State v. Phelps, 79412

Decision Date06 November 1998
Docket NumberNo. 79412,79412
PartiesSTATE of Kansas, Appellant, v. Fred W. PHELPS, Sr., Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. In an appeal by the prosecution from an order discharging the defendant for lack of probable cause that a crime has been committed, this court follows the same standard for weighing the evidence as the judge at the preliminary examination. This court is to conduct a de novo review of the evidence when considering the trial court's probable cause finding.

2. A judge reweighing the preliminary examination evidence after arraignment and prior to trial must follow the standard for weighing the evidence as required for the preliminary examination.

3. The sole question before the judge or magistrate at the conclusion of a preliminary hearing is the same question an appellate court is faced with upon de novo review: whether the evidence is sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.

4. There is no statutory authority for the State to appeal from the dismissal in a criminal case of some of the counts of a multiple-count complaint, information, or indictment while the case remains pending before the district court on all or a portion of the remaining counts which have not been dismissed and which have not been finally resolved.

5. The proper test to determine the reaction of an alleged victim in an intimidation or aggravated intimidation charge is objective, not subjective, i.e., that of a reasonable person. There are exceptions to this rule, such as where the perpetrator has knowledge of a particular vulnerability of the victim and then acts with full knowledge of the victim's vulnerability.

6. Threat means a communicated intent to inflict physical or other harm on any person or on property.

Joan M. Hamilton, District Attorney, argued the cause, and Joel W. Meinecke, Assistant District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief for appellant.

Fred W. Phelps, Sr., appellee, argued the cause and was on the brief pro se.

ABBOTT, Justice:

This is an appeal by the State from an order dismissing the criminal charges filed by the State. The defendant, Fred W. Phelps, Sr., was charged with two felony counts of aggravated intimidation of a witness, contrary to K.S.A. 21-3833, and disorderly conduct, a misdemeanor, contrary to K.S.A. 21-4101.

This case originated in 1992, nearly 7 years ago, and has traveled many paths so that it is necessary to focus on the legal issues involved and not become enamored with the many interesting but irrelevant arguments. The facts and procedural history (highly summarized) commenced on March 22, 1992. The victim, Jerry Palmer, was en route to a political fund raiser at the Jayhawk Hotel in Topeka. The defendant and others were picketing the event and were on the sidewalk in front of the Jayhawk Hotel. Phelps called Palmer a "sodomite." Phelps, in the presence of others, then twice called Palmer a "fat, ugly, sodomite."

Palmer complained to the then district attorney who took no action. A new district attorney took office, and a complaint was filed against Phelps in February 1993, charging him with disorderly conduct pursuant to K.S.A. 21-4101.

For some period of time (at least 1 year), Phelps and his followers had picketed St. David's Episcopal Church (St.David's) and a number of other churches, businesses, and public places in Topeka, and throughout Kansas and the United States. St. David's and other churches and organizations had actively opposed the picketing.

On June 20, 1993, Palmer arrived at St. David's where he attended church. Jonathan Phelps, son of Phelps, was standing in front of St. David's holding a sign. The sign was actually two signs joined together, with one sign on top of the other, with the two staffs forming a single staff.

The top half of the sign read, "Pig Palmer FUS." The record makes it clear that "FUS" was intended to mean "Fat, Ugly, Sodomite." The bottom half of the sign read, "Gays Are Worthy Of Death," with a biblical reference to "Romans 1:32."

St. David's is on the northwest corner of the intersection of 17th Street and Gage Boulevard. Phelps was carrying a sign unrelated to Palmer and was picketing south of the southeast corner of 17th Street and Gage Boulevard on the east side of Gage Boulevard. Jonathan Phelps was in front of St. David's, which would have placed him west of the intersection on the north side of 17th Street.

Palmer was the only witness in this case, and he acknowledged that neither Phelps nor Jonathan Phelps said anything to him that was intimidating. Palmer filed a police report requesting that Phelps and Jonathan Phelps be charged with aggravated intimidation of a witness or intimidation of a witness.

The following Sunday, the same sign, or one nearly identical, was displayed by Jonathan Phelps in front of St. David's. The record is not clear, but when the evidence is viewed in a light most favorable to the State, Palmer was present at church. He did not personally view the sign, but was told about it by others.

