Wouldn’t It Be Nice?

By Donald M. Kreis

State v. Johnstone, 2013 VT 57

This is a case about exasperation and its consequences.  Life under the constant supervision of a probation officer is frustrating. But you have to be careful what you say, lest a few improvident words require a divided Vermont Supreme Court to undo the consequences.

Like every person in Vermont who spends time on probation after committing a crime, the defendant in today’s case was subjected to a standard condition—known as “Condition M”—that is almost refreshing in its brevity:  “Violent or threatening behavior is not allowed at any time.”  This defendant explicitly agreed to live with Condition M, because he accepted it as a part of a plea deal (in connection with what the Court merely characterized as “several charges stemming from different incidents”).

Three months later, defendant stood accused of various probation violations and he appeared in court for arraignment.  The arraignment was testy but otherwise uneventful, in contrast to what occurred thereafter.  Defendant left the courthouse and, just outside, got into a shouting match with his ex-girlfriend in which, among other things, he yelled that his probation officer was “going to end up in a body bag.”

Unfortunately for the defendant, just then his probation officer happened upon the scene, having left the building from another entrance.  Although there was no evidence that defendant had any idea the probation officer was within earshot, he found himself formally accused of violating Condition M.  He admitted to the facts and appealed the conviction.

On appeal, the Vermont Supreme Court reversed by a vote of 3-2.  The Court concluded that because there was no evidence he intended to put the probation officer in fear of harm, or to convey a message of actual intent to harm, this act of “mouthing off” was not the kind of threatening behavior prohibited by Condition M.

This is actually the third time in as many years that the SCOV has found it necessary to reverse a Condition M conviction.  In State v. Miles, a delusional defendant told a nurse in a mental health facility that he wanted to kill “someone named Bill from Evergreen” because “earth goddess” had told him it was okay.  In State v. Sanville, the defendant had a “mouthy and obnoxious” series of arguments with his landlord.  And now we have the body bag comment to the ex-girlfriend.  Clearly, the Court does not like Condition M.

Indeed, although nothing prohibits Justice Dooley from venting about body bags as he leaves the courthouse after work, he chose the more constructive route of writing a concurrence, joined by the specially assigned Judge Kupersmith, in which Justice Dooley congenially mused:  “Wouldn’t it be nice if this were the last decision of this Court on the meaning of Condition M because Condition M is amended to eliminate the interpretation questions?”

In dissent, joined by Chief Justice Reiber, Justice Burgess was less congenial.  He simply doesn’t buy the notion that defendant had no idea his comment would be perceived as threatening or that, as shouted loudly outside a courthouse right after a hearing, might well be heard by its subject.  This was no mere mouthing off in the State v. Sanville sense, according to the dissent.  Nor does he buy Justice Dooley’s claim that Condition M needs a re-write, musing that the meaning of “violent or threatening behavior” is “not so opaque as to compel ordinary readers to consult their law libraries to divine its mysteries.”

“What is it about an antagonist, known to be assaultive, declaring loudly in a public place that the officer would end up dead that is not threatening?,” fumes the clearly exasperated dissent.

It is as close as one gets, in the pages of reported Vermont case law, to the kind of anger that got this defendant in trouble in the first place.