State v. SchalerState v. Schaler
- Reporters:
- ,
- Before:
- Stephens (en banc)
STEPHENS, J.
¶ 1 This case concerns the interplay between the threats-to-kill provision of Washington‘s harassment statute,
BACKGROUND FACTS AND PROCEDURAL HISTORY
¶ 2 On the morning of August 10, 2005, Director Tonya Heller-Wilson of Crisis Services for Okanogan Behavioral Healthcare received a call from Glen Schaler, who claimed to have killed his neighbors.1 Schaler was crying and hysterical. He told Heller-Wilson that he awoke from a drеam and thought he had killed his neighbor, and that killing his neighbors had been occupying his daytime thoughts, too. Heller-Wilson testified that Schaler seemed extremely upset at the prospect that he might have hurt someone. He threatened to kill himself. Heller-Wilson had a co-worker contact the police.
¶ 3 Deputy Connie Humphrey arrived at Schaler‘s residence several minutes later, while Schaler was still on the phone with Heller-Wilson. When Humphrey knocked on Schaler‘s door, Schaler told her to “go away” and said, “`I dreamed I slit her throat.‘” Verbatim Report of Proceedings (VRP) (Feb. 6, 2007) at 207. Schaler handed Humphrey the phone through the doorway, and Heller-Wilson asked Humphrey to bring Schaler in for an evaluation if the situation did not turn into a criminal investigation. When Humphrey entered, she observed that
¶ 4 Deputy Humphrey brought Schaler to the hospital and left him in Heller-Wilson‘s care. Humphrey was called back to the hospital twice during the next several hours to assist Heller-Wilson. Humphrey tried to get Schaler to comply with the mental health staff, who at one point attempted to give Schaler an injection. In response, Schaler stated, “`[B]ring it on, cause there was going to be a fight, and that someone was going to get hurt[,]’ [h]e could guarantee it,” but then told the staff how he had previously suffered back and neck injuries. Id. at 220. Schaler also said that “next time he was going to get a bunch of guns, and it would be [a] blood bath.” Id. Based on his behavior, Schaler‘s commitment status was changed from voluntary to involuntary because Heller-Wilson believed Schaler was a danger to himself and tо others.
¶ 5 Heller-Wilson came “in and out of the room” while Schaler was receiving medical attention at the hospital, including the drawing of his blood. Id. at 250. She testified that Schaler was having some sort of mental breakdown. During Heller-Wilson‘s contact with Schaler, he repeatedly referred to two neighbors, Kathy Nockels and Denise Busbin. Schaler “was pretty specific that he, he wanted to kill his neighbors.” Id. at 247. Schaler specifically said that “he wanted to kill them with his bare hands, by strangulation,” although he also said, “`I hope I didn‘t really kill her.‘” Id. at 248, 267. Schaler said that he had been planning his neighbor‘s death for months and had dreamt about it, but in the dream she hit him and scratched his face. Heller-Wilson tried to ascertain whether Schaler was making a serious threat:
I can‘t recall specifically how I asked him. I, I know that you don‘t, it‘s part of my job to try to keep people out of the hospital. And when people tell me that they feel like they want somebody to die, or they want to die, I always go into the explanation that you know, there are times that I wish I were dead, but I don‘t have a plan to kill myself. I mean, you know, there are just times, and there‘s times that I wish my, my boss didn‘t exist, but I don‘t have a plan to kill him. And I kind of went that way, and I said “You know, sure, you might wish that they weren‘t there. Maybe you‘re [sic] life would be a little bit easier.” But he said specifically, he wanted to harm them.
Id. at 248-49. Schaler repeated his desire to kill his neighbors to Heller-Wilson over the approximately four hours she spent with him. He appeared angry when he made these comments and never said he was not serious or did not mean what he said. Heller-Wilson believed Schaler had made a “viable threat” and so, pursuant to her duty to warn,2 she contacted Nockels and Busbin to inform them of Schaler‘s comments. Id. at 251-53. On cross-examination, Heller-Wilson acknowledged that the situation was complicated by the fact that Schaler initiated contact with her office, was clearly agitated, and was requesting help from her as a crisis cоunselor.
