Harrell v. State

• Decision Date: 05 October 2015
• Docket Number: No. S15A1045.,S15A1045.
• Citation: 778 S.E.2d 196,297 Ga. 884
• Parties: HARRELL v. The STATE.
• Court: Georgia Supreme Court

297 Ga. 884

778 S.E.2d 196

HARRELL

v.The STATE.

No. S15A1045.

Supreme Court of Georgia.

Oct. 5, 2015.

Thomas F. Jarriel, Thomas F. Jarriel, Attorney, Macon, for appellant.

Timothy Grady Vaughn, Dist. Atty., Christopher Cary Gordon, Asst. Dist. Atty., Oconee Judicial Circuit District Attorney's Office, for appellee.

Opinion

HINES, Presiding Justice.

Lister W. Harrell appeals from his convictions and sentences for endeavoring to intimidate a court officer and cruelty to animals. For the reasons that follow, we reverse.

Construed to support the verdicts, the evidence showed that Harrell was charged with violating the duties of a landlord and, after he failed to appear for a court hearing in connection with that charge, a bench warrant was issued for his arrest. On April 29, 2013, Harrell placed messages on the internet site Facebook that referred to Dodge County Superior Court Clerk Rhett Walker and Deputy Chief Clerk Tammy Graham. One post threatened that if the bench warrant was not lifted, Harrell would post an internet link to a video which he claimed showed Graham engaging in sexual activity with Harrell and two other men; no such video existed. Harrell also posted a claim that Graham had lied to the court regarding whether Harrell had been served with notice of a hearing regarding the accusation that he violated the duties of a landlord; it was his failure to appear at this hearing which served as the basis for the bench warrant being issued for him. In another post, Harrell listed Walker's personal cell phone number and urged readers to call Walker to tell him to leave Harrell alone while he was “on the run,” and thus not ruin Harrell's “chicken foot eating victory.” Harrell also initiated telephone communication with Walker in an attempt to persuade him to lift the bench warrant, saying that if he did not do so by a certain date, Harrell would “turn [Walker's] world upside down,” and that “you know what will happen on Facebook.”

At trial, evidence was also presented that on April 15, 2013, Harrell left two voice mail messages intended for Shirley Webb, Harrell's former girlfriend and the mother of two of Harrell's children. In one message, Harrell stated that he was Sid Carter, Webb's current boyfriend, was placing the call from the cell phone of Harrell's son, and referred to a “dead pussy” in Webb's mailbox. In the other message, Harrell implied that he intended to upload pornographic videos of Webb to an internet site. That same day, Carter, who lived with Webb, found a dead cat in their mailbox when he checked the mail. As Carter called 911 from his cell phone to report the dead cat, Harrell drove by the house, slowed down considerably, rolled down a window, and pointed at the mailbox containing the dead cat before driving away. Carter and Webb later found an animal trap on a portion of Harrell's property which adjoined Webb's.

1. At the time of the acts alleged in Harrell's indictment, OCGA § 16–10–97read:

(a) A person who by threat or force or by any threatening action, letter, or communication:

(1) Endeavors to intimidate or impede any grand juror or trial juror or any officer in or of any court of this state or any court of any county or municipality of this state or any officer who may be serving at any proceeding in any such court while in the discharge of such juror's or officer's duties;

(2) Injures any grand juror or trial juror in his or her person or property on account of any indictment or verdict assented to by him or her or on account of his or her being or having been such juror; or

(3) Injures any officer in or of any court of this state or any court of any county or municipality of this state or any officer who may be serving at any proceeding in any such court in his or her person or property on account of the performance of his or her official duties

shall, upon conviction thereof, be punished by a fine of not more than $5,000.00 or by imprisonment for not more than 20 years, or both. (b) As used in this Code section, the term “any officer in or of any court” means a judge, attorney, clerk of court, deputy clerk of court, court reporter, or probation officer.

