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77 Table of Contents
77.16 Stalking
77.16.3 Stalking: Defenses And Defense Theories
77.16.3.1 Stalking: Defense Theory That The Number Of Acts
Committed Did Not Constitute A "Pattern," "Series" Or "Course Of Conduct"
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77.16.3.1 Stalking: Defense Theory That The Number Of Acts Committed Did Not Constitute A "Pattern," "Series" Or "Course Of Conduct"
PRACTICE NOTE: A statute which imposes criminal liability for a "pattern," "series" or "course of conduct" may implicate 14th Amendment Due Process and vagueness principles unless construed to require a specific minimum number of acts. (See Lanzetta v. New Jersey (1939) 306 US 451, 453 [59 SCt 618; 83 LEd 888]; People v. Soto (CA 1985) 171 CA3d 1158, 1162-64 [217 CR 795]; see also Kolender v. Lawson (1983) 461 US 352, 357-60 [103 SCt 1855; 75 LEd2d 903].) The due process requirement of definiteness is violated by a criminal statute that fails to provide adequate notice to a person of ordinary intelligence that his or her contemplated conduct is unlawful. (U.S. v. Valenzuela (1979) 596 F2d 1361, 1367 (Citations)). For example, in People v. Green (CA 1991) 227 CA3d 692, 698 [278 CR 140] the court concluded that the term "pattern of criminal gang activity" (California Penal Code § 186.22(e)) is not unconstitutionally vague because it is specifically defined by the statute as inter alia the commission of two or more specific offenses. (Green, 227 CA3d at 703.) In so doing, the court relied on U.S. v. Campanale (9th Cir. 1975) 518 F2d 352, 364, which addressed a vagueness argument in the context of the RICO statutes, which employ the phrase "pattern of racketeering activity." The federal court held: "It is true that, if undefined, terms such as 'pattern of racketeering activity’ would be unmanageable. Any ambiguity is cured by 18 USC 1961, which defines 'racketeering activity’ with reference to specific offenses, [and] 'pattern of racketeering activity’ with reference to a definite number of acts of 'racketeering activity’ within a specified time period." [Emphasis added.] (Ibid.)
Similarly, the Ninth Circuit has consistently held that the phrase "continuing series of violations" for purposes of the "continuing criminal enterprise" statute requires three or more separate acts. (Valenzuela, 596 F2d at 1367.)
Hence, both the terms "repeatedly follows" and "harasses" (which is defined by the statute as pattern or course of conduct composed of a "series of acts") should be defined to require a minimum number of separate acts.
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.8 [Stalking].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 77.16.1.2 [Stalking: Federal Circuit Model Instructions And Notes].
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77.16.3.2 Stalking: Defense Theory That The Term Repeatedly Requires At Least Three Separate Acts
PRACTICE NOTE: To comport with the common meaning of the statutory language, and to equate this means of violating the statute with the other means, which requires of "series" of acts (see FORECITE National™ 77.16.3.1 [Stalking: Defense Theory That The Number Of Acts Committed Did Not Constitute A "Pattern," "Series" Or "Course Of Conduct"]), the term "repeatedly" should be interpreted to require three or more separate acts of following. (See Commonwealth v. Martinez (MA 1997) 683 NE2d 699, 702 [statutory crime of stalking based on following victim "repeatedly" requires more than two incidents of following]; see also U.S. v. Valenzuela (9th Cir. 1979) 596 F2d 1361, 1367 [common usage and the dictionary definition of "series" reflect that normally three or more events are required to compose a series].) This construction is also required because any doubt in interpreting a criminal statute must be resolved in favor of the defendant. (See People v. Craft (CA 1986) 41 C3d 554, 560 [224 CR 626]; see also FORECITE National™ 77.16.2.3 [Stalking: "Repeatedly" Should Not Be Defined As More Than Once].)
