State v. Schweppe

• Decision Date: 26 December 1975
• Docket Number: No. 45080,45080
• Citation: 306 Minn. 395,237 N.W.2d 609
• Parties: STATE of Minnesota, Respondent, v. Thomas Lee SCHWEPPE, Appellant.
• Court: Minnesota Supreme Court

Page 609

237 N.W.2d 609

306 Minn. 395

STATE of Minnesota, Respondent, v. Thomas Lee SCHWEPPE, Appellant.

No. 45080.

Supreme Court of Minnesota.

Dec. 26, 1975.

Syllabus by the Court

Upon defendant's appeal after a conviction of the crime of terroristic threats in violation of Minn.St. 609.713, subd. 1, we hold that (1) the evidence was sufficient to support the conviction; (2) evidence of defendant's homosexuality and his homosexual relations with the person threatened was admissible as relevant to proof of defendant's purpose or motive for uttering the alleged threats; (3) defendant was not denied his right to effective assistance of counsel at trial; and (4) defendant was afforded a fair trial free of prejudicial error to his substantial rights.

C. Paul Jones, Public Defender, Mollie Raskind, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., Peter W. Sipkins, Solicitor Gen., Richard B. Allyn, Asst. Atty. Gen., Kent G. Harbison, Sp. Asst. Atty. Gen., St. Paul, Elton A. Kuderer, County Atty., Fairmont, for respondent.

Heard before ROGOSHESKE, YETKA and SCOTT, JJ., and considered and decided by the court en banc.

ROGOSHESKE, Justice.

Defendant was found guilty by a jury of the crime of terroristic threats, Minn.St. 609.713, subd. 1. In this appeal from the judgment of conviction and from an order denying his alternative motion for a judgment of acquittal or for a new trial, defendant principally asserts that (1) the evidence was insufficient as a matter of law to support the jury's finding of guilt; (2) prejudicial error occurred when the prosecution introduced evidence of defendant's homosexuality; (3) the prosecution failed before trial to give proper notice of his intention to use this evidence; and (4) defendant was denied his constitutional right to the effective assistance of counsel. We find that the evidence was sufficient to sustain the jury's verdict, there was no prejudicial error, and defendant was afforded a fair trial. Accordingly, we affirm.

Defendant, age 31, was charged and convicted of making terroristic threats directed at Douglas Grotte, age 16, and his mother on the evening of May 7, 1973. That evening defendant spent some time at the Family Cue, a recreation center in Fairmont largely frequented by teenagers. While at the Family Cue, he talked to several persons, asking them questions about Douglas Grotte. He had an extended conversation with one Jon Larkin, age 15, who was an acquaintance of Douglas Grotte.

Jon Larkin testified at trial that defendant asked him questions about Grotte's whereabouts, his work schedule, and daily habits. He asked Larkin to go up to Grotte and say his (defendant's) name and then report back to defendant how Grotte reacted. He said that Grotte should be 'real scared.' Defendant wrote his first name and his telephone number on a slip of paper and gave it to Larkin so the latter could call him with the information he had requested.

Three other teenagers, schoolmates of Grotte, testified that they had overheard defendant make certain statements in the Family Cue that night. Mike Meyer, age 15, testified that he heard defendant say the word 'kill' but did not hear anything else defendant said. He attempted to phone Douglas Grotte that evening.

Peter Sukalski, age 15, heard defendant say that 'he wanted to kill Doug and his mom.' He also heard him calling Jon Larkin names.

Tom Fisch, age 15, testified that he 'heard something about killing Doug Grotte. (He didn't) know what the exact words were, but (he) heard the word 'kill' and 'Doug' right next to each other.' He said he heard nothing else in the conversation.

At some point in the evening, Douglas Grotte entered the Family Cue. Jon Larkin stated that he was talking to defendant when Grotte entered, and that defendant left Larkin at that time and approached Grotte. Defendant persisted in asking Grotte if he could have a minute of his time, and Grotte kept refusing to talk to him. After approximately 10 minutes, Grotte's ride came and he left the recreation center.

The next day, Jon Larkin approached Grotte during the lunch hour at school and told him, 'Tom Schweppe was looking for (you) at the Cue the other night.' Grotte testified that one Randy Laffey told him after school that defendant had made threats against him. Grotte stated he was 'scared' about the threats. After he got home from work (Grotte had a part-time, after-school job), Grotte told his mother about the threats. After supper that day, May 8, Douglas Grotte went to the police station to complain. Defendant was subsequently arrested on the charge of making terroristic threats.

