S15A1045. HARRELL v. THE STATE.
Supreme Court of Georgia
October 5, 2015
Reconsideration Denied November 2, 2015
778 SE2d 196
Judgment reversed and case remanded with direction. All the Justices concur.
DECIDED OCTOBER 5, 2015 — RECONSIDERATION DENIED NOVEMBER 2, 2015.
Martin Snow, Jenny M. Stansfield, Stuart E. Walker, John C. Edwards, for appellant.
Carmel W. Sanders, for appellee.
S15A1045. HARRELL v. THE STATE. (778 SE2d 196)
HINES, Presiding Justice.
Lister W. Harrell appeals from his convictions and sentences for endeavoring to intimidate a court officer and cruelty to animals. For the reasons that follow, we reverse.
Construed to support the verdicts, the evidence showed that Harrell was charged with violating the duties of a landlord and, after he failed to appear for a court hearing in connection with that charge, a bench warrant was issued for his arrest. On April 29, 2013, Harrell placed messages on the Internet site Facebook that referred to Dodge County Superior Court Clerk Rhett Walker and Deputy Chief Clerk Tammy Graham. One post threatened that if the bench warrant was not lifted, Harrell would post an Internet link to a video which he claimed showed Graham engaging in sexual activity with Harrell and two other men; no such video existed. Harrell also posted a claim that Graham had lied to the court regarding whether Harrell had been served with notice of a hearing regarding the accusation that he violated the duties of a landlord; it was his failure to appear at this hearing which served as the basis for the bench warrant being issued for him. In another post, Harrell listed Walker‘s personal cell phone number and urged readers to call Walker to tell him to leave Harrell alone while he was “on the run,” and thus not ruin Harrell‘s “chicken foot eating victory.” Harrell also initiated telephone communication with Walker in an attempt to persuade him to lift the bench warrant, saying that if he did not do so by a certain date, Harrell would “turn [Walker‘s] world upside down,” and that “you know what will happen on Facebook.”
At trial, evidence was also presented that on April 16, 2013, Harrell left two voice mail messages intended for Shirley Webb, Harrell‘s former girlfriend and the mother of two of Harrеll‘s children. In one message, Harrell stated that he was Sid Carter, Webb‘s current boyfriend, was placing the call from the cell phone of Harrell‘s son, and referred to a “dead pussy” in Webb‘s mailbox. In the other message, Harrell implied that he intended to upload pornographic videos of Webb to an Internet site. That same day, Carter, who lived with Webb, found a dead cat in their mailbox when he checkеd the mail. As Carter called 911 from his cell phone to report the dead cat, Harrell drove by the house, slowed down considerably, rolled down a window, and pointed at the mailbox containing the dead cat before driving away. Carter and Webb later found an animal trap on a portion of Harrell‘s property which adjoined Webb‘s.
1. At the time of the acts alleged in Harrell‘s indictment,
(a) A person who by threat or force or by any threatening action, letter, or communication:
- (1) Endeavors to intimidate or impede any grand juror or trial juror or any officer in or of any court of this state or any court of any county or municipality of this state or any officer who may be serving at any proceeding in any such court while in the discharge of such juror‘s or officer‘s duties;
- (2) Injures any grand juror or trial juror in his or her person or property on account of any indictment or verdict assented to by him or her or on account of his or her being or having been such juror; or
- (3) Injures any officer in or of any court of this state or any court of any county or municipality of this state or any officer who may be serving at any proceeding in any such court in his or her person or property on account of the performance of his or her officiаl duties
shall, upon conviction thereof, be punished by a fine of not more than $5,000.00 or by imprisonment for not more than 20 years, or both.
(b) As used in this Code section, the term “any officer in or of any court” means a judge, attorney, clerk of court, deputy clerk of court, court reporter, or probation officer.
