State v. Harwood
| Decision Date | 24 July 2020 |
| Docket Number | No. 2019-034,2019-034 |
| Citation | 2020 VT 65 |
| Court | Vermont Supreme Court |
| Parties | State of Vermont v. Michael Harwood |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
On Appeal from Superior Court, Rutland Unit, Criminal Division
Ian C. Sullivan, Chief Deputy State's Attorney, and Victoria Santry, Law Clerk, Rutland, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Morris, Supr. J. (Ret.), Specially Assigned
¶ 1. CARROLL, J. Defendant Michael Harwood appeals from the trial court's decision concluding that he violated Condition N of his probation, which prohibited "violent or threatening behavior," by verbally threatening a corrections officer. On appeal, defendant argues that the trial court erred because threatening behavior requires some accompanying physical conduct. If verbal statements qualify as threatening behavior, defendant alternatively argues that he did not receive adequate notice that his verbal statements could result in a violation of probation. We affirm.
¶ 2. The record indicates the following. On July 28, 2017, defendant was charged by information with one count of aggravated domestic assault, 13 V.S.A. § 1043(a)(2), and two counts of disturbing the peace by phone, 13 V.S.A. § 1027(a). An affidavit accompanying the information alleged that on the evening of July 21, 2017, defendant saw his ex-girlfriend in Poultney, Vermont outside a convenience store. Defendant entered his ex-girlfriend's car and "told her to drive around back because he needed to get his coat." Although defendant's ex-girlfriend drove defendant around back so he could grab his belongings, she refused to take defendant anywhere else. After she refused again, defendant, while holding a large folding knife in front of him, told her that he was going to hurt her if she did not drive him to Arlington, Vermont.
¶ 3. The affidavit further alleged that on July 24, 2017, defendant's ex-girlfriend reported receiving several threatening and disturbing messages from defendant via Facebook Messenger.1 Defendant sent a message telling his ex-girlfriend that "I promise you your family has never seen the storm that's about to come, . . . you did this to me, dead or in jail are my options I have, I have nothing because of you." Defendant also sent a message saying he "almost got shot the other night," he "could have died," and if he did, it would have been his ex-girlfriend's fault because she put him in the situation. On July 27, 2017, defendant's ex-girlfriend reported receiving additional threatening messages, including several that had gun emojis.2
¶ 4. Based on the foregoing, on May 16, 2018, defendant pleaded guilty to first-degree aggravated domestic assault with a weapon, 13 V.S.A. § 1043(a)(2), for threatening to use a deadlyweapon on his ex-girlfriend. Defendant received a sentence of eighteen months to six years, all suspended except for one year to serve. As part of the plea agreement, defendant was placed on probation under standard and special conditions and the two counts of disturbing the peace by phone were dismissed. At the plea hearing, the court specifically asked defendant if he understood the conditions that were imposed pursuant to the agreement:
The probation order that issued the same day included the above conditions and provided the following at the end of the order: Defendant signed the probation order on June 6 while he was incarcerated at Southern State Correctional Facility.
¶ 5. About a week later, while defendant was in his cell, a corrections officer and a unit supervisor saw defendant squirting water out under his cell door. The corrections officer first spoke with defendant and warned him the facility would not tolerate this behavior. Defendant then became "verbally assaultive." The unit supervisor reminded defendant that he could violate his probation if he continued to engage in this behavior. Defendant responded flippantly and loudly yelled several expletives at the supervisor. The corrections officer—face-to-face with defendant, though separated by defendant's cell door—reminded him that this comment could result in disciplinary reports, which could extend his incarceration. Defendant replied that he would stab someone if he was held past his release date and threatened that he would have his gang go to the corrections officer's house and they would "get it done just like they do in New York." Defendant said that he could easily find the officer after his release because corrections officers are "dumb" and put their full names on disciplinary reports. The corrections officer considered defendant's statements a threat and was concerned defendant would physically execute his verbal threat upon his release from the facility.
¶ 6. Based on this incident, defendant's probation officer filed a Probation Violation Complaint alleging that defendant violated Condition N by threatening the corrections officer. Atthe merits hearing on the probation violation, the State, citing State v. Johnstone, 2013 VT 57, 194 Vt. 230, 75 A.3d 642, argued that defendant's statements constituted a threat and "he was on sufficient notice that saying things like he would stab someone if he had to serve for six years . . . could be viewed as threatening." On the other hand, defendant, citing State v. Schenk, 2018 VT 45, 207 Vt. 423, 190 A.3d 820, argued that his behavior could not qualify as threatening because threatening behavior requires accompanying conduct.
¶ 7. In a written order issued a few days later, the trial determined that defendant violated Condition N. The court concluded that defendant was on notice of what behaviors could violate Condition N because he received, reviewed, and signaled that he understood that he was subject to the condition. The trial court also concluded that defendant's verbal statements qualified as threatening because the defendant intended to put the corrections officer in fear of harm and/or to convey a message that he intended to harm the corrections officer upon his release from prison. The court found that defendant used a loud tone of voice, faced the corrections officer on the other side of the cell door, and intentionally directed a verbal threat to him. Additionally, the court observed that defendant made the threat after the corrections officer and the unit supervisor warned him about the potential consequences of his behavior.
¶ 8. Although the court acknowledged that, in Schenk, we defined threatening behavior under Vermont's disorderly-conduct statute to require accompanying conduct, the court concluded that Schenk did not apply in the probation context. The court reasoned that Schenk recognized the disorderly-conduct statute and probation conditions as two "distinct contexts" for the definition of threatening behavior. The court also explained that Schenk adopted a "narrowed" definition of "threatening behavior" in part to avoid constitutional infirmity under the First Amendment. Those same First Amendment concerns, the court explained, do not apply in probation cases because probation conditions may lawfully impact a probationer's First Amendment rights. Based on theselegal conclusions, the trial court revoked defendant's probation and imposed the underlying sentence of eighteen months to six years.
¶ 9. On appeal, defendant argues the trial court erred in holding that his verbal statements qualified as threatening behavior. Citing Schenk, defendant argues that "threatening behavior" requires "physical...
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