State v. Taylor

• Citation: 270 N.C.App. 514,841 S.E.2d 776
• Decision Date: 17 March 2020
• Docket Number: No. COA18-810,COA18-810
• Parties: STATE of North Carolina v. David Warren TAYLOR, Defendant.
• Court: Court of Appeal of North Carolina (US)

270 N.C.App. 514

841 S.E.2d 776

STATE of North Carolina

v.David Warren TAYLOR, Defendant.

No. COA18-810

Court of Appeals of North Carolina.

Filed: March 17, 2020

Attorney General Joshua H. Stein, by Solicitor General Matthew W. Sawchak and Solicitor General Fellow Matthew C. Burke, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron Thomas Johnson, for Defendant.

McGEE, Chief Judge.

David Warren Taylor ("Defendant") was convicted on 23 January 2018, pursuant to N.C.G.S. § 14-16.7(a) (2017) (" N.C.G.S. § 14-16.7(a)" or "the statute"), of "Threatening to Kill a Court Officer," Macon County District Attorney Ashley Welch ("D.A. Welch"). In Watts v. United States , the United States Supreme Court held the First Amendment required that, in order to constitutionally convict a defendant pursuant to an anti-threat statute, the government had to prove that the "threat" alleged constituted a "true threat":

[T]he [anti-threat] statute ... requires the Government to prove a true "threat." We do not believe that the kind of political hyperbole indulged in by [the defendant] fits within that statutory term. For we must interpret the language Congress chose "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." The language of the political arena ... is often vituperative, abusive, and inexact.

Watts v. United States , 394 U.S. 705, 708, 89 S.Ct. 1399, 1401–02, 22 L. Ed. 2d 664, 667 (1969) (citation omitted).

In this case, the alleged threats were included in several Facebook comments Defendant posted to his personal Facebook page on 24 August 2016, between approximately 5:30 p.m. and 6:30 p.m. These posts were visible to Defendant's Facebook friends for one to two hours until Defendant deleted them. However, one of Defendant's Facebook friends, Detective Amy Stewart ("Detective Stewart") of the Macon County Sheriff's Office, who was also a friend of D.A. Welch, saw Defendant's comments and took screenshots of some of the posts before they were deleted by Defendant. Detective Stewart shared the screenshots with the Macon County Sheriff (the "sheriff") and D.A. Welch. The sheriff contacted the North Carolina State Bureau of Investigation ("SBI") that evening, and the SBI became the investigative body in this matter. Based primarily upon a comment Defendant made in one of his posts that "[i]f our head prosecutor won't do anything then the death to her as well[,]" Defendant was charged with threatening a court officer pursuant to N.C.G.S. § 14-16.7(a). At trial, Defendant requested a jury instruction on the First Amendment requirement, as determined by the Supreme Court in Watts and subsequent opinions, that a person cannot be charged or convicted under an anti-threat statute unless the State proves that the alleged threat constituted a "true threat." Defendant's motion was denied, and he was convicted.

Defendant appealed and makes an "as applied" constitutional challenge to N.C.G.S. § 14-16.7(a), alleging "the trial court erred in failing to dismiss the charge" because the State failed to prove the "true threat" element of the statute as required by the First Amendment. In addition, Defendant argues that "the trial court erred in failing to instruct the jury on the definition of a true threat[,]" also in violation of the First Amendment. Because we find that N.C.G.S. § 14-16.7(a) was applied to Defendant in violation of his First Amendment rights, we vacate his conviction.

I. Factual and Procedural Background

Defendant was indicted on 19 September 2016 for violation of the statute, which states in relevant part: "Any person who knowingly and willfully makes any threat ... to kill any ... court officer ... shall be guilty of a felony[.]" N.C.G.S. § 14-16.7(a). The indictment included five quotes from Defendant's Facebook comments:

[D]efendant ... did knowingly and willfully make a threat to kill [D.A. Welch], ... by posting the following on Facebook: "[P]eople question why a rebellion against our government is coming? I hope those that are friends with her share my post because she will be the first to go. ... I will give them both the mtn justice they deserve ... [.] If our head prosecutor won't do anything then the death to her as well. ... [I]t is up to the people to administer justice! I'm always game to do so. They make new ammo everyday! ... It is time for old Time mtn justice!"^{[1 ]}