(c) A person who by threat or force or by any threatening action, letter, or cоmmunication endeavors to intimidate any law enforcement officer, outside the scope and course of his or her employment, or his or her immediate family member in retaliation or response to the discharge of such officer‘s official duties shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years, a finе not to exceed $5,000.00, or both.1
Harrell contends that, on its face and as applied to him,
In Counts 2 and 3 of the indictment, Harrell was alleged to have violated
the offense of INTIMIDATION OF A COURT OFFICER, fоr that [Harrell] ... by a threatening communication, did unlawfully endeavor to intimidate [the alleged victim] while in the discharge of said officers [sic] duties, by threatening to embarrass and harass said [alleged victim if the alleged victim] did not withdraw a warrant issued by the Superior Court Judge ....4
“[I]n cases raising First Amendment issues ... an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ [Cits.]” Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (II) (104 SCt 1949, 80 LE2d 502) (1984). See also New York Times Co. v. Sullivan, 376 U. S. 254, 284-285 (84 SCt 710, 11 LE2d 686) (1964). When determining whether ” ‘an intent to inflict bodily harm’ exists, the speech is exаmined in the ‘light of its entire factual context, including the surrounding events and reaction of the listeners.’ [Cit.]” Corales v. Bennett, 567 F3d 554, 564 (III) (A) (9th Cir. 2009). A “true threat” may be conditional, need not be explicit, and the threatened violence need not be imminent. United States v. Turner, 720 F3d 411, 424 (2d Cir. 2013). “A true threat ‘convey[s] a gravity of purpose and likelihood of execution so as to constitute speech beyond the pale of protected vehement, caustic ... unplеasantly sharp attacks on government and public officials.’ [Cit.]” Nielander v. Board of County Commrs. of County Republic, Kan., 582 F3d 1155, 1168 (II) (B) (2) (a) (10th Cir. 2009).
As to Count 2 of the indictment, naming Graham as the victim, the only evidence was that Harrell posted embarrassing material about Graham, and threatened to post more. The fact that Harrell‘s communications were made only by Facebook and that he did not communicate with Graham directly would not preclude their being considered “true threats.” See United States v. Castillo, 564 Fed. Appx. 500, 502-503 (11th Cir. 2014). But, although Harrell‘s posting was on a Facebook group titled “DixieMafia,” it only suggested that
As to Count 3 of the indictment, naming Wаlker as the victim, Walker testified that after Harrell‘s telephone call, he “had to think about it and try to keep from getting a little nervous because I knew from what was going on that [Harrell] may not have been stable mentally, and so it concerned me.” He also testified that he “felt intimidated” by Harrell‘s Facebook posting and telephone call, and was “concerned” when Harrell stated that he “would turn [Walker‘s] world upside down,” but he did not testify that his concern was related to any fear of violence. There was no reference to any form of violence in Harrell‘s communications, nor even an intimation of such. See Black, supra. While Harrell‘s speech might well be described as caustic and unpleasant, Nielander, supra, it did not convey “a serious expression of an intent to commit an act of unlawful violence.” Black, supra.5
Although the State notes that
2. Harrell further contends that he should not have been tried on the animal cruelty charge in the same proceeding in which he had to answer the charges of endeavoring to intimidate court officers, and that the trial court erred in denying his motion to sever the cоunts.6 While in some circumstances joinder of charges is required, see
[t]wo or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both: (a) are of the same or similar сharacter, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
Id. at 463 (Punctuation omitted.) Further, when
two or more offenses are joined on grounds that they are of the same or similar character, and are part of a single scheme or plan, or are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, the trial court, in its discretion, should grant a severance of offenses if it is deemed appropriate to promote a fair determination of the defendant‘s guilt or innocence of each charge; in this regard, the question for decision is whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
Terry v. State, 259 Ga. 165, 168 (1) (377 SE2d 837) (1989).
Harrell asserts that joinder of the animal cruelty charge with the other charges was improper, as the acts alleged are not part of a single scheme or plan, are not basеd on the same conduct or series of acts,
Of course, cruelty to an animal and endeavoring to intimidate a court officer are not, judging by their statutory elements, similar crimes. Nor do the facts surrounding the commission of the acts alleged exhibit the basis for a proper joinder of charges. The indictment alleged that animal cruelty was committed on April 16, 2013, and that Harrell endeavored to intimidate the court officers on April 29, 2013. Although the acts were alleged to have been committed in close proximity of time, the record is devoid of any indication that they were committed in pursuit of some common scheme or that they had some connection. As alleged, they were simply sepаrate crimes of different character, committed 13 days apart.
