State v. Hansen

862 P.2d 117, 122 Wash. 2d 712, 1993 Wash. LEXIS 371

• Court: Washington Supreme Court
• Decided: November 18, 1993
• Docket: 59992-1
• Status: Published

Opinions

Guy, J.

Petitioner Michael Ross Hansen seeks review of a Court of Appeals decision affirming his conviction for the crime of intimidating a judge.

Background

In January 1988, Michael Hansen was convicted of a felony and was sentenced to 24 months in prison by King County Superior Court Judge Robert Dixon. Several months after his release from prison, Hansen began contacting attorneys in order to bring a civil action against the State, Judge Dixon, and Hansen's defense attorney and the prosecutor from the earlier trial.

On March 6, 1990, Hansen telephoned Chris Youtz, an attorney whose name he had obtained from the Seattle-King County Bar Association Lawyer Referral Service, with the stated desire that Youtz would take his case. Hansen explained to Youtz that he felt he had been conspired against, calling the trial a "kangaroo court". During this discussion, Hansen identified by name the prosecutor and public defender, but did not name the judge. Youtz explained to Hansen that he would not take the case and that Hansen might want to seek another attorney with more experience in criminal law. At this point in the conversation, Hansen became upset. Hansen explained that Youtz was the third lawyer he had talked to about the possible action, and he stated that the bar was not helping out with his cause. Hansen then stated:

When you say I am not going to get any help from the Bar, I am not going to get any help from anybody . . . What am I going to do ... I am going to get a gun and blow them all away, the prosecutor, the judge and the public defender.

Report of Proceedings, at 62. Youtz continued to talk to Hansen and finally explained to Hansen that there was nothing else he could do for him.

Youtz, concerned about the "serious threat" that Hansen had made, consulted with a Washington State Bar Association representative and his law partner as to whether it was proper to disclose what Hansen had communicated to him. In order to determine the name of the threatened judge, Youtz contacted the named prosecutor and described his conversation with Hansen. The prosecutor informed Youtz that it was Judge Dixon who had heard the case. Upon learning the judge's identity, Youtz telephoned Judge Dixon and discussed with him what had taken place. Youtz testified during the trial that he "was convinced that some action very well could be taken against these individuals, the prosecutor, the judge and the public defender, and that I was — it was that concern that helped me call them and warn them." Report of Proceedings, at 84.

The Seattle Police Department conducted an investigation and subsequently arrested Hansen and charged him with the crime of intimidating a judge under RCW 9A.72.160. Hansen was convicted of intimidation of a judge and was sentenced to 24 months in prison. Hansen appealed this conviction, contending the trial court erred in its application of RCW 9A.72.160.

The Court of Appeals affirmed the trial court's conviction. State v. Hansen, 67 Wn. App. 511, 837 P.2d 651 (1992). In affirming the trial court's conviction, the Court of Appeals interpreted RCW 9A.72.160 to mean that an individual who threatens a judge does so with the intention or knowledge that the threat will reach the judge. Hansen, 67 Wn. App. at 516. The court found that there was sufficient evidence that Hansen had this intent when he made the threat. Hansen, 67 Wn. App. at 516. The Court of Appeals also held that the attorney-client privilege did not apply. Hansen, 67 Wn. App. . We granted Hansen's petition for review and affirm his conviction.

Issue

At issue in this case is the interpretation of RCW 9A.72-.160(1). RCW 9A.72.160 provides that:

(1) A person is guilty of intimidating a judge if a person directs a threat to a judge because of a ruling or decision of the judge in any official proceeding, or if by use of a threat directed to a judge, a person attempts to influence a ruling or decision of the judge in any official proceeding.

(2) "Threat" as used in this section means:

(a) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or

(b) Threats as defined in RCW 9A.04.110(25).

(3) Intimidating a judge is a class B felony.

(Italics ours.)

