State v. Peterson

• Citation: 936 N.W.2d 912
• Decision Date: 09 December 2019
• Docket Number: A18-2105
• Parties: STATE of Minnesota, Respondent, v. Jason Elliot PETERSON, Appellant.
• Court: Court of Appeals of Minnesota

936 N.W.2d 912

STATE of Minnesota, Respondent,

v.Jason Elliot PETERSON, Appellant.

A18-2105

Court of Appeals of Minnesota.

Filed December 9, 2019

Keith Ellison, Attorney General, St. Paul, Minnesota; and John L. Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney, Faribault, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and Jesson, Judge.

BRATVOLD, Judge

Appellant Jason Elliot Peterson challenges his judgments of conviction for two counts of stalking under Minn. Stat. § 609.749, subd. 2(4). The jury heard evidence that, in August and September 2016 and January 2017, Peterson repeatedly called and left voicemails for several employees of the Rice County Sheriff’s Department and Social Services Department, complaining about his 2002 family-law case and causing those employees to feel frightened.

On appeal, Peterson contends that his convictions must be reversed for three reasons: (1) Minn. Stat. § 609.749, subd. 2(4), the stalking-by-telephone statute, is unconstitutional under the First Amendment to the United States Constitution; (2) the district court failed to obtain a valid waiver of his right to counsel; and (3) the district court deprived him of his right to testify by excluding his testimony about his reasons for making the telephone calls and leaving the voicemails. Peterson also argues his sentence was improper and we must remand for resentencing. We determine the stalking-by-telephone statute is substantially overbroad in violation of the First Amendment; we therefore reverse Peterson’s judgments of conviction. We do not reach the other three issues raised in Peterson’s appeal.

FACTS

On August 29, 2016, Peterson telephoned the Rice County Sheriff (the sheriff) and left a voicemail message. The sheriff "immediately" returned Peterson’s call, and Peterson began "swearing and yelling," and threatened to "arrest" him. The sheriff ended the phone call and called Peterson two days later; in that call, Peterson was "hostile" and again said that he would "arrest" the sheriff. On September 6, 2016, Peterson called an employee at the Minnesota Bureau of Criminal Apprehension (BCA employee) with questions about "arrest[ing]" the sheriff and, again, swore during the call; the BCA employee reported Peterson’s call to the sheriff.

On September 23, 2016, a Rice County Sheriff’s Deputy (the deputy) served Peterson at his home with legal pleadings in an unrelated civil case. After knocking on the door and making contact with Peterson, the deputy explained he had paperwork to drop off. Peterson became "very vocal" and stated that "me and [the sheriff] are gonna be butting heads pretty godd-mn hard if he doesn't get ahold of me" and that "[the sheriff] can run but he cannot f-cking hide." The deputy reported Peterson’s statements to the sheriff. The sheriff became concerned about his own safety and his family’s safety. He showed his wife Peterson’s photo so she could be "on extra alert" and "take extra measures."

Several times during January 2017, particularly on January 19 and 20, Peterson called and left voicemails with Rice County employees. Peterson left six voicemails for a child-protection social worker. In the voicemails, Peterson stated, "I'm coming for your asses," and said he would "call the lawyer" and "have [her] ass arrested" if he did not receive a return phone call. Peterson’s voicemails had over 20 expletives. The child-protection social worker testified that "each [voicemail] increased with—was more threatening than the first."

In late January 2017, Peterson placed phone calls to three Rice County employees. One employee testified that Peterson’s demeanor was "angry and threatening"; she felt Peterson may come to her office and hurt someone. A second employee testified Peterson was "extremely angry," "swearing a lot," stated he "would come into [their] office and raise hell" if her supervisor "didn't call [Peterson] back exactly at three" and "he would kick the sheriff’s ass and [another employee’s] as well." This employee became "concerned for [her] coworkers and for [her]self." A third employee testified that Peterson told her over the phone "you won't know what day or time or when I may come." The third employee testified she felt her personal safety was at risk; she asked law enforcement to escort her to and from work.

The state charged Peterson with two counts of violating Minn. Stat. § 609.749, subd. 2(4), stalking by repeatedly making telephone calls on or about September 23, 2016 (count one); and stalking by repeatedly making telephone calls on or about January 26, 2017 (count two). Peterson moved to dismiss the complaint, arguing count one lacked probable cause and that Minn. Stat. § 609.749, subd. 2(4), was constitutionally overbroad facially and as applied to him. After a contested omnibus hearing, the district court determined probable cause existed, the statute was constitutional, and Peterson’s conduct involved threats not protected by the First Amendment.