(c) A person who by threat or force or by any threatening action, letter, or communication endeavors to intimidate any law enforcement officer, outside the scope and course of his or her employment, or his or her immediate family member in retaliation or response to the discharge of such officer's official duties shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years, a fine not to exceed $5,000.00, or both.¹

Harrell contends that, on its face and as applied to him, OCGA § 16–10–97(a)(1)is unconstitutional because it violates the right of free speech found in the First Amendment to the Constitution of the United States.²The Supreme Court of the United States has held that a state can criminalize some speech made with the intent to intimidate another without running afoul of the First Amendment.³Virginia v. Black,538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). However, we conclude that OCGA § 16–10–97(a)(1)was unconstitutionally applied to Harrell.

In Counts 2 and 3 of the indictment, Harrell was alleged to have violated OCGA § 16–10–97(a)(1), with both counts accusing him of

the offense of INTIMIDATION OF A COURT OFFICER, for that [Harrell] ... by a threatening communication, did unlawfully endeavor to intimidate [the alleged victim] while in the discharge of said officers [sic] duties, by threatening to embarrass and harass said [alleged victim if the alleged victim] did not withdraw a warrant issued by the Superior Court Judge....⁴

As noted, a prohibition against intimidating another by speech does not necessarily run afoul of the First Amendment. However, in Black,supra, the United States Supreme Court addressed a Virginia statute that stated: “It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place.” Id. at 348(I), 123 S.Ct. 1536. In doing so, the Court stated that “[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id. at 344(III)(A), 123 S.Ct. 1536. Thus, for intimidation such as alleged in the indictment to be validly proscribed by OCGA § 16–10–97(a) (1), the intimidation must be considered a “true threat.” And, as Blacknoted, “ ‘[t]rue threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. [Cits.]” Id. at 359, 123 S.Ct. 1536.

“[I]n cases raising First Amendment issues ... an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ [Cits.]” Bose Corp. v. Consumers Union of U.S., Inc.,466 U.S. 485, 499(II), 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). See also New York Times Co. v. Sullivan,376 U.S. 254, 284–285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). When determining whether “ ‘an intent to inflict bodily harm’ exists, the speech is examined in the ‘light of its entire factual context, including the surrounding events and reaction of the listeners.’ [Cit.]” Corales v. Bennett,567 F.3d 554, 564(III)(A) (9th Cir.2009). A “true threat” may be conditional, need not be explicit, and the threatened violence need not be imminent. United States v. Turner,720 F.3d 411, 424 (2d Cir.2013). “A true threat ‘convey[s] a gravity of purpose and likelihood of execution so as to constitute speech beyond the pale of protected vehement, caustic ... unpleasantly sharp attacks on government and public officials.’ [Cit.]” Nielander v. Board of County Com'rs of County Republic, Kan.,582 F.3d 1155, 1168(II)(B)(2)(a) (10th Cir.2009).

As to Count 2 of the indictment, naming Graham as the victim, the only evidence was that Harrell posted embarrassing material about Graham, and threatened to post more. The fact that Harrell's communications were made only by Facebook and that he did not communicate with Graham directly would not preclude their being considered “true threats.” See United States v. Castillo,564 Fed.Appx. 500, 502–503 (11th Cir.2014). But, although Harrell's posting was on a Facebook group titled “DixieMafia,” it only suggested that she had lied to the court and that such would lead to her arrest, and that an embarrassing video of her would be released; nothing in the communications threaten an unlawful act of violence to her as required by Black,supra.

As to Count 3 of the indictment, naming Walker as the victim, Walker testified that after Harrell's telephone call, he “had to think about it and try to keep from getting a little nervous because I knew from what was going on that [Harrell] may not have been stable mentally, and so it concerned me.” He also testified that he “felt intimidated” by Harrell's Facebook posting and telephone call, and was “concerned” when Harrell stated that he “would turn [Walker's] world upside down,” but he did not testify that his concern was related to any fear of violence. There was no reference to any form of violence in Harrell's communications, nor even an intimation of such. See Black,supra. While Harrell's speech might well be described as caustic and unpleasant, Nielander,supra, it did not convey “a serious expression of an intent to commit an act of unlawful violence.” Black,supra.⁵

Although the State notes that OCGA § 16–10–97(a)(1)prohibits endeavoring to impede a court officer through communication, and asserts that Walker and Graham were impeded in the discharge of their duties by virtue of Harrell's speech, ...