State v. Chung, s. 15847

• Citation: 862 P.2d 1063,75 Haw. 398
• Decision Date: 01 December 1993
• Docket Number: 16111,Nos. 15847,s. 15847
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Dathan CHUNG, Defendant-Appellee. *
• Court: Supreme Court of Hawai'i

Page 1063

862 P.2d 1063

75 Haw. 398

STATE of Hawaii, Plaintiff-Appellant, v. Dathan CHUNG, Defendant-Appellee.

Nos. 15847, 16111. ^*

Supreme Court of Hawai'i.

Dec. 1, 1993.

Syllabus by the Court

1. A grand jury indictment must be based on probable cause. Probable cause means such a state of facts as would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.

2. Hawaii Revised Statutes (HRS) § 707-715 (1985) identifies the conduct proscribed by the offense of terroristic threatening, inter alia, as a threat to cause bodily injury to another person; the same statute identifies terrorization as the result of the conduct proscribed. With respect to the latter, the statute alternatively enumerates "intent" or "reckless disregard" (i.e., "recklessness") as the requisite states of mind. Although the statute is silent as to the requisite state of mind applicable to the proscribed conduct, no purpose to apply different states of mind plainly appears.

3. In the case of terroristic threatening, a threat becomes a crime only when it is coupled, inter alia, with a reckless disregard of the risk of terrorizing.

4. To be subject to criminal prosecution for terroristic threatening, the threat must be conveyed either to the person who is the object of the threat or to a third party. An uncommunicated threat, by definition, cannot threaten. A person making threats does not commit a crime until the threat is heard by one other than the speaker.

5. Actual terrorization is not a material element of the offense of terroristic threatening. The question, inter alia, is whether upon the evidence a reasonable trier of fact might fairly conclude that the defendant uttered his or her threats in reckless disregard of the risk of terrorizing another person.

6. Whether speech is protected by the first amendment to the United States Constitution, as applied to the states through the due process clause of the fourteenth amendment, is a question of law which is freely reviewable on appeal.

7. A statement that amounts to a threat to kill is not protected by the first amendment.

8. The word "threat" excludes statements, which are, when taken in context, not "true threats" because they are conditional or made in jest. Threats punishable consistent with the first amendment are only those that according to their language and context convey a gravity of purpose and likelihood of execution so as to constitute speech beyond the pale of protected vehement, caustic, and unpleasantly sharp attacks. Proof of a "true threat" focuses on threats that are so unambiguous and have such immediacy that they convincingly express an intention of being carried out. So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution, a statute proscribing the threat may properly be applied.

James M. Anderson, Deputy Pros. Atty., Honolulu, for plaintiff-appellant.

Peter Van Name Esser (Alvin T. Sasaki, on the briefs), Honolulu, for defendant-appellee.

Before LUM, C.J., ^** MOON, KLEIN and LEVINSON, JJ., and HAYASHI, ^*** Retired J., assigned by reason of vacancy.

LEVINSON, Justice.

In No. 15847, the plaintiff-appellant State of Hawaii (State) appeals the findings of fact (FOFs), conclusions of law (COLs), and order, entered by the First Circuit Court on December 13, 1991, granting the defendant-appellee Dathan Chung's motion to dismiss Counts I and II of the indictment charging him with two counts of terroristic threatening in the first degree. Because we agree with the State that the circuit court committed reversible error, we vacate the order granting Chung's motion to dismiss and remand for further proceedings consistent with this opinion. ¹

I. BACKGROUND

On January 15, 1991, the Oahu Grand Jury returned a three-count indictment charging Chung with two counts of terroristic threatening in the first degree ² and one count of possession, use or threat to use a firearm in the commission of a felony. Count I alleged that during the period from September 1, 1989 to December 19, 1990, Chung

threatened, by word or conduct, to cause bodily injury to another person, by threatening another person on more than one occasion for the same or similar purpose, in reckless disregard of the risk of terrorizing another person, thereby committing the offense of Terroristic Threatening in the First Degree, in violation of Section 707-716(1)(a) of the Hawaii Revised Statutes. ³

Count II alleged that during the same period, Chung "threatened, by word or conduct[,] to cause bodily injury to a public servant, in reckless disregard of the risk of terrorizing said public servant, thereby committing the offense of Terroristic Threatening in the First Degree, in violation of Section 707-716(1)(c) of the Hawaii Revised Statutes." ⁴ Count III alleged that on December 18 and 19, 1990, Chung knowingly possess[ed] or intentionally use[d] or threaten[ed] to use a firearm while engaged in the commission of a felony, whether the firearm was loaded or not, and whether operable or not, thereby committing the offense of Possession, Use or Threat to Use a Firearm in the Commission of a Felony, in violation of Section 134-6(a) and (d) of the Hawaii Revised Statutes. ⁵

At the time of the alleged offenses, Chung was a teacher at Pearl City High School (PCHS).