Although a lawyer represented Peterson for many pretrial proceedings, Peterson represented himself at the two-day jury trial. The sheriff, the sheriff’s wife, the deputy, the BCA employee, and five Rice County employees testified at trial to the facts summarized above. The state played for the jury the six voicemails and the deputy’s digital recording of his encounter with Peterson.

Peterson testified in his own defense. Peterson admitted to threatening the sheriff when the deputy visited his home and stated that he intended to "shake [the sheriff] up a little bit." When asked whether he placed the phone calls and left the alleged voicemails, Peterson responded, "Yeah, I'm surprised you don't have the other ones." Peterson admitted he swore during the phone calls, and stated he "stand[s] by" the January voicemails. Peterson testified that "[he] did call [Rice County employees] repeatedly" because he wanted "to get answers ... on what happened" in his 2002 family-law case, which resulted in changes to custody and visitation.

The jury found Peterson guilty of both counts of stalking by telephone under Minn. Stat. § 609.749, subd. 2(4). The district court sentenced Peterson to 365 days in jail on each count, consecutive, and stayed execution of his sentence on count two. This appeal follows.

ISSUE

Is Minnesota Statutes section 609.749, subdivision 2(4), facially overbroad in violation of the First Amendment and, if so, is a judicial remedy available to correct the constitutional defect?

ANALYSIS

Peterson argues that Minnesota Statutes section 609.749, subdivision 2(4), the stalking-by-telephone statute, unconstitutionally restricts speech protected by the First Amendment. In his reply brief, Peterson relies on the Minnesota Supreme Court’s recent decision in In re Welfare of A.J.B. , 929 N.W.2d 840 (Minn. 2019). A.J.B . was filed after Peterson’s conviction and after Peterson appealed to this court. A.J.B . held that Minn. Stat. § 609.749, subd. 2(6) (2014), the stalking-by-mail statute, prohibited and chilled protected expression and that the statute "facially violates the First Amendment overbreadth doctrine." 929 N.W.2d at 856.

The state argues we should uphold the stalking-by-telephone statute based on our decision in State v. Hall , which affirmed a conviction of stalking by telephone and held the provision was "not unconstitutionally overbroad on its face." 887 N.W.2d 847, 858 (Minn. App. 2016), review denied (Minn. Feb. 22, 2017). It is true that the supreme court decision in A.J.B ., which was filed after Hall , makes no reference to our decision in Hall or to the stalking-by-telephone statute. See A.J.B. , 929 N.W.2d at 840-57. Yet, as discussed in more detail below, the stalking-by-mail statute that the supreme court declared unconstitutional in A.J.B. is strikingly similar to the stalking-by-telephone statute challenged in this appeal. Compare Minn. Stat. § 609.749, subd. 2(6), with Minn. Stat. § 609.749, subd. 2(4).

Thus, we begin our analysis of the issue by discussing A.J.B . Next, we apply the four-step overbreadth analysis and determine the stalking-by-telephone statute is unconstitutionally overbroad and cannot be judicially remedied. Lastly, we expressly overrule our decision in Hall .

A.J.B. was a high school student, who created an anonymous Twitter account and posted roughly 40 tweets within a few hours about a fellow student, M. B. 929 N.W.2d at 844. A.J.B.’s tweets included "cruel and egregious insults" and urged M.B. to commit suicide. Id. at 845. The state charged A.J.B. with two counts of stalking by mail under Minn. Stat. § 609.749, subd. 2(6), and one count of mail harassment under Minn. Stat. § 609.795, subd. 1(3) (2014).¹ See A.J.B. , 929 N.W.2d at 845. The juvenile court found him guilty on all three charges and adjudicated him delinquent. Id. On appeal to this court, we upheld the constitutionality of the stalking-by-mail statute. Id. See In re Welfare of A.J.B. , 910 N.W.2d 491, 502-03 (Minn. App. 2018), rev'd A.J.B. , 929 N.W.2d 840.

The supreme court granted review and reversed. A.J.B. , 929 N.W.2d at 845-46. The supreme court held that the stalking-by-mail statute was unconstitutionally overbroad because it proscribed a substantial amount of protected speech and that it could not be judicially remedied by narrowing its construction or severing language. Id. at 856-57.²

With A.J.B . firmly in mind, we turn to the constitutionality of the stalking-by-telephone statute. We review the constitutionality of a statute de novo. State v. Hensel , 901 N.W.2d 166, 170 (Minn. 2017). Generally, Minnesota Statutes are presumed constitutional, but "statutes allegedly restricting First Amendment rights are not so presumed." Dunham v. Roer , 708 N.W.2d 552, 562 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006).

A statute that...