People v. Wood , 430 Ill. Dec. 765 ( 2017 )

2017 IL App (1st) 143135No. 1-14-3135
FIRST DIVISION
November 20, 2017
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
_________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 13 CR 7597
)
ALEXANDER WOOD, )
) Honorable Maura Slattery Boyle
Defendant-Appellant. ) Judge Presiding.
JUSTICE SIMON delivered the judgment of the court, with opinion.
Justices Harris and Mikva concurred in the judgment and opinion.
OPINION
¶1 In a fit of exasperation with his legal and financial troubles, defendant Alexander Wood
called the public defender’s office and left a crude and offensive rant about how much he hated
everyone involved in his legal case. He stated that he dreamed every day about revenge, and he
singled out the judge presiding over his case, stating that he hoped for the judge’s death and
destruction. Defendant was charged and convicted of threatening a public official. We hold that
defendant did not make a true threat as a matter of law and that the State failed to prove defendant
knowingly transmitted any communication to the judge.
No. 1-14-3135
¶2 BACKGROUND
¶3 In 2012, defendant was on probation, and the judge presiding over his case was Judge
Anthony Calabrese. Defendant was represented by a public defender for at least one court
appearance while on probation, but he had a private attorney for other appearances. At a court
appearance in October 2012, defendant moved the court to terminate his probation or alternatively
to transfer his probation to Virginia. Defendant informed the court that he wanted to marry a
woman who was in the Navy and was stationed there. Following a hearing, Judge Calabrese denied
the motion.
¶4 Defendant was fired from multiple jobs and had difficulty meeting his probationary
financial requirements, and he blamed the terms of his probation for his hardship. Even though his
probation was set to be terminated in April 2013, defendant figured he would not be released from
his probation because he could not afford the fees. Frustrated one night in March 2013, defendant
looked up the public defender’s phone number and left a voicemail.
“There is not a day that goes by since I was sentenced at that courthouse that
I have not dreamed about revenge and the utter hate I feel for the judge, and the
utter hate I feel for the prosecuting attorney, and the utter hate I feel for the
corporation that bound me in chains. There’s not a day that goes by that I don’t pray
for the death and destruction upon the judge and upon every single person who
sentenced me, and in front of witnesses, in front of everyone, and my utter hatred of
you and of every other attorney there. You make me sick to my motherfucking
stomach. And I hate you. And I hate the prosecuting attorney. And I hate Judge
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Calabrese. And I hate you all so very, very much. For the evil you did is
un-freaking speakable and the lack of remorse I feel is because of the injustice done
to me. You all can suck it because I hate you all with the bottomless, deepest hate of
my heart.”
¶5 Five days later, Assistant Public Defender Barry Horewitch went to Judge Calabrese’s
courtroom, and while the judge was on the bench, told the judge that he needed to speak to him
about something important. Horewitch told Judge Calabrese about the voicemail and then played
the voicemail for the judge in the presence of an assistant State’s Attorney. At that time, no one
knew the identity of the person that left the voicemail.
¶6 The judge alerted the sheriff in charge of security and his supervising judge. A police
officer was assigned to investigate. Judge Calabrese testified at trial that he took the voicemail as a
threat. He changed his routine, would not stay at the courthouse after hours, and was otherwise
vigilant. He was scared for his own safety and that of his family. About three weeks after the call
was made and two weeks after the judge heard the message, defendant was identified as the caller.
¶7 Defendant was arrested and charged with threatening a public official. He admitted making
the call, but claimed it was not a threat. He claimed he was overwhelmed by his legal troubles and
wanted to tell the public defender exactly how he felt. He claimed that he never intended the
message for the judge nor did he think the judge would ever hear it.
¶8 Prior to this incident, in September 2011, defendant was fired from his position at a
marketing agency on the recommendation of one of his coworkers. That coworker testified in this
case that after defendant was fired, defendant called him on the phone and threatened to kill him
and his family. Defendant pled guilty to telephone harassment in that case and was sentenced to
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two years probation. That term of probation is the one that was ongoing when defendant made the
call to the public defender’s office that is the subject of this case.