¶ 6 Schaler told Heller-Wilson of an incident on June 1, 2005, involving a dispute over fruit trees, which he said was one reason that he wanted to kill his neighbors. Schaler believed that a row of Busbin‘s fruit trees was interfering with his rightful access to an alley. Nockels called the police after she noticed Schaler cutting the trees with a chain saw. When Nockels asked Schaler to stop, Schaler raised his chain saw toward Nockels and told her to “stay out of this.” VRP (Feb. 7, 2007) at 10-11. Deputy Michael Blake arrived in response to the 911 call. After Blake arrived, Schaler said that
¶ 7 Nockels testified that she believed Schaler was going to kill her as a result of the fruit tree incident. She felt similarly after Heller-Wilson warned her of Schaler‘s comments at the hospital. Busbin felt Schaler was capable of carrying out the threats. Both women obtained protective orders against Schaler after the tree incident and thereafter made sure that each woman always knew the location of the other.
¶ 8 Schaler was charged with two counts under the threats-to-kill provision of the harassment statute,
¶ 9 On appeal, Schaler argued that the evidence was insufficient to support the jury‘s verdict. He also challenged the jury instructions for the first time, arguing that the First Amendment requires an explicit “true threat” instruction. The Court of Appeals held that the trial court erred by failing to instruct the jury on “true threats” but that any error was harmless beyond a reasonable doubt. State v. Schaler, 145 Wash.App. 628, 640-41, 186 P.3d 1170 (2008). It further held that the evidence at trial was sufficient to support Schaler‘s conviction. Id. at 644, 186 P.3d 1170. We granted review. 165 Wash.2d 1015, 199 P.3d 411 (2009).
STANDARD OF REVIEW
¶ 10 Instructional errors based on legal rulings are reviewed de novo, as are constitutional questions. State v. Grande, 164 Wash.2d 135, 140, 187 P.3d 248 (2008); State v. Brett, 126 Wash.2d 136, 171, 892 P.2d 29 (1995). We engage in independent review of the record in First Amendment cases “`so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.‘” State v. Kilburn, 151 Wash.2d 36, 49-50, 84 P.3d 1215 (2004) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 508, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)).
¶ 11 Here, Schaler failed to raise his First Amendment argument until appeal. An appellate court may refuse to address a claim of error not raised in the trial court unless it finds a “manifest error affecting a constitutional right.”
ANALYSIS
I. Jury Instructions
1. True Threats
¶ 12 “The First Amendment, applicable to the States through the Fourteenth Amendment, provides that `Congress shall make no law ... abridging the freedom of speech.‘” Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). While the scope of the First Amendment is broad, it does not extend to “unprotected speech.” Kilburn, 151 Wash.2d at 42-43, 84 P.3d 1215.
¶ 13 “True threats” occupy one category of unprotected speech. Id. at 43, 84 P.3d 1215. A true threat is “a statement
¶ 14 Importantly, only threats that are “true” may be proscribed. The First Amendment prohibits the State from criminalizing communications that bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole. Id. at 43, 84 P.3d 1215. We recently interpreted the bomb threat statute,
2. Instructional Error
¶ 15 Schaler assigns error to the trial court‘s failure to give the jury a true threat instruction. Because he did not object to the instructions at trial, the first question we must address is whether this case involves a manifest error affecting a constitutional right. See
[T]he focus of the actual prejudice [analysis] must be on whether the error is so obvious on the record that the error warrants appellate review.... Thus, to determine whether an error is practical and identifiable, the appellate court must place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the error.
Id. at 99-100, 217 P.3d 756 (citation and footnote omitted). This analysis is distinct from deciding whether the error was harmless and therefore does not warrant reversal. Id. at 98, 217 P.3d 756.
¶ 16 Schaler argues that he did not make a true threat, as constitutionally required, because he was describing his mental state and the contents of a dream he was having to a mental health specialist after calling a crisis services hotline. Pet. for Review at 13, 16. In the context of his mental health evaluation, Schaler contends, his words were a cry for help, and a reasonable person in his position would not foresee that a listener would take them as a serious expression of intent to kill his neighbors. Appellant‘s Opening Br. at 11-12.
¶ 17 The State responds that no true threat instruction was necessary because the threats-to-kill provision was sufficiently narrowed by the instructions at trial. Br. of Resp‘t at 30-31; Suppl. Br. of Resp‘t at 3-5.
¶ 18 In pertinent part, the threats-to-kill provision reads:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; [and]
. . . .
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out....
. . . .