The procedural history of the charges that were filed and amended are of no importance. Phelps was ultimately charged with disorderly conduct, a misdemeanor arising from the incident near the Jayhawk Hotel in 1992, to-wit:

"[W]ith knowledge that such acts will alarm, anger or disturb others, to-wit: Jerry R. Palmer, FRED W. PHELPS, SR. did use offensive, obscene or abusive language tending reasonably to arouse alarm, anger or resentment in others, to-wit: Jerry R. Palmer, contrary to the form of the [statutes] in such case made and provided and against the peace and dignity of the State of Kansas."

Phelps and Jonathan Phelps were also charged with two felonies, as follows:

"On or about the 18th day of June, FRED W. PHELPS, SR. and JONATHAN BAXTER PHELPS, in Topeka, Shawnee County, Kansas, did knowingly, feloniously and maliciously attempt to prevent or dissuade a witness, to-wit: Jerry Palmer from giving testimony in a criminal proceeding or causing a complaint from being sought with constant harassing and an offensive picket sign about the witness, to-wit: 'PIG PALMER FUS', (meaning fat, ugly, sodomite), such act being done in furtherance of a conspiracy, and did also display another sign attached to the 'PIG PALMER FUS' sign reading, 'Gays are Worthy of Death' and on the other side reading, 'God Hates Fags', such acts being an implied threat of force or violence against the witness, to wit: Jerry Palmer, contrary to the form of the statutes in such case and peace and dignity of the State of Kansas."

and

"On or about the 27th day of June, FRED W. PHELPS, SR. and JONATHAN BAXTER PHELPS, in Topeka, Shawnee County Kansas, did knowingly, feloniously and maliciously attempt to prevent or dissuade a witness, to-wit: Jerry Palmer from giving testimony in a criminal proceeding or causing a complaint from being sought with constant harassing, and an offensive picket sign about the witness, to-wit: 'PIG PALMER FUS' (meaning fat, ugly, sodomite), and another sign reading, 'FAG Church' with 'PIG PALMER FUS' attached, such acts being done in furtherance of a conspiracy, and did also display another sign attached to the 'PIG PALMER FUS' sign reading, 'Gays are worthy of Death' such acts being an implied threat of force or violence against the witness, to wit: Jerry Palmer, contrary to the form of the statutes in such case and peace and dignity of the State of Kansas."

At the preliminary hearing before Judge Rosen, Palmer testified that he was intimidated by a sign with his name on it, singling him out as a sodomite and declaring that gays are worthy of death. He explained that FUS stood for fat, ugly, sodomite and that FUS was on the same staff as the phrase "Gays Are Worthy Of Death." Palmer testified that "sodomite, fag, and gays are used collectively in their vocabulary to mean homosexuals." Thus, "[i]f I'm a sodomite and that equals gays and gays are worthy of death, then I am worthy of death. That is the communication." Palmer acknowledged that neither Phelps nor Jonathan Phelps said anything to him that was intimidating.

When Hamilton asked Palmer whether the events of June 20 and June 27 had any impact on him as a possible witness to the State in the disorderly conduct case, Palmer replied that he "was paying a price." This "price" included "loss of privacy, being harassed at my church, being the subject of faxes and lies spread all over this community by the fax ministry of Westboro Baptist Church. You know, that's bothersome."

Phelps and Jonathan Phelps both requested to represent themselves at the preliminary examination. Palmer was the only witness to testify at the preliminary examination. Palmer maintained that he had experienced physical symptoms as a result of the implied threats. He could not specify that these symptoms were specifically tied to the June 20 or June 27 event, but asserted that he saw the Phelps' actions as a pattern of harassment and intimidation. Palmer stated that after the June 20 incident, his blood pressure was high, he had trouble sleeping, and he had to have medicine prescribed for his high blood pressure and inability to sleep.

Phelps did not follow Judge Rosen's repeated warnings to follow the rules of evidence and court rulings while cross-examining Palmer. Judge Rosen terminated Phelps' self-representation.

Judge Rosen gave Phelps approximately 1 month to retain counsel and to prepare for continuation of the preliminary examination. On January 19, 1996, a writ of habeas corpus was filed with this court, seeking relief from Judge Rosen's termination of Phelps' pro se representation. We denied relief, and the preliminary examination was recommenced on February 8, 1996, with Fred Phelps, Jr. replacing Phelps, pro se, as counsel.

When ruling on whether the State had established...

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