State v. Perkins, 99-1924-CR.

Citation2001 WI 46,243 Wis.2d 141,626 N.W.2d 762
Decision Date16 May 2001
Docket NumberNo. 99-1924-CR.,99-1924-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Murle E. PERKINS, III, Defendant-Appellant-Petitioner.
CourtUnited States State Supreme Court of Wisconsin

For the defendant-appellant-petitioner there were briefs and oral argument by William E. Schmaal, assistant state public defender.

For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is a review of a published decision of the court of appeals, State v. Murle E. Perkins, III, 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25, affirming an order of the Circuit Court for Jackson County, Michael McAlpine, Circuit Court Judge. The circuit court order denied the motion of the defendant, Murle E. Perkins III, for postconviction relief from a conviction for threatening a judge in violation of Wis. Stat. § 940.203(2) (1997-98).1

¶ 2. The question of law presented in this case is whether a new trial should be granted because the jury instruction relating to the crime of threatening a judge failed to shield the defendant from a conviction based on constitutionally protected speech.2 We conclude that the jury instruction in this case was inadequate. The real controversy in this case has not been fully tried and the defendant is entitled to a new trial. We therefore reverse the decision of the court of appeals and remand the cause for further proceedings not inconsistent with this opinion.

I

¶ 3. The facts of this case, although somewhat conflicting, are set forth below. On March 25, 1998, after spending the afternoon in a bar, the defendant called his sister-in-law, Peggy Perkins, to ask for a ride home. Ms. Perkins testified that the defendant was intoxicated and depressed because he had recently broken up with his girl friend and he missed his children. Ms. Perkins drove the defendant to the residence of his parents, who were out of town. Ms. Perkins then returned to her nearby home.

¶ 4. A few hours later, Ms. Perkins heard a loud bang that sounded like a gunshot coming from the parents' residence. She called the defendant to see if he was all right, and he laughed and told her, "I haven't killed myself yet." She then visited the defendant and found him calm, but still intoxicated and depressed. The defendant told her that he would call the police before killing himself so that the police could remove his body before his parents arrived home.

¶ 5. Additional testimony from friends of the defendant established that he had called at least one friend that evening to say good-bye. One of these friends contacted the police, who visited the parents' residence, where they found the defendant and his sister-in-law.

¶ 6. One of the police officers testified at trial regarding his ensuing thirty-minute conversation with the defendant. During the course of this conversation, the defendant appeared to him to be intoxicated and depressed, but calm. According to the officer, the defendant stated that he had fired a gun that evening in the hopes that someone would come to talk to him. The defendant said he was thinking about killing himself, but that he did not have a specific plan. The officer asked the defendant what he would use if he were going to kill himself; the defendant grinned and said that he would use a shoestring. Later in the conversation, the defendant stated that if he were going to kill himself, it would be easy, and gestured toward a gun cabinet belonging to his parents.

¶ 7. The officer continued to question the defendant, and the defendant eventually stated that if he were going to kill himself, he would first kill Judge Robert W. Radcliffe, whom he referred to as a "braindead son-of-a-bitch." It was established at trial that Judge Radcliffe had recently held a contempt hearing in which the defendant had been ordered to pay $50,000 in overdue child support.

¶ 8. According to the testimony at trial, the conversation between the officer and the defendant continued calmly for several more minutes, when the officer decided to take the defendant to a hospital under an emergency chapter 51 detention. The officer believed that the defendant "was possibly a danger to himself and possibly others."

¶ 9. The defendant was later charged with one count of threatening a judge in violation of Wis. Stat. § 940.203(2).3 At trial, the defendant's mother testified that the defendant did not have access to the guns in the locked gun cabinet. The defendant testified that he had not shot a gun that evening, but rather had set off a large firecracker. The defendant also testified that his statement regarding Judge Radcliffe was intended as a hypothetical to show that he had no intention of killing himself. The defendant denied that he had intended to threaten or harm Judge Radcliffe.

¶ 10. At the close of the evidence, the jury instructions included an instruction in accordance with Wisconsin Jury Instructions—Criminal 1240, Battery or Threat to a Judge, § 940.203. The defendant did not object to this instruction. The jury returned a verdict of guilty on the count of intentional threat to a judge. The defendant filed a motion for postconviction relief, which the circuit court denied. The court of appeals affirmed the order of the circuit court.