[(2)](b) A person who harasses another is guilty of a class C felony if ... the person harasses another person under subsection
(1)(a)(i) of this section by threatening to kill the person threatened....
¶ 19 The trial court instructed the jury as to the statutory еlements in instructions 5 and 16. Clerk‘s Papers (CP) at 26, 33, 44. The court further instructed the jury in instruction 10 that “`threat’ means to communicate, directly or indirectly, the intent to cause bodily injury immediately or in the future to the person threatened or to any other person.” CP 26, 38 (paralleling
¶ 20 Reading the definitions into the statute, the jury was advised that a person is guilty of threats-to-kill harassment if (1) without lawful authority, he subjectively intends to communicate, directly or indirectly, the intent to kill the person threatened or any other person, and (2) by words or conduct, he places the person threatened in reasonable fear that the threat will be carried out. We can therefore construct the following schematic of what the jury was told is criminalized by the threats-to-kill provision:
Conduct: Communicating, i.e., uttering words or undertaking expressive conduct to another.
Circumstances: The words or conduct suggest an intent to kill somebody.
Result: The person threatened reasonably fears that the threat will be carried out.
Mens Rea: As to the conduct and circumstances, the person acts intentionally.
¶ 21 No mens rea was specified as to the result. The jury instructions did not state that the defendant must know or foresee that the person threatened (or, for that matter, any listener) would reasonably fear that the threat will be carried out. This is because the statute uses the term “knowingly threaten” in subsection (1)(a) but includes no mens rea term in the separate subsection listing the result requirement, (1)(b).
¶ 22 In some criminal contexts, the lack of mens rea as to a proscribed result poses no problem. For example, one can commit first degree murder if, in the course of committing first degree burglary, one causes the death of a nonparticipant; no mens rea as to the result of death is required.
¶ 23 In the context of criminalizing speech, however, the lack of mens rea as to the result is critical. Because the First Amendment limits the statute to proscribing “true threats,” it must be read to reach only those instances “`wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention... to tаke the life of another person.‘” Kilburn, 151 Wash.2d at 43, 84 P.3d 1215 (emphasis added) (internal punctuation and quotation marks omitted) (quoting Williams, 144 Wash.2d at 208-09, 26 P.3d 890). This standard requires the defendant to have some mens rea as to the result of the hearer‘s fear: simple negligence.3 See W. PAGE KEETON ET AL., PROSSER & KEETON ON TORTS § 31, at 169 (5th ed. 1984) (describing negligence as the failure to guard against “a
¶ 24 This error was manifest and affected a constitutional right. Because they did not comply with the First Amendment‘s “true threat” requirement, the instructions given at trial allowed the jury to convict Schaler based on his utterance of protected speech.5 See Johnston, 156 Wash.2d at 364-65, 127 P.3d 707 (holding that the failure to instruct on “true threat” was not harmless because thе evidence was close on whether the defendant had the appropriate mens rea). The trial court could have corrected the error given the clear state of the law at the time that it instructed the jury. We therefore hold that the error was manifest and thus properly addressed on appeal.
3. Harmless Error
¶ 25 We must further determine whether the omission of the constitutionally required mens rea from the jury instructions is subject to harmless error analysis. The situation is analogous to one in which the jury instructions omit an element of the crime.6 An omission of an essential element from the jury instructions may be harmless when it is clear that the omission did not contribute to the verdict. State v. Brown, 147 Wash.2d 330, 340-41, 58 P.3d 889 (2002). This is clear, for example, when the omitted element is supported by uncontroverted evidence. Id. at 341, 58 P.3d 889. On the other hand, error is not harmless when the evidence and instructions leave it ambiguous as to whether the jury could have convicted on improper grounds. See id. at 341-43, 58 P.3d 889 (holding that erroneous accomplice liability instructions were not harmless for any charges against the defendants wherein the jury might have convicted on an improper understanding of the law); see also Johnston, 156 Wash.2d at 364-65, 127 P.3d 707 (stating that the error was not harmless because the jury could have convicted “merely on the basis that Johnston said the words” of a threat).