During the grand jury proceedings, the State elicited the testimony of four of Chung's fellow teachers, the principal, Gerald Suyama (who was the alleged victim of the terroristic threatening), and three officers of the Honolulu Police Department (HPD). The first witness, David Langen, testified that he was an English teacher at PCHS and, as such, a colleague and friend of Chung's for over ten years. From the beginning of the 1989-90 school year through December 18, 1990 (the relevant period), Chung became increasingly preoccupied with a belief that Suyama was "hounding him" and that a "long succession" of principals at PCHS, culminating with Suyama, were "out to get the weaker teachers, the ones who couldn't control their classes." During the relevant period, Chung exhibited "a deterioration of behavior and attitude" and once displayed a gun. Approximately three times, Chung spoke in Langen's presence about shooting Suyama. Chung's statements caused Langen to be "very concerned, and dismayed, and frightened," prompting Langen to try "to talk him out of it." Langen considered Chung's statements to be "very real threat[s] ... to be afraid of." On one occasion, Langen recalled Chung to have articulated the following "pretty frightening stuff":

I can't take this any more. The principal [is] just leaning on me.... I'm a man grasping at straws.... [Y]ou can't stop a man if he doesn't want to live any more.... [A] day doesn't pass that [I] don't feel like killing myself.... I think I'll bring a gun[;] I'll shoot the principal and shoot myself.

Not wanting to get Chung in trouble, Langen "hinted" to Suyama that Chung's situation was "dangerous" and that it "would be very counter-productive" for Suyama to "be leaning on" him.

A second teacher at PCHS, Andrew Grabar, testified that on December 18, 1990, Chung entered Grabar's classroom, complained of having problems and taking "much medication," and said that he was going to shoot Suyama. Chung then produced from his waist what appeared to be a .22 caliber semiautomatic pistol and two fully loaded clips of cartridges. Placing the pistol on Grabar's table, Chung unloaded it by removing another fully loaded clip and an additional shell from the pistol's chamber. Chung then said, "I'm going to shoot the principal; I'm going to kill him." Chung also spoke of killing himself. At the time, Grabar "was so scared" that he "didn't know what to do." The next morning, however, Grabar went to the school early and met with the vice principal; together they notified the police. Grabar filled out a police report and later the same day identified the pistol and clip that Chung had previously displayed.

A third teacher, John Doughty, testified that on December 18, 1990, Chung (who looked like "he was not all there") approached the table at which Doughty was seated in the teachers' lunch room, sat down, and said that "the administration or the principal was out to get him again." Alluding to "some stories about Viet Nam," Chung said that "they weren't going to get him because he was going to take care of them." Chung then "pulled out a clip from a .22," placed it on the table, asked Doughty if he knew what it was, and said that "if the principal was going to go and if he had to go with him[,] he would." After invoking Chung's family in an effort to dissuade Chung from any ill-advised action, Doughty approached the vice principal and informed him that Chung "wasn't all there" and added, "now, I'm telling you this, right, so if anything happens, I've told you."

The fourth teacher to be called as a witness was Jacob Hueo, who testified that on December 18, 1990, he was watching a band concert between two buildings at the high school when Chung approached him, asked how he got along with "the old man," and expressed a desire to shoot Suyama, noting that he--Chung--did not care to live. Chung produced two clips of bullets from his pocket, displayed them to Hueo, and asked, "[W]hat are you going to do? You going to call the policeman?" Hueo advised Chung that he was going to inform the vice principal of what had occurred instead. Hueo subsequently did so.

Gerald Suyama testified that he had been the principal of PCHS for the last four and a half years, and, as such, was an administrator in the employ of the State of Hawaii Department of Education. He further testified that, early in the 1989-90 school year and on December 18, 1990, he was advised that...