Abbott v. State

• Decision Date: 25 February 2010
• Docket Number: No. 1900, Sept. Term, 2008.,1900, Sept. Term, 2008.
• Citation: 989 A.2d 795,190 Md. App. 595
• Parties: Walter Carl ABBOTT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

989 A.2d 795

190 Md. App. 595

Walter Carl ABBOTT v. STATE of Maryland.

No. 1900, Sept. Term, 2008.

Court of Special Appeals of Maryland.

February 25, 2010.

Arthur M. Frank, Baltimore, for appellant.

Jessica V. Carter (Douglas F. Gansler, Atty. Gen. on the brief), Baltimore, for appellee.

Panel: HOLLANDER, GRAEFF and JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.

HOLLANDER, Judge.

Following a trial in October 2008, a jury in the Circuit Court for Baltimore County convicted Walter Carl Abbott, Jr., appellant, of threatening to injure Governor Martin O'Malley, a State official, in violation of MD. CODE (2002, 2008 Supp.), § 3-708(b) of the Criminal Law Article ("C.L.").¹ The alleged threat was contained in an e-mail message that appellant sent to a State website in March 2008. The court sentenced appellant to a suspended term of six months' incarceration and imposed a fine of $500.²

This appeal followed. Appellant poses four questions, which we have rephrased slightly and reordered:

1. Did the circuit court err in failing to grant appellant's motion for judgment of acquittal, based on the insufficiency of the evidence?

2. Did the trial court err in failing to propound appellant's requested jury instructions 9 through 13, all of which state relevant federal and state constitutional provisions relating to one's freedom of speech and to petition the government for a redress of grievances?

3. Did the cumulative effect of the trial judge's jury instructions create reversible error, i.e., primarily instructing the jury that Governor O'Malley need not be present for the State to prove the case, no intent was required, nor was it necessary for the State to show that the e-mail in question was a real threat, and, for refusing to instruct the jurors that they are to narrowly construe the statute and that a threat must be distinguished from constitutionally protected speech?

4. Did the trial court err in granting the State's motion in limine, preventing defense counsel from arguing to the jury at opening and closing that the alleged threat was protected by the free speech clause of First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights?

For the reasons set forth below, we shall vacate the conviction and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND³

Prior to jury selection, the State moved for a protective order with respect to records that appellant subpoenaed from the Maryland State Police regarding the executive protection detail assigned to Governor O'Malley.⁴ Appellant's counsel explained that he sought the information to establish that injuring the Governor "[i]s an impossibility with the way the Governor is protected." The court granted the protective order.

In addition, the State moved "to prevent the Defendant from arguing to the jury that the speech that constitutes the threat in this case, or the alleged threat, is protected by the First Amendment." The court also granted that motion.

Appellant subpoenaed Governor O'Malley "or his designee" for the trial. A notice attached to the subpoena stated: "In the event you do not wish to appear for trial personally as a witness, the attached Subpoena authorizes you to designate another person to appear on your behalf with information, calendars, and notes which would show your basic itinerary for the dates noted." The Governor did not appear at appellant's trial.

At trial, the State called one witness, Maryland State Police Sergeant Adam Stachurski, who was assigned to the Homeland Security Intelligence Division. Stachurski testified that, shortly after 7:30 a.m. on March 18, 2008, appellant sent an e-mail from his home computer to a State website maintained by the Office of the Governor. The website solicited feedback in the following format:

Contact Governor O'Malley

We'd like to hear from you.

Whether you're a citizen of Maryland or just visiting our great state, your comments and suggestions are welcome.

Please use the form provided below to tell us what you think. Your feedback is valuable — it gives the Governor and his staff useful information that helps improve our service to all Marylanders. Be sure to include your E-mail address so a response may be provided. You should receive an electronic acknowledgement [sic] shortly after sharing your comments.

* * *

Thanks for taking the time to contact the Governor's Office of Maryland. Come again!

-Martin O'Malley, Governor

The website included fields for personal information about the individual composing the message. Select fields required that all characters be capitalized. The content of the message was limited to 4000 characters. As explained on the website, longer communications were to be sent to the Governor's Office via postal mail.