¶ 26 Here, we cannot know whether the jury properly determined that Schaler‘s threats to kill his neighbors were “true threats.” Certainly, there was evidence that Schaler said he wanted to kill his neighbors, described planning to do so, and dreamt about the event. However, Schaler never explicitly said that he would do so, his behavior at the time was erratic, and he was often contradictory. For example, he said that he wished to kill his neighbor with his bare hands, but in the same breath said that he
¶ 27 Such utterances do nоt unequivocally lead to a finding of a true threat. They are also consistent with an impression of Schaler as mentally unstable and lashing out somewhat incoherently at those around him. Cf. Johnston, 156 Wash.2d at 357-58, 364-65, 127 P.3d 707 (suggesting that a drunken defendant‘s outbursts might not have been true threats). Furthermore, Schaler‘s statements took place in the context of a mental health evaluation, which occurred in the hospital while Schaler received medical treatment. The statements were uttered to a crisis counselor, Heller-Wilson, who testified that Schaler was in the midst of a mental breakdown. Schaler appeared to be very upset at the idea that he might have hurt someone. Indeed, he had called the crisis hotline for help and stated that he was considering suicide.
¶ 28 Thus, while the jury could have concluded that Schaler‘s statements were serious threats and that a reasonable speaker would so regard them, they could also have concluded that Schaler‘s threats were a cry for help from a mentally troubled man, directed toward mental health professionals who could help him.7 For this reason we cannot conclude on the record that there was “uncontroverted evidence” that Schaler‘s threats were true threats. Therefore, the omission of a true threat instruction was not harmless. Reversal is required because the jury was not asked to decide whether a reasonable person in Schaler‘s position would foresee that his statements or acts would be interpreted as a serious expression of intent to carry out the threat, and the evidence was ambiguous on the point.8
II. Sufficiency of the Evidence
¶ 29 The final question we must answer is whether the case should be remanded for a new trial under proper instructions or instead dismissed. Schaler argues that we should dismiss due to a lack of sufficient evidence to sustain a conviction. See Burks v. United States, 437 U.S. 1, 11 & n. 6, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (“The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another оpportunity to supply evidence which it failed to muster in the first proceeding.“). We do not agree that dismissal is required.
¶ 30 There was ample evidence from which a reasonable jury could determine that Schaler‘s threats were “true threats.” As discussed above, the evidence at trial was open to interpretation as to whether Schaler‘s threats were “true threats” or a cry for help—but both conclusions were possible.
III. Invited Error
¶ 31 Justice J.M. Johnson‘s dissent argues that Schaler knew about the true threats requirement because he brought a pretrial motion to dismiss based on lack of evidence of a true threat, yet did not request a true threats instruction. The dissent characterizes this as “actively participat[ing] in determining the jury instructions” and “assent[ing] to them.” Dissent (J.M. Johnson, J.) at 873. It criticizes us for allowing Schaler to invite error and then, on appeal, obtain a reversal based on it.
¶ 32 Invited error was not raised by the parties at any point in this litigation. See State v. Studd, 137 Wash.2d 533, 547, 973 P.2d 1049 (1999) (“[W]e are not in the business of inventing unbriefed arguments for parties sua sponte.“). Deciding this case on new grounds never considered by the parties is ill advised, at best. Moreover, the invited-error doctrine as applied to jury instructiоns precludes a defendant from arguing that an instruction he proposed was erroneous. See State v. Henderson, 114 Wash.2d 867, 867-71, 792 P.2d 514 (1990); see also Studd, 137 Wash.2d at 552, 973 P.2d 1049 (allowing the defendant to escape the doctrine if he also proposed an instruction correcting the error); City of Seattle v. Patu, 147 Wash.2d 717, 720, 58 P.3d 273 (2002) (interpreting Studd‘s holding to be that “those defendants who had proposed the erroneous instruction without attempting to add a remedial instruction had invited the error” (emphasis added)); State v. Aho, 137 Wash.2d 736, 744-45, 975 P.2d 512 (1999) (“Under the invited error doctrine, a defendant may not request that instructions be given to the jury and then complain upon appeal that the instructions are constitutionally infirm.” (emphasis added)). The dissent admits that Schaler did not propose the erroneous definition of “threat,” which was not limited to true threats, and did not propose the “to convict” instruction. This case should not be decided on the unbriefed invited-error doctrine.