In its interpretation of RCW 9A.72.160, the Court of Appeals focused on the language "directs a threat to a judge" from subsection (1) of RCW 9A.72.160. Hansen, 67 Wn. App. at 515. The court noted that a definition of "directs" was absent from the statute. Using the definition of "direct[s]" from Webster's Third New International Dictionary 640 (1969), the Court of Appeals concluded that the word "directs" in RCW 9A.72.160 means that a "threat must be made with the intention or knowledge that it will reach the 'particular destination or object in view', i.e., the judge." Hansen, 67 Wn. App. at 516. The court stated that "[a]ny other interpretation would contradict the common understanding of 'directs' and would not promote the statute's purpose of punishing those who seek to intimidate a judicial officer." Hansen, 67 Wn. App. at 516.

Hansen contends the Court of Appeals properly interpreted RCW 9A.72.160(1), but that the facts did not support his conviction. The State argues that the Court of Appeals' interpretation of RCW 9A.72.160(1) is incorrect insofar as it includes the additional mens rea element that the defendant intend or know the threat will actually reach the judge. We agree with the State that the Court of Appeals incorrectly interpreted RCW 9A.72.160.

"This court has the ultimate authority to determine the meaning and purpose of a statute." State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314 (1992). Our function in interpreting a statute is to discover and give effect to the intent of the Legislature. Stewart Carpet Serv., Inc. v. Contractors Bonding & Ins. Co., 105 Wn.2d 353, 358, 715 P.2d 115 (1986). To fulfill the Legislature's intent, statutes must be construed as a whole, and undue emphasis must not be placed on individual sections of a statute. Finley v. Finley, 43 Wn.2d 755, 761, 264 P.2d 246, 42 A.L.R.2d 1379 (1953). "lb determine the intent of the Legislature, the court 'must look first to the language of the statute.'" Service Employees Int'l Union, Local 6 v. Superintendent of Pub. Instruction, 104 Wn.2d 344, 348, 705 P.2d 776 (1985) (quoting Condit v. Lewis Refrigeration Co., 101 Wn.2d 106, 110, 676 P.2d 466 (1984)).

In interpreting RCW 9A.72.160(1), we must determine if the Legislature intended the statute require that a threat must be made with the intent or knowledge that it will reach the judge. We hold that RCW 9A.72.160 does not include such a requirement.

We determine that the legislative intent behind RCW 9A.72.160(1) is to protect judges from the threat of harm due by retaliatory acts because of past official actions by a judge.¹ Under the Court of Appeals' interpretation, the scope of RCW 9A.72.160 would not encompass true threats² to harm a judge that are made without an intent or knowledge that such threats would reach the threatened judge. This result is contrary to the Legislature's intent to protect judges from retaliatoiy acts. Such a result also negates the effect of the language from subsection (2) of RCW 9A.72.160.

Subsection (2)(a) of RCW 9A72.160 includes a definition of the word "threat" and subsection (2)(b) incorporates a more expanded definition of threat from RCW 9A.04.110(25) into RCW 9A.72.160. A threat can thus be defined as a communication made directly or indirectly with the intent immediately to use force against any person or to cause bodily injury in the future to the threatened person or any other person. RCW 9A.72.160(2)(a); RCW 9A.04.110(25)(a). This language evidences a clear intent by the Legislature that RCW 9A72.160 include threats communicated in an indirect fashion as well as direct threats. To carry out this legislative intent and realize the proper interpretation of RCW 9A.72.160, the statute must be construed as a whole by incorporating the definition of threat into subsection (1) of the statute. Under this interpretation, whoever threatens a judge, either directly or indirectly, e.g., through a third person, because of an official ruling or decision by that particular judge, is chargeable under RCW 9A.72.160. The threat may ultimately find its way to the judge, but that is irrelevant with regards to the commission of the crime.

Sufficiency of the Evidence

Hansen contends there was insufficient evidence to find a violation under RCW 9A.72.160. Hansen bases this contention on the premise that there was no evidence presented at trial which established Hansen intended or knew his threat would reach the judge.

