Asay were on the brief for amici curiae Domestic Violence Legal Empowerment and Appeals Project, D.C. Coalition Against Domestic Violence, D.C. Volunteer Lawyers Project, National Network to End Domestic Violence, and Network for Victim Recovery of D.C., in support of appellee.

Before Blackburne–Rigsby, Chief Judge; Glickman, Fisher, Thompson, Beckwith, and Easterly, Associate Judges; and Washington, Senior Judge.^*

Opinion for the court by Associate Judge Easterly.

Opinion by Associate Judge Thompson, concurring in part and dissenting in part, at page 33.

Easterly, Associate Judge:

We return to this case, sitting en banc, to determine what, if anything, the government must prove vis-à -vis a defendant's mens rea, or state of mind, in order to obtain a conviction for threats (misdemeanor or felony).¹ Our threats statutes do not give us much guidance; neither expressly includes a requisite culpable mental state. And in the wake of this statutory silence, we developed two strands of case law: one indicating that the government had an obligation to prove the defendant "intended" to utter the words as a threat, and the other indicating that it did not. A division of this court considered the split in our precedent and resolved that the latter branch of our case law was binding precedent. See Carrell v. United States , 80 A.3d 163, 170–71 (D.C. 2013). We now hold that the government must prove the defendant's mens rea to utter the words as a threat, and that it may do so by establishing that the defendant acted with the purpose to threaten or with knowledge that his words would be perceived as a threat.

I. Facts and Procedural History

Lee Charles Carrell was charged with one count of assault and one count of attempted threats; he pled not guilty and received a bench trial. To prove its case, the government relied primarily on the testimony of the complainant, Mr. Carrell's ex-girlfriend at the time of trial. (On the date of the alleged incident, the two were in the process of ending their relationship but were still living together.) The complainant testified that Mr. Carrell returned home in the early morning hours. They argued. Eventually, "it just subdued," and they went to bed in different rooms. The following morning, however, they resumed fighting. The complainant testified that, in the midst of their argument, Mr. Carrell grabbed her, put both of his hands around her neck "with pressure,"² and pushed her against the bedroom window. While doing so, Mr. Carrell yelled at her, "I could fucking kill you, I could kill you, I could kill you right now if I wanted to." The complainant testified that she thought he was going to kill her. After some period of time, perhaps as long as a minute, Mr. Carrell let the complainant go. But after the complainant told Mr. Carrell that he was "sick" and "needed help," he attacked her again, this time pushing her to the ground, pinning her arms against her sides and putting his hands over her nose and mouth. The complainant testified that, eventually, she was able to get free and called 911.

Mr. Carrell testified in his own defense and disputed the complainant's account of this incident.³ He denied being physically violent with the complainant or saying to her, "I could fucking kill you right now if I wanted to."⁴ He testified that the complainant had initiated the argument with him that morning; that when he "refused to pay attention to her," she grabbed him and kicked him; and that he only engaged with her to get away. He testified that she then accused him of hurting her, threatened him with arrest and the loss of custody of his daughter, and called 911. He had waited for the police to arrive because he "had nothing to hide" and "wanted to tell his side of the story." On cross-examination, he admitted that he had, during previous arguments with the complainant, thrown and torn pages out of books, pulled a chandelier partially out of the ceiling, and broken a vase, a cabinet door, and the French doors in the apartment.

After instructing herself as to the elements of each offense charged,⁵ the trial judge rendered her verdict. The court credited the complainant's testimony "in its entirety," discredited Mr. Carrell's testimony, and found Mr. Carrell guilty of assault and attempted threats. As to the latter charge, the court determined that the government had to prove beyond a reasonable doubt "that Mr. Carrell spoke words or otherwise communicated to the complaining witness words [that] would cause a person reasonably to believe that he or she would be ... harmed^{[6 ]} if the event occurred" and "that he intended to utter the words which constituted the threat." The court did not acknowledge any obligation to determine whether Mr. Carrell in fact intended to threaten the complainant,⁷ and it noted that his subsequent apology to the complainant was "an indicia that Mr. Carrell reacted under these circumstances understandably frustrated ... that [the complainant] could not control herself orally in terms of her argument and the timing of it." The court determined that the government had met its burden by proving that Mr. Carrell "utter[ed] words to [the complainant] in his anger," specifically "I could kill you, I could kill you. I could fucking kill you right now."