Defendant was tried on 23 January 2018. Detective Stewart testified at trial that Defendant and D.A. Welch were friendly acquaintances prior to the events of 24 August 2016, which led to Defendant's conviction. Defendant worked for an investment and insurance company in an office next to the Macon County Courthouse. Defendant and D.A. Welch saw each other daily in a common outdoor smoking area shared by employees at Defendant's office building and the courthouse. Detective Stewart also used the same smoking area. Defendant's interactions with both women were always polite, and D.A. Welch testified that Defendant's favorite topic of conversation seemed to be politics. Detective Stewart testified that she and Defendant "had some of the same political beliefs and so we were friends on Facebook." She testified that on the evening of 24 August 2016, between 5:00 p.m. and 6:00 p.m., she signed on to Facebook and noticed some posts by Defendant that troubled her. Detective Stewart testified that Defendant's "initial post was about him being upset about a decision by the D.A.’s office with a case regarding a baby [(the ‘child’)] that had died. [T]here were no charges being brought [by D.A. Welch] against the parents [(the ‘parents’)], so he was upset about that."

Defendant's first post referenced the fact that the parents were not going to be prosecuted by D.A. Welch, addressed his belief that the "judicial system" was not working, and expressed his frustration that "[w]ith this [decision not to prosecute] people question why a rebellion against our government is coming? I hope those that are friends with her share my post because she will be the first to go, period and point made." Some of Defendant's Facebook "friends" responded to this post, and a "conversation" between Defendant and these friends ensued, which included disparaging remarks about D.A. Welch, politicians, the local justice system, and law enforcement officers. This Facebook conversation occurred in the time period between 5:30 p.m. and 6:30 p.m. Detective Stewart testified that she saw this conversation no later than 6:00 p.m. and, approximately an hour and a half later, she decided to take screenshots of some of the comments. The screenshots indicate that they were taken at approximately 7:30 p.m. Along with screenshots of some of the exchange between Defendant and his Facebook friends regarding the decision not to prosecute the parents, Detective Stewart also took screenshots of Defendant's Facebook profile, which included a large picture of John Wayne and a quote attributed to John Wayne stating: "Life is hard; it's harder if you're stupid." A smaller picture of Defendant's profile consisted of an American flag background with part of the "Gadsden" flag which includes a coiled snake and the first two words of the "Don't Tread on Me" slogan. Defendant's profile information also indicated that Defendant had attended Franklin High School, and that he was an Army veteran.

Detective Stewart testified that, after taking the screenshots, she called D.A. Welch and the sheriff to inform them about the comments. Detective Stewart also forwarded the screenshots to D.A. Welch and the sheriff. D.A. Welch contacted her office and informed her Chief Assistant D.A. of Detective Stewart's concerns; the matter was referred to the SBI that evening. Detective Stewart went back on Facebook an "hour or two" after capturing the screenshots, and Defendant's posts were no longer there, having been deleted by Defendant.

The following day, at approximately 1:25 p.m., SBI Special Agent Joel Schick ("Agent Schick") and another agent went to Defendant's workplace to interview him about his Facebook posts. Following the interview, Agent Schick left Defendant at Defendant's workplace, then returned to Defendant's office at approximately 3:20 p.m. with a warrant for Defendant's arrest, which stated there was probable cause to believe Defendant "knowingly ma[de] a threat to kill ... [D.A. Welch], by posting ‘If our head prosecutor won't do anything then the death to her as well’ " on his Facebook page.

Early in Defendant's trial, Defendant objected as the State was attempting to introduce five of Defendant's Facebook comments through the testimony of Detective Stewart. Detective Stewart and Agent Schick were questioned on voir dire , and Defendant argued (1) that none of the Facebook posts should be admitted due to authentication issues and, (2) in the alternative, if any of the posts were admitted, all of the posts should be admitted to provide context. The State argued that only the five posts it had chosen should be admitted, and the rest should be suppressed as hearsay, and because they were "irrelevant" to Defendant's charges. The trial court ruled against Defendant on the authentication argument, and the discussion then centered on whether to admit some or all of the posts captured by Detective Stewart's screenshots. The State argued the additional posts should not be admitted, dismissing Defendant's argument that the alleged threat had to be proven based upon its context: "We believe those are the five relevant texts. It's the State's position that the other texts ... are not relevant."

[THE STATE:] I don't think the other conversations are relevant. There's no exception to the statute for communicating threats if you're involved in a conversation with other peo

...