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                                Appellate Court                           Date: 2019.07.18
                                                                          12:53:20 -05'00'



                   People v. Wood, 2017 IL App (1st) 143135



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            ALEXANDER WOOD, Defendant-Appellant.



District & No.     First District, First Division
                   Docket No. 1-14-3135



Filed              November 20, 2017
Rehearing denied   January 9, 2018



Decision Under     Appeal from the Circuit Court of Cook County, No. 13-CR-7597; the
Review             Hon. Maura Slattery Boyle, Judge, presiding.



Judgment           Reversed.


Counsel on         Michael J. Pelletier, Patricia Mysza, and Daniel T. Mallon, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Joseph Alexander, and David Welch, Assistant State’s Attorneys, of
                   counsel), for the People.



Panel              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.

¶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 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



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       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 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 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 United States 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


                                                     -3-
       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 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.
¶ 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


                                                    -4-
       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 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 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.”


                                                    -5-
¶ 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 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 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.


                                                   -6-
¶ 29                              CONCLUSION
¶ 30   Accordingly, we reverse.

¶ 31   Reversed.




                                     -7-