Mr. Carrell challenged his attempted threats conviction on sufficiency grounds, arguing that the trial court "fail[ed] to make a finding as to his intent when he uttered the words which [the trial court] found constituted a crime." A division of this court acknowledged a split of authority in our case law regarding the government's obligation to prove a defendant's "intent" to threaten, but determined that, per M.A.P. v. Ryan , 285 A.2d 310 (D.C. 1971), the line of cases eschewing such a mens rea element was controlling. Carrell , 80 A.3d at 169–70. Over a dissent from Judge Schwelb, id. at 171–77, a division of this court affirmed, id. at 171. Mr. Carrell then filed a petition for en banc review, which the full court granted. Carrell v. United States , No. 12-CM-523, 2015 WL 5725539 (D.C. June 15, 2015) (per curiam order).

II. The Law of Threats

We are confronted with a question of statutory interpretation: How should we read the District of Columbia's threats statutes, neither of which defines the elements of the crime, much less addresses what, if any, mens rea the government must prove as to each element? The misdemeanor threats statute, D.C. Code § 22–407, dating back to 1912,⁸ contains no description of the crime at all; it merely sets the penalty:

Whoever is convicted in the District of threats to do bodily harm shall be fined not more than the amount set forth in § 22–3571.01 or imprisoned not more than 6 months, or both, and, in addition thereto, or in lieu thereof, may be required to give bond to keep the peace for a period not exceeding 1 year.

The felony threats statute, D.C. Code § 22–1810, passed in 1968⁹ and patterned on a federal statute, 18 U.S.C. § 875 (c) (1994),¹⁰ is similarly vague about what exactly the government must prove to obtain a conviction. It states:

Whoever threatens within the District of Columbia to kidnap any person or to injure the person of another or physically damage the property of any person or of another person, in whole or in part, shall be fined not more than the amount set forth in § 22–3571.01 or imprisoned not more than 20 years, or both.

The "phrasing" of these statutes is "hardly ideal."¹¹ United States v. Baish , 460 A.2d 38, 41 (D.C. 1983). But over the years this court has addressed any vagueness concerns by carving out a defined actus reus, i.e., the act made punishable by this crime.¹² Specifically, we have said that, in order to obtain a conviction, the government must prove a conduct element and a result element¹³ : that the defendant (1) "uttered words^{[14 ]} to another person" (2) with a result that "the ordinary hearer [would] reasonably ... believe that the threatened harm would take place." In re S.W. , 45 A.3d 151, 155 (D.C. 2012) ; see also Clark (Harold ) v. United States , 755 A.2d 1026, 1030 (D.C. 2000) (acknowledging these two actus reus elements); Baish , 460 A.2d at 42 (same); Postell v. United States , 282 A.2d 551, 553 (D.C. 1971) (same).

This leaves the question of the requisite mens rea for the crime of threats—what courts have often, imprecisely, referred to as the question of "intent." The Supreme Court recently considered in Elonis v. United States , ––– U.S. ––––, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), what proof of mental state the federal threats statute, 18 U.S.C. § 875 (c), requires. Relying on basic principles of statutory construction in the criminal law context, the Court determined that the federal threats statute—also silent on the subject of mens rea—necessitates proof of mens rea with respect to both its conduct and result elements, and endorsed purpose or knowledge for the latter. Elonis , 135 S.Ct. at 2011–12. We hew to the three pillars of the Supreme Court's reasoning and reach the same conclusion.

First, the Court reaffirmed that " ‘mere omission from a criminal enactment of any mention of criminal intent’ should not be read as ‘dispensing with it.’ " 135 S.Ct. at 2009 (quoting Morissette v. United States , 342 U.S. 246, 250, 72 S.Ct. 240, 96 L.Ed. 288 (19...