CONCLUSION
¶ 33 The threats-to-kill provision of the harassment statute must be read in light of the First Amendment to proscribe only “true threats.” The provision therefore requires proof that the defendant was (at least) negligent as to his threats’ effect on listeners. Specifically, the State must establish that a reasonable person in the defendant‘s position would foresee that his statements or acts would be interpreted as a serious expression of intention to carry out the threat. The failure of the instructions at Schaler‘s trial to inform the jury of this requirement was a manifest constitutional error. Furthermore, the error was not harmless because the evidence at trial was open to interpretation. The jury could have concluded that Schaler‘s outbursts were a cry for help and that a reasonable person in Schaler‘s situation would not have foreseen them being interpreted as serious. Alternatively, the jury could have concluded that Schaler‘s utterances constituted a true threat. We therefore reverse Schaler‘s conviction and remand for a new trial.
WE CONCUR: BARBARA A. MADSEN, Chief Justice, CHARLES W. JOHNSON, GERRY L. ALEXANDER, TOM CHAMBERS, and MARY E. FAIRHURST, Justices.
SANDERS, J. (concurring in part and dissenting in part).
¶ 34 I concur with the majority that Glen Schaler‘s conviction should be reversed because
¶ 35 However, I dissent from the majority tо the extent it remands this case for a new trial. A new trial is unnecessary because, as a matter of law, none of Schaler‘s statements here constitutes a “true threat.” There is no remaining issue for the jury to consider on remand, and the
¶ 36 The harassment chapter under Washington law was enacted to “mak[e] unlawful the repeated invasions of a person‘s privacy by acts and threats which show a pattern of harassment designed to coerce, intimidate, or humiliate the victim.”
¶ 37 A “`true threat‘” is “`a statement made “in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted... as a serious expression of intention to inflict bodily harm upon or to take the life of [another individual].“‘” State v. Williams, 144 Wash.2d 197, 207-08, 26 P.3d 890 (2001) (emphasis added) (alterations in original) (quoting State v. Knowles, 91 Wash. App. 367, 373, 957 P.2d 797 (1998) (quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.1990))).
¶ 38 Let‘s view Schaler‘s statements under the accompanying circumstances. If Schaler seriously intended to kill his neighbors, would he (a) go next door to his neighbor‘s home and attempt it, (b) tell his friends, co-workers, or even his neighbors that he was going to kill his neighbors, or (c) call a crisis services hotline and seek help? Circumstance (a) demonstrates intent through action. Circumstance (b), depending upon the accompanying details, may constitute a true threat—a reasonable person might foresee the statements would be interpreted as a serious expression of intent to take another‘s life. However, circumstance (c) would not lead a reasonable person to fоresee such intent because the speaker‘s behavior—seeking help from a crisis services hotline—is entirely inconsistent with actual intent to kill someone. Contacting the hotline implies the individual may have been tempted to cause someone harm. But it also shows the person sought help because he or she did not want or intend to succumb to that temptation and did not want or intend to actually cause harm.
¶ 39 Glen Schaler was a troubled man—no question. During the day, thoughts of killing his neighbors invaded his mind. He woke up from a dream one morning and—not fully able to distinguish fantasy from reality—thought he might have actually killed his neighbors. In fact, he was extremely upset by the thought and, despite his hysterical state of mind, called the crisis services hotline.
¶ 40 He then agreed to accompany a police officer to Mid Valley Hospital. Once there, he was involuntarily committed due to his troubled state of mind—which Director Tonya Heller-Wilson, one of the staff members taking part in Schaler‘s treatment, characterized as “`[v]ery hysterical‘” when he originally called, Trial Tr. vol. II, 269, Feb. 6, 2007—and due to his antagonistic behavior toward staff.
¶ 41 After being involuntarily committed—a restraint that probably did not serve to calm an extremely upset individual—he spoke openly, and very heatedly, to medical professionals, saying he wanted to kill his neighbors. Id. at 248. He said he wanted to strangle them with his bare hands. Id. He also stated, in light of the vivid dream he
¶ 42 A parallel. An alcoholic wants to have a drink. It fills his thoughts during the day. He even has dreams where he does take a drink. None of that means he intends to take a drink. In fact, instead of taking a drink, he attends an Alcoholics Anonymous (AA) meeting. At the meeting he says, “I want to have a drink” and perhaps even, “I‘ve been planning to have a drink and I will sit at the third stool at the Thirsty Scholar Bar and order a Guinness and a shot of Baileys and Jameson.” Under those circumstances—where the individual attended an AA meeting instead of going to a bar, would a reasonable person think the alcoholic seriously intended to have a drink? No. A reasonable person would recognize that the alcoholic is having persistent thoughts about drinking and that he or she is tempted to drink again. But the statements in those circumstances, if anything, express the alcoholic‘s intent not to have a drink, an intent not to give into temptation. So it is with Schaler who, despite his thoughts, sought hеlp to resist a temptation he had previously been struggling with alone.