In People v. Heilman (CA 1994) 25 CA4th 391 [30 CR2d 422] (see also People v. McClelland (CA 1996) 42 CA4th 144, 151 [49 CR2d 587] [stalking statute not unconstitutionally vague]), the court concluded that the term repeatedly simply means "more than once." (Heilman, 25 CA4th at 400-01.) This conclusion is erroneous.
Heilman stated that the dictionary definition of "repeatedly" is "said, done or presented again." (25 CA4th at 400 fn 5.) However, this is actually the second definition, which is obviously intended to apply to the use of the term "repeated" as in repeating a specific act (e.g,: "he ‘repeated’ second grade.") This is not the common meaning associated with the term "repeatedly" which means" renewed or recurring again and again; constant, frequent." (Webster's Third New Int'l. Dict. (1981), p. 1924.) Accordingly, Heilman erroneously concluded the common meaning of the term "repeatedly" requires that only one or more acts of following is required.
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.8 [Stalking].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 77.16.1.2 [Stalking: Federal Circuit Model Instructions And Notes].
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77.16.3.3 Stalking: Juror Unanimity As To The Predicate Acts As Defense Theory
RATIONALE: Without an explanatory instruction the jury may not unanimously agree on which specific acts constitute the "series of acts" upon which criminal liability is predicated.
POINTS AND AUTHORITIES: While it has been held that juror unanimity is not required as to different theories of guilt (see FORECITE National™ 273.7.1 [Jury Unanimity: Multiple Theories (Alternative Means Of Commission)]), the predicate acts upon criminal liability is founded are not mere theories of guilt. In fact, the failure to require unanimity as to the predicate acts to criminal liability may implicate the Due Process Clause of the U.S. Constitution. (See Eric S. Miller, Compound/Complex Criminal Statutes And The Constitution: Demanding Unanimity As To Predicate Acts, 104 Yale L.J. 2277 (1995); FORECITE National™ 273.9 [Juror Unanimity As To Predicate Acts Of Compound Offenses].) "[S]ubstantial agreement on a discrete set of actions is essential to ensure that the defendant is guilty beyond the reasonable doubt of some specific illegal conduct. [Citation]]." (U.S. v. Edmonds (3rd Cir. 1996) 80 F3d 810, 819.) Hence, when there is a real risk that the jury will convict without agreement on a discrete set of actions, courts have acquired specific unanimity instructions. (See e.g. People v. Deletto (CA 1983) 147 CA3d 458, 472 [195 CR 233] [jury must agree that defendant committed the same act or acts]; People v. Madden (CA 1981) 116 CA3d 212, 214-220 [171 CR 897] [reversing sex assault conviction because instructions allowed jury to convict without agreement as to a particular assault]; People v. McNeill (CA 1980) 112 CA3d 330, 335 [169 CR 313] [where defendant is charged in a single count with several offenses and the evidence tends to show that he committed more than one such offense, the jury must agree upon the particular act committed in order to convict]; People v. McRae (CA 1967) 256 CA2d 95, 120-21 [63 CR 854] [jury must be instructed to unanimously agree upon at least one false statement as predicate to perjury conviction].)
Moreover, because most stalking statutes make the "series of acts" an element of the charge unanimity should be required under the rationale of Richardson v. U.S. (1999) 526 US 813, 816 [119 SCt 1707; 143 LEd2d 985]. (See FORECITE National™ 120.2.2.1 [Continuing Criminal Enterprise: Jury Must Unanimously Agree On Predicate Offenses].)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 12.2].
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.8 [Stalking].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 77.16.1.2 [Stalking: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
The prosecution must prove that the defendant willfully, maliciously, and repeatedly, on at least [two] [three] separate occasions, followed another person.
All twelve jurors must unanimously agree as to which [two] [three] separate occasions, if any, were proven.
SAMPLE INSTRUCTION # 2:
The prosecution must prove beyond a reasonable doubt that the defendant willfully and maliciously, committed a series of at least three separate acts which harassed another person.
All twelve jurors must unanimously agree as to which three separate acts, if any, were proven.