¶9 Following a jury trial, the jury found defendant guilty of threatening a public official. The
trial judge sentenced defendant to two years in prison. Defendant appeals.
¶ 10 ANALYSIS
¶ 11 To sustain a conviction for threatening a public official, the State must prove three
elements beyond a reasonable doubt: (1) that defendant knowingly and willfully communicated,
directly or indirectly, a threat to a public official; (2) that the threat would place the public official
in reasonable apprehension of immediate or future bodily harm; and (3) that the threat was related
to the official’s public status. People v. Kirkpatrick, 365 Ill. App. 3d 927, 930 (2006); 720 ILCS
5/12-9(a)(1)(i) (West 2012).
¶ 12 Defendant does not challenge the fact that Judge Calabrese is a public official or that the
communication was conveyed in relation to Judge Calabrese’s status as a public official. However,
defendant argues that his conviction should be reversed because he did not convey any
communication to Judge Calabrese at all, either directly or indirectly, and because the content of
the communication was not a true threat.
¶ 13 We begin by analyzing whether defendant even made a threat to Judge Calabrese. A
“threat” is “[a] communicated intent to inflict harm or loss on another or on another’s property.”
Black’s Law Dictionary 1618 (9th ed. 2009). In interpreting the statute for the offense of
threatening a public official, we have held that intentionality on the defendant’s part is required.
People v. Dye, 2015 IL App (4th) 130799, ¶ 10. Intentionality in this context means that, for a
conviction for threatening a public official to stand, the threat must be a “ ‘true threat.’ ” Id. A true
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threat is a communication in which “ ‘the speaker means to communicate a serious expression of
an intent to commit an act of unlawful violence to a particular individual or group of individuals.’ ”
(Emphasis added and in original.) Id. ¶ 9 (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)).
Under recent Supreme Court precedent, statutes criminalizing speech for being threatening require
proof that the speaker intends the communication to be a threat and that a reasonable listener
would understand the communication to be threatening. Elonis v. United States, 575 U.S. ___, 135
S. Ct. 2001, 2011 (2015).
¶ 14 Again, the part of the defendant’s communication that the State principally relies upon to
argue in favor of upholding the conviction is defendant’s statement that “there is not a day that
goes by since I was sentenced at that courthouse that I have not dreamed about revenge and the
utter hate I feel for the judge” and “there’s not a day that goes by that I don’t pray for the death and
destruction upon the judge.” Neither of those statements individually nor the communication in its
entirety threatens “immediate or future bodily harm, sexual assault, confinement, or restraint.” See
720 ILCS 5/12-9(a)(1)(i) (West 2012). Neither of the statements nor the communication in its
entirety contains a “serious expression of an intent to commit an act of unlawful violence to a
particular individual.” Black, 538 U.S. at 359.
¶ 15 A person expressing a dream for revenge is not the same as an expression that the person
intends to undertake physical retaliation or commit violence. As in Dye, where the defendant
repeatedly stated to a public defender “I’m gonna get you” (Dye, 2015 IL App (4th) 130799, ¶ 11),
dreaming about revenge in no way proves that defendant was communicating an intent to seek
violent retribution. Defendant made no actual threat of undertaking any act related to his dream for
revenge. In the same way, praying for the death and destruction of the judge does not amount to a
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threat that defendant is going to do anything so that his prayers are realized. The statements are not
“serious expression[s] of an intent to commit an act of unlawful violence to a particular
individual,” as the Supreme Court requires for criminalizing such speech. See Black, 538 U.S. at
359. Defendant never said he was going to do anything—just that he hoped and prayed bad things
would befall those that he felt had wronged him.
¶ 16 The State argues that the circumstances surrounding the phone call show that defendant
intended to make a threat and that a reasonable person could construe the communication as a
threat. The circumstances surrounding the threat are obviously important. Watts v. United States,
394 U.S. 705, 708 (1969) (per curiam). The State points out that defendant was admittedly upset
with Judge Calabrese’s ruling and that he called after-hours, from a blocked number, and did not
leave his name. The State emphasizes that defendant mentioned Judge Calabrese by name in the
message. Judge Calabrese also testified cogently about his subjective apprehension after the
message was played for him by the assistant public defender. He became suspicious of others and
was scared for the safety of himself and his family. Defendant also had a previous conviction for
threatening a former coworker on the phone.