¶ 43 As a matter of law and under the circumstances presented, Schaler‘s statements do not constitute a true threat. He did not violate
¶ 44 The facts here demonstrate the extent to which
¶ 45 As a practical matter, I cannot help but consider the ridiculous message Schaler‘s conviction would send to the public. How should Schaler have avoided transgressing the law? Should he have stayed at home without calling the hotline for help, hysterical after his dream and wrestling alone with his morbid and obsessive thoughts? Should he have lied to, or refrained from fully sharing his thoughts and feelings with, the professionals who were there to assess his condition and help him, undermining their ability to assess and help him? A person having a mental breakdown should not be subject to criminal charges for harassment while he seeks professional help in earnest.2
¶ 46
J.M. JOHNSON, J. (dissent).
¶ 47 Over a four-hour period, Glеn Schaler threatened to murder his neighbors Kathy
HARMLESS ERROR
¶ 48 The trial court did not include an explicit “true threat” definition in its instructions to the jury, nor was such instruction requested by Schaler. Instead, the trial court gave the jury four separate instructions that, taken together, properly conveyed every aspect of the majority‘s “true threat” definition except one—whether Schaler foresaw that his conduct would be taken by a reasonable person as a true threat.1 This failure is subject to a harmless error analysis. See State v. Johnston, 156 Wash.2d 355, 364, 127 P.3d 707 (2006). “In order to hold the error harmless, we must `conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.‘” State v. Brown, 147 Wash.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder v. United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). According to the majority, the court should have instructed the jury that, to convict, it had to find Schaler negligently failed to foresee that his conduct would be interpreted as a serious expression to kill Nockels and Busbin.2 There is no reasonable doubt that the jury would have made the same finding of guilty had it received this added instruction.3
¶ 50 Schaler repeatedly stated over a four-hour period at the hospital that he wanted to kill Nockels and Busbin. He was specific about the method-strangulation with his bare hands. He gave reasons for wanting to kill the women, including the chain saw incident (that itself led to a police call) and a history of conflicts. He maintained this position despite a mental health specialist‘s efforts tо dissuade him. All of this occurred after Schaler had taken his medication and been in the care of mental health specialists for hours. Schaler showed no remorse for his statements and was able to distinguish between his dream (where he thought he killed Nockels and Busbin) and reality (where he wanted to kill them with his bare hands).
¶ 51 Schaler engaged in further conduct that substantiates his willingness to engage in violent crime. Director Tonya Heller-Wilson had to call Deputy Connie Humphrey back to the hospital twice because of Schaler‘s behavior. While Humphrey was at the hospital trying to assist the mental health staff, Schaler threatened to start a fight and guaranteed “someone [would] get hurt.”4 Verbatim Report of Proceedings (VRP) (Feb. 6, 2007) at 220. Schaler then said that “next time he was going to get a bunch of guns, and it would be [a] blood bath.” Id.
¶ 52 Prior history also shows reason to perceive the threats as real. On June 1, 2005, Schaler had cut a row of the Busbins’ fruit trees with a chain saw. When Nockels asked Schaler to stop, hе raised the chain saw toward her and told her not to interfere. In response to a 911 call by Nockels, Deputy Blake arrived and Schaler stated that someone was going to die. Asked to explain himself, Schaler said that “when he became angry, he did feel like that he wanted to kill someone, and that that was a natural human response.” VRP (Feb. 6, 2007) at 291.
¶ 53 Shortly thereafter Nockels and Busbin obtained restraining orders against Schaler from a court. Within days, Schaler violated at least one such order. Further, after threatening Nockels and Busbin‘s lives on August 10, Schaler ran Nockels’ car off the road with his car.