II

¶ 11. The State argues that the defendant has waived the right to seek review of any error in the jury instructions because the defendant failed to object to the jury instructions at trial. Wisconsin Stat. § 805.13(3) provides that "[f]ailure to object at the conference [about jury instructions] constitutes a waiver of any error in the proposed instructions or verdict."4

[1]

¶ 12. We agree with the State that the defendant has waived his right of review of any allegedly erroneous jury instruction. Nevertheless, this court may reverse a conviction based on a jury instruction regardless of whether an objection was made, when the instruction obfuscates the real issue or arguably caused the real controversy not to be fully tried. Reversal is available under Wis. Stat. § 751.06 at the discretion of this court.5

[2]

¶ 13. Along with this statutory authority to reverse a judgment on the basis of a waived error, this court has the inherent authority to review a waived error. In previous cases addressing this inherent authority to review a waived error, we have noted that this court "undoubtedly has the power, but ordinarily will not exercise it. The question is one of administration, not of power."6 When we review an alleged error under our inherent authority, "We do so because the alleged error in issue has some substantial significance in our institutional law-making responsibility as set forth in the statute and constitution."7

¶ 14. The alleged error in this case—in the jury instruction relating to the crime of threatening a judge—has substantial significance in our body of statutory and constitutional law. Furthermore, if the jury instruction was erroneous, it is probable that the "instruction obfuscate[d] the real issue or arguably caused the real issue not to be tried [and] reversal would be available in the discretion" of this court.8 We consequently conclude that this court should exercise its discretion to review the jury instruction relating to the elements of the crime of threatening a judge to determine whether the jury instruction is consistent with the constitutional right to freedom of speech.

[3]

¶ 15. We therefore exercise our discretion to review the merits of the defendant's objections to the jury instruction.

III

¶ 16. We begin our review of the jury instruction given in this case on the elements of the crime of threatening a judge by examining the First Amendment case law relating to statutes criminalizing threats to persons.

[4, 5]

¶ 17. This court agrees with the State and the defendant that some threatening words are protected speech under the First Amendment. Only a "true threat" is constitutionally punishable under statutes criminalizing threats. The phrase "true threat" is a term of art used by courts to refer to threatening language that is not protected by the First Amendment.

¶ 18. In R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992), the U.S. Supreme Court offered three rationales for denying First Amendment protection to threats of violence: "protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." The leading case distinguishing between punishable and protected threatening speech is Watts v. United States, 394 U.S. 705 (1969). In that case the U.S. Supreme Court reviewed Watts's conviction for violating a federal statute proscribing threats against the president of the United States. Watts was convicted for "threatening" President Lyndon Johnson at an antiwar rally, where he said:

They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.

Watts, 394 U.S. at 706.

¶ 19. In reversing the defendant's conviction for threatening the president, the U.S. Supreme Court evaluated the federal anti-threat statute in light of the First Amendment rights at stake. The Court determined that the statute was constitutional given the "valid, even...overwhelming, interest in protecting" the president. Watts, 394 U.S. at 707. However, despite the strength of this interest, the Court held that a statute criminalizing "pure speech" must distinguish between "true threats" and constitutionally protected speech. Id.

¶ 20. In Watts, the Court concluded that Watts's statement was not a true threat but rather "political hyperbole." Watts, 394 U.S. at 708...

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    • Wisconsin Supreme Court
    • May 16, 2001
    ...Amendment. By contrast, "true threat" is a constitutional term of art used to describe a specific category of unprotected speech. State v. Perkins, 2001 WI 46, ¶ 17, 243 Wis. 2d 141, 626 N.W.2d 762; see also Watts, 394 U.S. at 707-08. This category, although often inclusive of speech or act......
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    ...actions instead of his arguments is irrelevant because under the Supreme Court of Wisconsin's holding in State v. Perkins, 2001 WI 46, 243 Wis.2d 141, 626 N.W.2d 762, it is the jury instructions that control, not arguments by counsel. Id. at 243 Wis.2d at 164, 626 N.W.2d at 773 ("Arguments ......
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    ...to instruct a jury on an essential element of a crime is fundamentally unfair and cannot be harmless error. See State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, State v. Howard, 211 Wis. 2d 269, 564 N.W.2d 753 (1997), and State v. Avila, 192 Wis. 2d 870, 532 N.W.2d 423 ¶ 78. T......
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