A challenge to the sufficiency of evidence requires the reviewing court to consider the evidence in the light most favorable to the State, and the court must reject the challenge if a rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Spruell, 57 Wn. App. 383, 385, 788 P.2d 21 (1990).

Because we conclude RCW 9A.72.160(1) does not require that the defendant's threat must be made with the intent or knowledge that the threat reach the judge, no evidence is required to prove such intent. Therefore, the elements required to be proven under RCW 9A.72.160(1) are: (1) that a person directs a threat, either directly or indirectly; (2) to a judge; and (3) because of a ruling or decision by that judge in any official proceeding.

In the present case, the record supports the trial court's finding that these elements were present. The elements are established by Hansen's statement to Youtz that he was going to "get a gun and blow [the judge] away." This satisfies both the first element, as it was a threatening statement made indirectly, i.e., to a third party, and the second element, since the judge was one of the objects of the threat. The third element is proven by the fact that Hansen made the threat because of Judge Dixon's earlier official action when Hansen was convicted of a felony. Viewing the evidence most favorably to the prosecution, a rational trier of fact could find all the elements of RCW 9A72.160(1) beyond a reasonable doubt. Therefore, we conclude there was sufficient evidence introduced at trial to prove that Hansen was guilty of intimidating a judge under RCW 9A.72.160.

Attorney-Client Privilege

Hansen next argues that he should not be subject to culpability due to his reasonable belief that he was engaged in a confidential and privileged conversation when he made the threat. Hansen asserts there was no evidence presented of Youtz telling him that the conversation between Youtz and himself was not privileged or confidential.

The Court of Appeals concluded that the attorney-client privilege could not be claimed in this case. The court's basis for this conclusion was that the attorney-client privilege cannot be claimed after an attorney refuses to represent an individual since no attorney-client relationship was in existence. Hansen, 67 Wn. App. at 517. The Court of Appeals also stated that even if an attorney-client relationship had existed, no privilege would apply to the communication in question since it involved the commission of a crime. Hansen, 67 Wn. App. at 517-18. The court reasoned that Hansen's threat was serious enough "to justify discarding the [attorney-client] privilege in order to protect Hansen's potential victims." Hansen, 67 Wn. App. at 518.

We agree with the Court of Appeals in both regards. An attorney-client relationship is deemed to exist if the conduct between an individual and an attorney is such that the individual subjectively believes such a relationship exists. In re McGlothlen, 99 Wn.2d 515, 522, 663 P.2d 1330 (1983). However, the belief of the client will control only if it "is reasonably formed based on the attending circumstances, including the attorney's words or actions." Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992).

In this case, the "attending circumstances" cannot form the basis for a subjective belief that an attorney-client relationship existed. Hansen's total contact with Youtz consisted of one phone call. The conversation consisted of Hansen expressing a desire to bring certain individuals to trial, to which Youtz explained that he would not take Hansen's case and that Hansen might be better off finding another attorney. There was no evidence which could have led Hansen to believe that an attorney-client relationship existed. Arguendo, even if an attorney-client relationship had existed, it would have ended when Youtz explained to Hansen that he should seek another attorney. Therefore, on the record before us, there are not sufficient grounds to find that an attorney-client relationship existed.

If an attorney-client relationship could have been found to exist when Hansen made the threat against the judge, the prosecutor, and the public defender, the privilege would still not apply. The attorney-client privilege is not applicable to a client's remarks concerning the furtherance of a crime, fraud, or to conversations regarding the contemplation of a future crime. State v. Richards, 97 Wash. 587, 167 P. 47 (1917); State v. Metcalf, 14 Wn. App. 232, 540 P.2d 459 (1975), review denied, 87 Wn.2d 1009 (1976). Hansen's statement that he was going to blow away the judge, prosecutor and public defender falls under this excéption to the attorney-client privilege.