The statute under which defendant was convicted, § 609.713, subd. 1, provides:

'Whoever Threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly or facility of public transportation or otherwise to cause serious public inconvenience, Or in a reckless disregard of the risk of causing such terror or inconvenience may be sentenced to imprisonment for not more than five years.' (Italics supplied.)

The above statute was enacted by the Minnesota Legislature in 1971 and is patterned after 10 U.L.A., Model Penal Code, § 211.3. ¹ No reported cases in Minnesota have cited this statute or construed its meaning. A number of other jurisdictions have statutes similar to § 609.713. ²

The state asserts, and the trial court instructed the jury, that the critical elements of the offense charged are (1) the accused made threats (2) to commit a crime of violence (3) with purpose to terrorize another or in reckless disregard of the risk of terrorizing another. Defendant asserts that the statute also requires that the threat be communicated to the victim by the accused or be made under circumstances that support an inference that the actor intended the threat to be communicated to the victim. Because the interpretation of this new statute is one of first impression in Minnesota, we deem it appropriate to review separately what we regard as the essential elements of this offense as presented by this case.

A threat is a declaration of an intention to injure another or his property by some unlawful act. See, Armstrong v. Ellington, 312 F.Supp. 1119, 1125 (W.D.Tenn.1970); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972). The test of whether words or phrases are harmless or threatening is the context in which they are used. United States v. Prochaska, 222 F.2d 1 (7 Cir. 1955); United States v. Pennell, 144 F.Supp. 317 (N.D.Cal.1956). Thus the question of whether a given statement is a threat turns on whether the 'communication 'in its context' would 'have a reasonable tendency to create apprehension that its originator will act according to its tenor." United States v. Bozeman, 495 F.2d 508, 510 (5 Cir. 1974). Defendant's alleged statements in this case clearly constituted a threat to inflict personal injury. If the jury believed the unrefuted testimony of the prosecution witnesses, as we must assume from the verdict, then there was ample evidence to support the conclusion that defendant on May 7, 1973, threatened to kill Douglas Grotte and his mother, Corine Grotte. Obviously, such threats involved a 'crime of violence' prohibited by our homicide statutes, §§ 609.18 to 609.21.

Section 609.713, subd. 1, requires that defendant utter the threat with the purpose of terrorizing another. Purpose in this context means aim, objective, or intention. Cf. State v. Baldino, 11 N.J.Super. 158, 78 A.2d 95 (1951). Terrorize means to cause extreme fear by use of violence or threats. See, Armstrong v. Ellington, supra; State v. Gunzelman, supra.

The evidence supports the jury's conclusion that defendant uttered threats with the purpose to terrorize Douglas and Corine Grotte. Jon Larkin testified that on the night in question defendant said he wanted to make Douglas Grotte 'paranoid.' Defendant told Larkin to mention defendant's name to Grotte and to report to defendant whether Grotte reacted in a fearful manner.

Defendant asserts that evidence of purpose requires either a direct threat to the victim or a threat made in such a way as to support the inference that the speaker intended it to be conveyed to the victim. Defendant is logically correct in that a speaker cannot intentionally commit the crime of terrorizing another if the utters the threat in circumstances where he does not know, or have reason to know, that it will be communicated to the victim. This argument is of no help to defendant in this case, however, because the undenied testimony of the prosecution witnesses established that defendant uttered his threats in the presence of, and by conversing with, friends and acquaintances of Grotte. Such evidence implies, and clearly would support, a finding that defendant knew, or had reason to know, and thus intended that his threats to kill Douglas Grotte would be communicated to him. Section 609.713, subd. 1, which was read to the jury, prohibits threats made 'in a reckless disregard of the risk of causing such terror.' The jury also may well have concluded that defendant at the very least recklessly risked the danger that his threats would be communicated and thereby would terrorize Grotte. Other courts have concluded that a defendant need not directly communicate the threat to the intended victim to be guilty of making a criminal threat. See, Gurley v. United States, 308 A.2d 785 (D.C.App.1973); State v. Lizotte, 256 A.2d 439, 442 (Maine 1969).

The effect of a terroristic threat on the victim is not an essential element of the statutory offense proscribed by § 609.713, subd. 1. See, State v. Lizotte, supra. The trial court here permitted questions and testimony as to the effect of the alleged threat but instructed the jury to consider such testimony only to the extent that it had a bearing on the intent of defendant in making the threats. Defendant argues that the...