SAMPLE INSTRUCTION # 3:
The government need not prove that each and every specific alleged act was committed by the defendant. However, the government must prove that the defendant committed at least three of the specific acts which are alleged. In order to find that the government has proved the [a] defendant committed three specific acts, the jury must unanimously agree on which three specific acts that defendant committed.
For example, if some of you find defendant [insert example from indictment] and the rest of you find defendant [insert different example], then there is no unanimous agreement on which act has been proved. On the other hand, if all jurors find defendant [insert example from indictment], then there is unanimous agreement.
[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 4.03 [Unanimity On Specific Acts] (1999).]
SAMPLE INSTRUCTION # 4:
ForepersonWe, the jury, find defendant (name) __________________ guilty/not guilty of stalking as charged in Count _____. If you find defendant "guilty," you must answer the following:
Which of the following acts do you find were committed by defendant? (list alleged predicate acts):
____________________________________________________________
____________________________________________________________(Check each act which the jury unanimously agrees defendant used.)
____________________________________
____________________
(Date)
[See 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 11.03 [SAMPLE SPECIAL VERDICT FORM (INTERROGATORIES TO FOLLOW FINDING OF GUILT)] (2000).}
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77.16.3.4 Stalking: Defense Theory That Victim's Feelings Of Harassment Were Not Reasonable And/Or Subjectively Held
RATIONALE: In the context of stalking, the term "harass" has been construed to require that victim's feelings of being harassed be both subjectively held and objectively reasonable. Therefore, instruction on these definitional elements of the term "harass" may be appropriate.
POINTS AND AUTHORITIES: It has been held that reasonable fear by the victim is an element of the offense of harassment. (See State v. Binkin (WA 1995) 902 P2d 673, 677; see also State v. Savaria (WA 1996) 919 P2d 1263, 1266 [prosecution not required to prove that victim actually believed defendant would carry out the threat, so long as she had a reasonable fear he would cause her bodily injury]; see also State v. Orsello (MN 1996) 554 NW2d 70, 71.)
See also FORECITE National™ 59.1.2 [Crimes Involving Victim’s Fear As Element: Fear Must Be Reasonable].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.8 [Stalking].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 77.16.1.2 [Stalking: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
An element of the charged offense is that the defendant harassed _____________ (name of alleged victim). This requires the prosecution to prove beyond a reasonable doubt that the defendant committed intentional conduct which:
(1) Would have caused a reasonable person under the circumstances to feel oppressed, persecuted or intimidated, and
(2) Actually caused _______________ (name of alleged victim) to feel oppressed, persecuted or intimidated.
[Cf. MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 13.56 [Criminal Sexual Conduct- Defendant Not Guilty If Cohabiting With Or Married To Complainant] ¶ 2 (West, 4th ed. 2000/01).]
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77.16.3.5 Stalking: Constitutionally Protected Behavior As Defense Theory
RATIONALE: Without special instruction the jury may assume that it can convict the defendant of stalking based on constitutionally protected behavior.
POINTS AND AUTHORITIES: A statute may not make criminal conduct which is protected by the federal constitution. (See e.g., FORECITE National™ 101.8.2.1 [Loitering With Intent To Commit Prostitution: Constitutional Challenge].) Therefore, when it is a defense theory that the defendant's conduct was constitutionally protected there maybe legal rulings which the judge must make and factual determinations which the jury must make.
To the extent that such issues are determined to be questions of law, they are for the court. (See FORECITE National™ 300.10.4 [Constitutional Right To Jury Determination Of Factual Component Of Mixed Questions Of Law And Fact].) However, factual determinations necessary for resolution of the issue must be made by the jury. (Ibid.)
