State Of Washington v. Marcus Adam Overly
76033-5
| Wash. Ct. App. | Jan 17, 2017Background
- Markis Overly, a VA employee, became agitated after disputes with elderly patients and alleged inadequate VA police response; he missed medication and sought psychiatric treatment.
- At an appointment with psychiatrist Dr. Hickey, Overly threatened to buy a gun, shoot VA personnel (said he would kill "20 people"), blow up a building, and commit "suicide by police."
- Overly made phone calls the same day to VA police and his supervisor Richard Tangen, repeating threats and describing a written plan; coworkers and two officers heard portions of a long, agitated call on speakerphone.
- Overly was arrested and charged with (1) harassment of a criminal justice participant (class C felony) and (2) threats to bomb or injure property (class B felony); the jury convicted on the harassment count and acquitted on the bomb threats count.
- Overly appealed, arguing insufficient evidence (true threat and reasonable fear), ineffective assistance for not pursuing diminished capacity, erroneous denials of pro se status, and improper imposition of legal financial obligations (LFOs) without an ability-to-pay inquiry under RCW 9.94A.777.
Issues
| Issue | State's Argument | Overly's Argument | Held |
|---|---|---|---|
| Whether evidence supported finding Overly made a "true threat" | Statements (buying gun, shooting 20 people, blowing up a building), plans written down, immediacy, and angry demeanor showed a reasonable speaker would foresee being taken seriously | Statements were hyperbolic/therapeutic venting and insufficient to be a true threat | Affirmed: sufficient evidence to conclude statements were true threats under objective test (Kilburn/Schaler) |
| Whether officers (criminal justice participants) were placed in reasonable fear | Officers who heard call (including one who knew Overly) credibly testified they feared he might carry it out given tone, methodical detail, and prior demeanor | Overly argues fear was unreasonable given acquittal on bombing charge and lack of concrete ability | Affirmed: officers’ testimony supported that a reasonable criminal justice participant would have feared the threats |
| Whether counsel was ineffective for not pursuing diminished capacity | Counsel reasonably pursued a general denial strategy and prioritized acquittal on the more serious count; alternative defenses can be foregone as trial tactics | Failure to investigate/present diminished capacity was deficient and prejudicial | Affirmed: no ineffective assistance — decision not to pursue diminished capacity was a conceivable reasonable tactic (Strickland standard) |
| Whether trial court erred in denying pro se requests and in imposing LFOs without ability-to-pay inquiry | Court permissibly required clarity/timeliness; Overly withdrew trial pro se request and was later allowed to proceed pro se at sentencing; Overly failed to timely raise inability-to-pay at sentencing | Court improperly denied pro se rights and failed to comply with RCW 9.94A.777 before imposing fees | Affirmed: no error on pro se (initial request withdrawn; later granted for sentencing); LFO challenge waived because Overly, representing himself at sentencing, did not request RCW 9.94A.777 inquiry |
Key Cases Cited
- Winship v. United States, 397 U.S. 358 (Due process requires proof beyond a reasonable doubt)
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
- Kilburn v. State, 151 Wn.2d 36 (true threat objective test in Washington)
- Schaler v. State, 169 Wn.2d 274 (true-threat doctrine: context and objective standard)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance test: deficient performance and prejudice)
- Faretta v. California, 422 U.S. 806 (right to self-representation)
- State v. Kohonen, 192 Wn. App. 567 (limited independent review in true-threat sufficiency review)