The commentator's name was requested in four categories (prefix, first, last, and suffix). Appellant typed his name as "FUCK Walter Carl Abbott YOU." He provided his actual address and phone number in the appropriate fields. Under the category for "Organization Name," appellant typed "FUCKING SOLD OUT AMERICAN," and he identified his relationship to this organization as "president." He did not fill out the request for "my correspondence topic" or "subject." The text of his electronic message was as follows:

O'Malley, getting ready to lose my wife after 24 years of marri[a]ge. 3rd construction co. & 2nd house I am going to lose because of no good fucking government like you and pieces of shit like you. If i[sic] ever get close enough to yoy [sic], I will rap [sic] my hands around your throat and strangle the life from you. This will solve many problems for true AMERICAN'S [sic]. Maybe you can send your MEXICAN army after me, you no good AMERICAN SELL OUT PIECE OF SHIT. I HOPE YOU DROP DEAD BEFORE I GET TO YOU, I WOULD HATE TO TO [sic] LOSE MY LIFE BECAUSE OF A PIECE OF SHIT LIKE YOU. FUCK YOU TRULY

WALTER C. ABBOTT JR.

The parties stipulated that the Governor's office received the e-mail. Upon receipt, the Governor's Office forwarded the e-mail to the Maryland State Police. Stachurski immediately began to investigate appellant.

Stachurski arrived at appellant's residence at approximately 11:50 a.m. on March 18, 2008, the same day that appellant sent the e-mail. According to Stachurski, appellant "welcomed us and brought us into his house." He continued:

We sat down at his table, explained if he knew why (inaudible), he put is head down and said yes and at that time I handed him a copy of the e-mail as I read it to him to see if he was familiar with the e-mail. ... He was visibly shaken and said yes, he sent it out.

Stachurski added: "[H]e said as soon as he hit the button he knew he wanted to take it back at that point."

On cross-examination, Stachurski indicated that he did not know whether Governor O'Malley actually read or received the e-mail. He agreed that appellant was "cooperative," and never tried to hide that he sent the e-mail. Moreover, he indicated that Abbott told him that he sent the e-mail because "sending this message would receive a response"; Abbott "regretted sending the e-mail"; and he indicated that "he meant no harm." According to Stachurski, appellant did not show "anger but he showed some discern [sic] towards illegal immigration issues."

Appellant moved for judgment of acquittal at the close of the State's case. He argued:

[W]hen someone threatens a Judge ... there's no, absolutely no political purpose in making that threat. But when you send a threat to a website invited by the Governor's people himself, that invites public comment and you couple that alleged threat with some political statements on immigration, I don't like what you're doing and if I could ever, if I could ever get close enough to you, which is a condition, I would choke the life from you. The First Amendment ... The Maryland Declaration of Rights, Article 40, all talks about a person's right to freedom of speech. ... [W]hen the threat is made in the context of a political statement, every place cited by Pendergast, Watts, Ma[i]sonet, Barcl[e]y, every case that did not sustain the conviction [had similar] factors ... One, the victims, when they sustained the conviction, the victim, alleged victim, was there to testify they got the letter, they got the threat and felt threatened and number two, there was absolutely no political purpose made with the alleged threat. ...

Appellant's counsel added:

[T]here's no requirement that Governor O'Malley testify but there's another thing missing from the State. It was sent to a Governor's website. ... There's no testimony that Governor O'Malley even received the threat. That certainly should be a condition of a conviction ...

In appellant's supporting memorandum, he argued that his e-mail was "nothing more than `political hyperbole'" about illegal immigration. Abbott's attorney pointed to the trooper's testimony that appellant said he was just trying to gain the Governor's attention. Appellant also noted that "there has been absolutely no testimony in evidence Governor O'Malley even knows this e-mail was sent," nor did the State prove that appellant "was even aware that his response to a government web site, inviting comments in the first place, would ever be read by the Governor." Further, the defense argued:

It is abundantly clear ... that if the letter was ambiguous, meaning one person could think the letter a threat and another interpretation could be that Mr. Abbott was making a political statement, the Court should grant Defendant's motion for judgment of acquittal. Moreover, any reasonable person, even considering the evidence in a light most favorable to the State, would conclude that Mr. Abbott's e-mail was nothing more than "political hyperbole," protected by one's inherent right to free and unfettered political expression. Since there is no real ambiguity and it is clear Mr. Abbott was, in-fact, making a political statement ... this Court...