Under the Rules of Professional Conduct, an attorney is permitted to reveal information concerning a client's intent to commit a crime. "A lawyer may reveal. . . confidences or secrets to the extent the lawyer reasonably believes necessary . . . [t]o prevent the client from committing a crime". RPC 1.6(b)(1).³

To decide this case, we must determine whether an attorney has an affirmative duty to warn judges of true threats made by his or her client or by third parties. Whether a threat is a true or real threat is based on whether the attorney has a reasonable belief that the threat is real. We hold that attorneys, as officers of the court, have a duty to warn of true threats to harm members of the judiciary communicated to them by clients or by third parties.

We recognize the Court of Appeals in Hawkins v. King Cy., 24 Wn. App. 338, 602 P.2d 361 (1979) declined to find a common law duty on the part of an attorney to warn of a client's intent to inflict serious injury on a third person. Hawkins is distinguishable from the present case. In Hawkins, the threatened third party had notice of the potential danger. 24 Wn. App. at 345. In the present case, Hansen threatened a judge who was unaware of the possible danger. We conclude that attorneys, as officers of the court, have a duty to warn of true threats to harm a judge made by a client or a third party when the attorney has a reasonable belief that such threats are real. Youtz followed this duty by warning Judge.Dixon of Hansen's threat.

Court of Appeals' Paraphrase of RCW 9A.72.160

Finally, Hansen argues that the Court of Appeals impermissibly broadened the scope of RCW 9A.72.160 in footnote 3 of its opinion. The Court of Appeals there stated;

Clearly, Hansen's threat was motivated by his belief that, "in discharging his official role as a judge", Judge Dixon was a participant in the wrong inflicted upon him.

Hansen, 67 Wn. App. at 516 n.3.

Hansen contends that the "discharging his official role as a judge" language has the effect of expanding RCW 9A.72-.160 beyond its allowed scope.

The majority, of case law pertaining to the paraphrasing of statutes applies to the paraphrasing of statutory language in jury instructions. See State v. Faucett, 22 Wn. App. 869, 593 P.2d 559 (1979); State v. Toliver, 6 Wn. App. 531, 494 P.2d 514 (1972). A jury instruction containing a paraphrased statute is sufficient if the instruction, when construed' as a whole, correctly states the law. Faucett, 22 Wn. App. at 872.

We conclude the Court of Appeals correctly stated the law since the language "discharging his official role as a judge" similarly reflects the "ruling or decision of the judge in any official proceeding" element from RCW 9A.72.160(1). Therefore, footnote 3 of the Court of Appeals' opinion does not broaden or make impermissibly vague RCW 9A.72.160.

Conclusion

We reject the Court of Appeals' interpretation of RCW 9A.72.160 which requires the State to prove a defendant knew or intended his threat to reach a judge and hold that the proper interpretation of RCW 9A.72.160(1) is that whoever threatens a judge, either directly or indirectly, because of an official ruling or decision by that judge may be charged with intimidation of a judge. We affirm Hansen's conviction.

Brachtenbach, Dolliver, Durham, and Smith, JJ., concur.

1 A similar purpose was found behind the statute protecting federal judges and their families in United States v. Berki, 936 F.2d 529 (11th Cir. 1991), cert. denied, 118 L. Ed. 2d 395 (1992). That court, in applying 18 U.S.C. § 115(a)-(1)(B), which makes criminal threats to harm a federal judge, stated that section 115(a)(1)(B) "was not enacted to prevent obstructions of justice, but solely to 'give [sufficient] protection to the [judges] enforcing an impopular law.' " Berki, 936 F.2d at 532 (quoting United States v. Feola, 420 U.S. 671, 684, 43 L. Ed. 2d 541, 95 S. Ct. 1255 (1975)).

2 A true threat "is a serious one, not uttered in jest, idle talk, or political argument." United States v. Howell, 719 F.2d 1258, 1260 (5th Cir. 1983), cert. denied, 467 U.S. 1228 (1984).

3 See also Model Rules of Professional Conduct 1.6(b)(1): "A lawyer may reveal such information to the extent the lawyer reasonably believes necessary... to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm . . .".