Michigan Witness-Retaliation-by-Threats Law Requires Intent to Threaten Physical Injury (or Crime)

Starting at People v. Johnson, a verdict of the Michigan Court of Appeals on last week. It was written by Jane Markey (presiding judge) and included Judges Douglas Shapiro.

The jury found defendant guilty of resisting and obstructing an officer (MCL 750.81d(1)) in March 2018. Also, the jury found him guilty of allowing his dog to run loose. The convictions were affirmed by the Court. They stemmed from an incident that involved defendant’s dog, and an altercation between defendants and police officers who responded to calls about a dog running loose. Multiple witnesses gave testimony at the earlier trial about what led to defendant’s conviction.

BP was 14-years-old at the time. BP testified that he encountered a three-legged white pit bull—the dog at issue—as BP walked to a clinic for a physical therapy appointment. BP testified further that the dog barking and chasing him was his reaction. BP was scared that the pit bull would bite him. Eventually, someone called back the dog and BP was able safely to enter the clinic. A video was shown to the jury of BP’s interaction with the dog.

Defendant tried to impeach BP’s testimony during trial with video footage and a written confession that BP provided to police. BP’s movement during certain segments of the episode was not what defendant wanted to impeach. Any alleged discrepancies in BP’s story of the events did not have any bearing on defendant’s dog straying from its leash, or whether defendant resisted/obstructed responding officers. In May 2018, defendant was sentenced to 12 months in jail for the resisting-or-obstructing conviction and three months in jail for the stray-dog conviction.

Concerning the immediate charge and conviction on May 29, 2019, defendant was released from prison after sending a Facebook Messenger message to BP. The defendant also admitted to sending the message through Facebook Messenger.

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You lying sht pc, you should be proud. I was sentenced to a year imprisonment for my fkn lies. The video clearly shows that u didn’t walk to the clinic and weren’t being chased by dogs. You also ran so fast into the clinic because you were scared the dog might bite you. Your writing skills are not good enough to know the differences between right or wrong. Karma will fuck you for all the lies you told and the damage you did to me by your choice of lying. It is a shameful act. I wish u suffered a terrible death, causing u and your family extreme pain. Fk you and your family. Eat shit and starve yourself. I’d like to give you a hug and show how much my family and I appreciate all of your lies when ur 18 years old. You are a fkn.

The prosecutor charged the defendant with witness repeal under MCL.750.122(8).

Person who attempts, retaliates, or threatens retaliation against another person because they were witnesses in an official proceeding is guilty if a felony. This can lead to imprisonment of up to 10 years, a fine not exceeding $20,000.00 or both. Retaliation, as used in the subsection, means to take any action that is listed below:

(a.) Commit or try to commit any crime against another person.

(b) To threaten or kill any person, or to cause damage to property.

Prosecution’s case focused on language contained in subsection (8) (b) of statute. The prosecutor argued the defendant retaliated to BP for earlier testimony, threatening to injure or kill BP through Facebook Messenger.

According to the court:

  1. Because the jury received incorrect instructions regarding mental states required for “Threaten to murder” prong, the case should be overturned. The jury should have been informed that they must prove intent to menace. This is a subject that courts across the nation differ on. It concerns threat laws in general. In particular, whether it requires evidence of intent or knowledge (or recklessness), or negligence about the likelihood that the statement will be perceived. Supreme Court 2015 S. V. Elonis Justice Thomas asked the Court for a resolution of the First Amendment separation in 2020. Kansas v. Boettger Justice Sotomayor, in 2017, did the same. Perez v. FloridaThere were not enough votes to allow the Court to hear it, so dissent was allowed. It was not required to address the First Amendment issue because of the way the Michigan court had interpreted it.
  2. This case needs to be remanded and retried for a fresh trial.[When the sentence] ‘when ur 18, Id love to show u how much I and my family appreciates your fkn lies’ … is viewed in conjunction with … defendant’s hope that BP suffers ‘an extremely horrible death’ and that BP ‘deserves to have his fkn tongue cut off,’ a juror could reasonably infer that defendant was threatening to ‘kill’ or ‘injure’ BP for having testified against defendant in the earlier prosecution.”
  3. To be considered a threat-to injure, you must threaten to cause a serious physical injury. The judge answered the question of the jury and said that mental injuries were sufficient. This is an independent reason for the judge to reverse.

Judge Amy Ronayne Krause concurred. While she acknowledged that there must be an intention to threaten the law, she felt that the jury instructions were clear and concise. And she thought the judge improperly responded to the jury question about threats to inflict mental injury (which in her mind justified a retrial), but reasoned that threats to inflict mental harm—including threats to injure “a person’s reputation or mental state”—are indeed punishable.