Accordingly, it may be necessary that the jury be instructed upon the applicable constitutional principles (as it is in the 4th Amendment context when the lawfulness of the police conduct is a jury issue.) (See FORECITE National™ 99.2.3 [Lawful Discharge Of Duty In Making Arrest: Requirements Of Authority To Arrest And Lawful Arrest].) Presumably most of these principles will relate to the 1st Amendment, but it might also be appropriate to consider the 10th Amendment which provides that all rights not specifically prohibited by the states are reserved to the people. Such cases might also involve the right to travel. The freedom to travel throughout the United States has long been recognized as a fundamental right secured by the Constitution. (Attorney General of New York v. Soto-Lopez (1986) 476 US 898, 901 [106 SCt 2317; 90 LEd2d 899]; see also Ball v. Rapides Parish Police Jury (5th Cir. 1984) 746 F2d 1049, 1059 [right to travel between the states is fundamental constitutional right].)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
USE NOTE: Burden Of Producing Evidence. There may also be evidentiary and burden of proof questions as to constitutionally protected activity. As the South Dakota instruction committee observed:
"The phrase, ‘constitutionally protected activity’ as it applies to course of conduct is not defined. Further, the Committee believes it is a defense that would have to have some evidentiary basis before that portion of the definition is given to the jury. A review of case law in other states suggests that the activity associated with stalking is not constitutionally protected. [Citations.]"
(SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-1-13 [Stalking-Definitions] (State Bar of South Dakota, 2000); see also U.S. v. Smith (DC 1996) 685 A2d 380, 388 [while certain of defendant's actions could have appeared to be constitutionally protected when viewed separately, when such activities were repeated and combined with criminal intent necessary to violate stalking statute, they were no longer protected].)
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.8 [Stalking].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 77.16.1.2 [Stalking: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
You must not to consider for any purpose the following conduct of the defendant: ____________________ (insert constitutionally protected activity).
SAMPLE INSTRUCTION # 2:
All persons have the right to freedom of speech, association, and to the use of public roads, highways and means of transportation. You must not convict the defendant based on any of these constitutionally protected activities unless the defendant used these rights for the purpose of harassing ________________(alleged victim) as that term is defined elsewhere in these instructions.
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77.16.3.6 Stalking Following Court Order: Defense Theory Of Double Jeopardy Based On Prior Contempt Conviction
PRACTICE NOTE: When the statutory scheme provides separate criminal liability for stalking in violation of a court order there may be an argument that double jeopardy principles preclude conviction for both stalking and criminal contempt based on violation of the same court order. (See e.g., FORECITE National™ 93.4.3.2 [Child Stealing: Defense Of Double Jeopardy Based On Prior Contempt Conviction]; see also FORECITE National™ 257.2.7 [Double Jeopardy: Prohibition Against Multiple Convictions]. ) However, this argument has been rejected in several states on the basis that stalking in violation of a restraining order is a punishment enhancement not a substantive crime. (See e.g., People v. Kelley (CA 1997) 52 CA4th 568, 576 [60 CR2d 653]; see also State v. Johnson (FL 1996) 676 So2d 408, 411; Ivey v. State (AL 1996) 698 So2d 179, 184; People v. Coones (MI 1996) 550 NW2d 600, 603.)
RESEARCH NOTES:
See generally, FORECITE National™ 305.6.8 [Former Jeopardy].
See also generally, FORECITE National™ 305.19.8 [Stalking].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 77.16.1.2 [Stalking: Federal Circuit Model Instructions And Notes].
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77.16.3.7 Stalking In Violation Of Court Order: Defense Theory That Evidence Of Court Order Violation Should Be Excluded If Defendant Stipulates To Violation
PRACTICE NOTE: In some jurisdictions it has been held that a previous contempt conviction for violation of a court order provision is not an element of the stalking offense but merely a punishment enhancement. (See FORECITE National™ 77.16.3.6 [Stalking Following Court Order: Defense Theory Of Double Jeopardy Based On Prior Contempt Conviction].) Accordingly, the defendant should be permitted to stipulate to the violation of the court order so as to avoid jury consideration of that evidence. (See FORECITE National™ 39.1 [Stipulation].) Alternatively, the court order violation could be bifurcated for consideration separately from the stalking violation itself. (See e.g. FORECITE National™ 39.2 [Bifurcation As Strategy For Limiting Prejudicial Impact Of Prior Conviction].)