¶ 54 Nockels and Busbin believed Schaler‘s threats on June 1 and August 10 were genuine and had to adjust their lives in response. Heller-Wilson felt Schaler‘s August 10 threats were genuine and properly exercised her discretion to warn those threatened. Although Schaler tried to invoke the patient-mental health counselor privilege to dismiss the charges or prevent Heller-Wilson from testifying, the trial сourt properly found that Heller-Wilson was statutorily justified in warning Nockels and Busbin and contacting the authorities. See
¶ 56 The policies embodied by the majority‘s opinion are disturbing. First, everyone in this case (except Schaler) did exactly what they were supposed to do. Nockels and Busbin obtained restraining orders. Heller-Wilson probed Schaler‘s mental state and the seriousness of his death threats for hours before warning Schaler‘s victims. Deputy Humphrey assisted Schaler at his home, convinced Schaler to take his medication, and took him to the hospital. Yet the majority declares this was not enough to justify the State acting to protect Nockels and Busbin, despite conduct that clearly signaled danger to their lives.
¶ 57 Second, the majority‘s reliance on Schaler dealing with the mental health expert as support for its conclusion may suggest that Heller-Wilson did not act appropriately in warning the victims or contacting the police. Sound policy favors candor between a therapist and patient, but the legislature has expressly provided deference to therapists’ professional judgment. The trial court denied Schaler‘s motion to exclude statements made to Heller-Wilson from evidence due to the patient-mental health counselor privilege. Schaler did not appeal that decision, and we may not question it here. Heller-Wilson felt Schaler‘s threats were serious enough to warrant intervention, and her judgment is entitled to great deference; lives may depend on it. Today‘s decision unfortunately may dissuade some therapists from appropriate protective reporting.
INVITED ERROR
¶ 58 Schaler‘s conviction should also be affirmed because Schaler invited the error alleged. Schaler argues that the trial court erroneously failed to provide an explicit true threat instruction. However, Schaler did not object to the “threat” instruction given by the trial court or propose an alternate threat instruction despite being clearly cognizant of the supposed shortcoming.6 Schaler thus invited the error he is complaining about.
¶ 59 Under the doctrine of invited error, a party cannot set up an error and then complain about it on appeal. State v. Momah, 167 Wash.2d 140, 153-54, 217 P.3d 321 (2009); State v. Aho, 137 Wash.2d 736, 744-45, 975 P.2d 512 (1999); State v. Henderson, 114 Wash.2d 867, 870, 792 P.2d 514 (1990) (quoting State v. Boyer, 91 Wash.2d 342, 344-45, 588 P.2d 1151 (1979)). This doctrine applies to alleged constitutional violations. See Momah, 167 Wash.2d at 145, 217 P.3d 321 (public trial right); Henderson, 114 Wash.2d at 869, 792 P.2d 514 (due process); F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1204 (10th Cir.2009) (equal protection and free speech).7
¶ 60 The invited error doctrine often arises in the context of parties assigning error to jury instructions they proposed. However, the doctrine is applicable in other contexts. We recently held in Momah that a defendant could not complain about court closure during part of voir dire because the defendant “affirmatively assented to the closure, argued for its expansion, had the opportunity to object but did not, actively participated in it, and benefited from it.” Momah, 167 Wash.2d at 151-52, 217 P.3d 321.
¶ 62 Although Schaler did not propose a faulty instruction, he actively participated in determining the jury instructions and did not object to any relevant instructions; instead, he assented to them. He thus successfully created the very situation the invited error doctrine is designed to prevent: he tries the case and gets a jury verdict; then, if losing, he gets a new trial. We should not condone this strategy.
CONCLUSION
¶ 63 There is no doubt that a reasonable person would have foreseen Schaler‘s statements at the hospital—that he would murder his neighbors by strangulation—would be understood as a true threat. Any error by the trial court in failing to include a foreseeability jury instruction is therefore harmless. Further, Schaler consciously declined to correct the alleged error he now complains of. I would affirm Schaler‘s conviction. I dissent.
WE CONCUR: SUSAN OWENS, Justice.
Notes
Black, 538 U.S. at 348, 123 S.Ct. 1536 (emphasis added). The Court noted at length that the type of intimidation likely to accompany a cross burning was that of bodily harm or death. Id. at 348-58, 123 S.Ct. 1536. No pseudo-element of foreseeability was required for the statute to pass constitutional muster; the actor‘s intimidation intent was dispositive. Our jurisprudence suggesting that the First Amendment requires foreseeability in a true threat analysis thus conflicts with the United States Supreme Court‘s First Amendment jurisprudence.It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place.