¶ 17 While unsettling, the context elucidated by the State does not transform the remarks into a
true threat. When reviewing the record, there is no evidence justifying a reasonable inference that
defendant intended to convey the idea of violent retribution. See Dye, 2015 IL App (4th) 130799,
¶ 12. Hypothetical and aspirational statements are not true threats as a matter of law. See, e.g.,
United States v. O’Dwyer, 443 F. App’x 18, 20 (5th Cir. 2011). Even back to the basic dictionary
definition, defendant did not communicate an “intent to inflict harm.” He did not communicate an
intent to do anything.
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¶ 18 The case the State relies upon that best supports its position is People v. Peterson, 306 Ill.
App. 3d 1091 (1999). In Peterson, the defendants sent three letters, alternatively signed by
“Almighty God’ ” or by themselves as “ ‘Servants of Almighty God.’ ” Id. at 1095. The letters
contained statements such as “ ‘I can kill all your servants if you like now, or we can end this now
by paying [defendants] for their losses and then some, or else you will lose your life, for your time
is short also.’ ” Id. Another letter demanded $8 million and indicated that “If this is not done and
you don’t want to participate, my Father, God Almighty, shall take your life now, today. *** This
is your last chance—do or die—for your father has already made arrangements with my Father, for
if you double cross us at any time, your life will be taken.” Id. at 1095-96. The letters were sent to
litigation adversaries and to three judges. Id. at 1095-97. There were more than a dozen death
threats issued, but most of them were attributed to God rather than defendants.
¶ 19 On appeal, the defendants argued that they did not make true threats because they only
stated that God would kill the recipients if they did not do what the defendants demanded, not that
the defendants themselves would do anything. Id. at 1099. We rejected that argument and found
the threats to be unmistakably hostile and that the acts defendants wanted the recipients to perform
were clearly specified, as were the consequences of noncompliance. Id. at 1101.
¶ 20 Aside from the fact that the Petersons were convicted for a different crime—the offense of
intimidation (720 ILCS 5/12-6 (West 2012))—this case is readily distinguishable. Defendant here
never said that anybody or anything was going to kill the judge. Defendant also made no demands
and did not threaten harm for a failure to meet those demands. Defendant did not threaten
anything. In Peterson, not only did the letters sometimes expressly say that the Petersons would
take action, even their threats about what God would do were transparent attempts to communicate
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the consequences for noncompliance that would befall the recipients if the Petersons did not get
what they wanted.
¶ 21 A couple examples, though obviously not binding in any way, show why the
communication made by defendant cannot be considered a crime. Insults accompanied by
statements such as “I hope you die,” without more, are not threats at all, let alone true threats.
People v. Winsbarrow, No. 2015NY021032, 2015 WL 5448240, at *3 (N.Y. Crim. Ct. Sept. 17,
2015). Such statements do not warn the recipient of any sort of future harm, and they lack the
requisite specificity to make them susceptible to criminalization. Id. Where a disgruntled inmate
wrote a letter to prison officials expressing that he “ ‘hope[s] you bastards die a violent death.’ ”
The court explained that the phrase “taken in context, however, does not constitute a conditional or
actual threat, but expresses a desired outcome without insinuating or otherwise suggesting that the
speaker will engage in a course of conduct likely to increase the probability of the desired
outcome.” Griffin v. Lockett, Civil No. 1:CV-06-02445, 2009 WL 179685, at *5 (M.D. Pa. Jan. 26,
2009). Or when a student posted a list of names on a website under the heading “ ‘people I wish
would die,’ ” the court held that disciplinary action against the student constituted a first
amendment violation because there was no actual threat made against any of the people named on
the website. Mahaffey ex rel. Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 786 (E.D. Mich. 2002); see
also Bauer v. Sampson, 261 F.3d 775, 784 (9th Cir. 2001) (illustrations and writings depicting
fantasies of revenge and destruction are not true threats).