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.8 [Stalking].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 77.16.1.2 [Stalking: Federal Circuit Model Instructions And Notes].
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77.16.3.8 Stalking: Lawful Authority As Defense Theory
RATIONALE: If one person follows another pursuant to lawful authority there is no criminal conduct and the crime of stalking has not been committed.
POINTS AND AUTHORITIES: In light of State v. Lee (WA 1996) 917 P2d 159, 301 the Washington Supreme Court Committee on Jury Instructions added a requirement that the defendant act "without lawful authority" as an element of the Washington instruction on stalking. (See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 36.21 [Stalking-Elements] (West, 2nd ed. 1994) (1998 Pocket Part).)
For purposes of this element the phrase "without lawful authority" means without "authority found in 'easily ascertainable sources' of statutory or common law." (Lee, 917 P2d at 162.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.8 [Stalking].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 77.16.1.2 [Stalking: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
The prosecution must prove that the defendant did not act with lawful authority. If you have a reasonable doubt whether the prosecution has satisfied this burden to disprove the lawful authority of the defendant, you must give the defendant the benefit of that doubt and vote for a verdict of not guilty.
[Cf. WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 36.27 [Stalking-Without Lawful Authority-Definition] (West, 2nd ed. 1994) (1998 Pocket Part).]
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77.16.3.9 Stalking: Defense Theory That There Was Insufficient Separation In Time For Between The Alleged Acts
RATIONALE: Without an explanatory instruction the jury may not understand that there must be a distinct separation in time between the alleged acts.
POINTS AND AUTHORITIES: To be separate acts within the meaning of a stalking statute there must be a distinct separation in time between the acts. (See e.g., CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.99B [Stalking] ¶ 4 (Bar Association of the District of Columbia, 4th ed. 1993.)
"The Random House Dictionary of the English Language, 1979, defines 'occasion' as 'a particular time, esp. as marked by certain circumstances or occurrences.' The same dictionary defines 'separate' as being 'unconnected; distinct; unique.' Thus ... the term 'two separate occasions' has a plain meaning and is not fairly susceptible of an interpretation other than that of two unconnected, distinct, or unique times." (Lett v. Maryland (MD 1982) 445 A2d 1050, 1057; People v. Pena (CA 1992) 7 CA4th 1294, 1315 [9 CR2d 550] [separate sexual acts occurring one after the other without affording time to reflect have been held to be committed on one occasion].)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.8 [Stalking].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 77.16.1.2 [Stalking: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
The prosecution must prove that the defendant committed ________ acts on separate occasions. To be a separate occasion there must be a sufficient separation in time to make the acts unconnected and distinct from one another.
If you have a reasonable doubt whether the acts were committed on separate occasions you must give the defendant the benefit of that doubt and return a verdict of not guilty.
SAMPLE INSTRUCTION # 2:
Acts are done on separate occasions if they are unconnected or distinct from one another.
[See Lett v. Maryland (MD 1982) 445 A2d 1050; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.99B [Stalking] ¶ 4 (Bar Association of the District of Columbia, 4th ed. 1993).]
SAMPLE INSTRUCTION # 3:
If acts are done more than once with some distinct separation in time, then they are considered to have been done on more than one occasion.
[See Lett v. Maryland (MD 1982) 445 A2d 1050; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.99B [Stalking] ¶ 4 (Bar Association of the District of Columbia, 4th ed. 1993).]
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77.16.3.10 Stalking: First Amendment Defense
See FORECITE National™ 77.14.3.3 [Terrorist Threats: First Amendment Defense].
See FORECITE National™ 77.15.3.4 [Hate Crimes: First Amendment Defense].
See FORECITE National™ 300.16.1 [Freedom Of Speech (1st Amendment)].
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77.16.3.11 Stalking: Additional Defenses And Defense Theories
PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)