The State contends that the similarity between the acts alleged “reaches the level of a pattern.” Cooper v. State, 253 Ga. 736, 737 (3) (325 SE2d 137) (1985). But, there is no evidence of such. The State asserted at the hearing on the motion to sever, and now asserts in this Court, that Harrell used the dead cat, and thus the results of the act of animal cruelty, “to intimidate or otherwisе hinder [Webb] from continued participation in [Harrell‘s] court case[ ],” and that Harrell thus had a “common motive” in making communications intended to intimidate Walker, Graham, and Webb, all in relation to court cases involving him. However, this argument is necessarily dependent on the claim that at the time of the animal cruelty, Webb was involved in a court case of Harrell‘s. But, the State made absolutely no shоwing in this regard; neither at the pre-trial motion hearing, nor at trial, did the State attempt to produce any evidence to support its statement to the trial court that Webb was “a witness in one court action” involving Harrell.
While there was testimony that there had been prior custody disputes between Webb and Harrell, that Carter described as “bitter,” there was no testimony that would allow an inference that there was any case existing between Webb and Harrell at the time of the acts alleged. Nor did the messages that Harrell left on Webb‘s answering machine contain any reference to a court case of Harrell‘s.8
And, there was no evidence that Harrell‘s motive for contacting Webb was to attempt to intimidate her into any action. Of course, that
Further, the failure to sever the counts must be considered harmful error. The crime of endeavoring to intimidаte a court officer is of an entirely different nature than animal cruelty, and the posture of the defense would have been dramatically different had severance been granted, and had the State presented only evidence regarding the charge of cruelty to an animal, without the additional, and prejudicial, evidence regarding Harrell‘s communications to and about Walker and Graham being placed before the jury. See Carter v. State, 261 Ga. 344, 345 (1) (404 SE2d 432) (1991). Further, Counts 2 and 3 were allegations that should not even have been presented to a jury, whether joined with Count 1 or standing by themselves. See Division 1, supra. The prejudicial effect of having to defend the charge of animal cruelty when joined with dissimilar, unconnected charges is exacerbated when those charges are not themselves properly presented for prosecution. The presentment of the joined charges to the jury in this case serves to demonstrate the value of severance of charges, which helps to prevent a defendant from being forced to proceed “at an unfair disadvantage, due to confusion of law and evidence by the trier of the fact and the ‘smear’ effect such confusion can produce.” Dingler, supra at 463 (Punctuation omitted.) See also Brown v. State, 230 Ga. App. 190, 193-194 (2) (495 SE2d 858) (1998). In these circumstances, Harrell‘s conviction on the charge of animal cruelty must be reversed.
3. As Harrell could be retried for cruelty to animals, we must address his contention that the evidence was insufficient to support his conviction for that crime. See Dinning v. State, 267 Ga. 879, 880 (485 SE2d 464) (1997).9 The jury could have inferred from the
4. The indictment was not subject to a special demurrer as it sufficiently informed Harrell of the animal cruelty charge he must be prepared to meet. See State v. Wyatt, 295 Ga. 257, 260 (2) (759 SE2d 500) (2014); Little v. State, 278 Ga. 425, 428 (4) (603 SE2d 252) (2004).
5. Harrell‘s remaining enumerations of error are either rendered moot by our reversal of his convictions or are unlikely to recur on retrial. See Jones v. State, 292 Ga. 656, 662-663 (3) (740 SE2d 590) (2013).
Judgments reversed. All the Justices concur.
DECIDED OCTOBER 5, 2015 — RECONSIDERATION DENIED NOVEMBER 2, 2015.
Thomas F. Jarriel, for appellant.
Timothy G. Vaughn, District Attorney, Christopher C. Gordon, Assistant District Attorney, for appellee.