¶ 22 The same result must apply here. While distasteful, inept, and crude, defendant’s statement
is not criminal. It is a vague, hyperbolic statement expressing defendant’s feelings, not making a
true threat. The State cannot criminalize a defendant’s hope that a judge dies, even if the defendant
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articulates those hopes. The State cannot criminalize a defendant’s dream for revenge unless,
along with that expressed dream, the defendant seriously expresses an intention to commit an act
of unlawful violence to fulfill his dream. There was no such expression in this case. The referenced
statements do not warn of any future harm. They are vague and ambiguous; they do not indicate
defendant has the means to carry out a threat; they do not indicate any actual intent to carry out a
threat or any intent to affirmatively do anything. The lack of specificity and the lack of an
expression that defendant had any intention to do anything makes it impossible to find defendant’s
rant to be “a serious expression of an intent to commit a violent act.”
¶ 23 In addition to there not being a threat that would permit the criminalization of the speech,
the State did not introduce any evidence that defendant knew that the purportedly threatening
statements he made about the judge would be conveyed to judge. The statute for threatening a
public official requires proof that defendant knowingly and willfully communicated, directly or
indirectly, a threat to a public official. 720 ILCS 5/12-9(a)(1) (West 2012).
¶ 24 People v. Garcia, 2015 IL App (2d) 131234, supports the State’s position. In Garcia,
defendant directed profanities at the sitting judge, and the judge held defendant in contempt of
court. Id. ¶ 2. While defendant was being remanded to custody to be transported to jail, he made
several threats of violence against the police and threatened to kill the judge. Id. ¶ 3. Defendant
was found guilty of threatening a public official. On appeal, defendant argued that he could not be
convicted of threatening a public official because he only made the comment about the judge, not
to the judge. Id. ¶ 9. Noting that the statute permitted a conviction when the threat was made
indirectly to the official, we held that “[b]y making threatening statements in the presence of
personnel of law-enforcement agencies, who reported the threats to a police officer, who informed
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the public official about whom the threats were made, defendant indirectly conveyed the threats to
the public official.” Id.
¶ 25 The court further explained that the failure to “specifically request that a threat be passed
along to the target does not preclude the possibility of circumstances existing that would nearly
guarantee that the threat would be conveyed to the target.” Id. ¶ 10. The court continued, “[h]ere,
the jury could reasonably infer that it was a practical certainty that threats against a judge, made in
the presence of personnel of law-enforcement agencies, would be brought to the judge’s
attention.” Id.
¶ 26 However, this case is different in important ways. Defendant made a phone call to the
public defender’s office and left a message on the public defender’s office’s voicemail. The public
defender is not law enforcement like the officers to whom the threats were made in Garcia. In
addition, the phone number for the judge’s chambers is listed publicly. Instead of calling the judge
to make a “threat” against the judge, defendant Googled the public defender’s office and called
there instead. If defendant wanted to knowingly convey a threat to the judge, he had the
opportunity. Defendant specifically testified that he intended to convey his message and his
dissatisfaction to the public defender, not Judge Calabrese. In the message, defendant repeatedly
refers to the public defender as “you” indicating that he knew who he was addressing and who the
intended recipient of his message was.
¶ 27 The State offered no evidence that defendant intended for the judge to hear this
communication. On the flip side, defendant testified that he did not intend for the judge to hear the
communication and specifically chose the public defender because he thought he could air his
grievances confidentially. Defendant testified that he wanted to tell the public defender exactly
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how he felt. There was nothing in the message suggesting that defendant wanted it to be delivered
or conveyed to anyone else.
¶ 28 The State offered no evidence that defendant knew his statement would be communicated
to the public official in question—Judge Calabrese. However, the State argues that, like in Garcia,
there was a practical certainty that the public defender’s office would relay the message to Judge
Calabrese. There is a difference between the public defender feeling obligated to alert the judge
about the message and defendant knowingly transmitting a threat to the judge. The evidence at trial
proved the former, but not the latter.
¶ 29 CONCLUSION
¶ 30 Accordingly, we reverse.
¶ 31 Reversed.
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