State v. Ballew

• Citation: 272 P.3d 925
• Decision Date: 26 March 2012
• Docket Number: No. 65921–9–I.,65921–9–I.
• Parties: STATE of Washington, Respondent, v. James S. BALLEW, Appellant.
• Court: Court of Appeals of Washington

272 P.3d 925

STATE of Washington, Respondent,
v.
James S. BALLEW, Appellant.

No. 65921–9–I.

Court of Appeals of Washington, Division 1.

March 26, 2012.

[272 P.3d 927]

Elaine L. Winters, Washington Appellate Project, Seattle, WA, for Appellant.

Ann Marie Summers, King County Prosecutors Office, Seattle, WA, for Respondent.

PUBLISHED IN PART COX, J.

¶ 1 James Ballew appeals his judgment and sentence for threatening to bomb or injure property. The jury instruction that he challenges correctly stated the law regarding true threats, as required by the First Amendment. There was no violation of his constitutional right to a unanimous jury verdict. And there was no prosecutorial misconduct during closing argument. We affirm.

¶ 2 In October 2009, a man, later identified as Ballew, called 911 and asked to speak with Officer Darin Beam of the Port of Seattle Police. Officer Beam was not on duty, and the dispatcher would not give Ballew Officer Beam's personal phone number. Ballew told the dispatcher that he would only speak to Officer Beam. Ballew then stated that he had five friends who had placed bombs in and around the Seattle–Tacoma Airport and hung up.

¶ 3 Authorities traced the call to Harborview Medical Center's psychiatric ward. The dispatcher also contacted Officer Beam, who identified the caller as Ballew. Several days earlier, Officer Beam spoke with Ballew at the airport when Ballew attempted to buy an airline ticket with a promissory note.

¶ 4 Within an hour of Ballew's call, Officer Robert Stecz, who was trained in explosives, arrived at Harborview where Ballew was involuntarily committed. After gaining Ballew's permission to speak with him, the officer interviewed Ballew in his room.

¶ 5 The officer asked him whether he had made the 911 call. At first, Ballew denied doing so. He then claimed he could not remember if he made the phone call.

¶ 6 Eventually, Ballew answered Officer Stecz's questions. He said the explosives hidden at the airport ranged from the size of a shoebox to a bar of soap. He also said the explosives could not be detected by electronic devices or trained dogs. He would not say where his friends had placed the explosives at the airport.

¶ 7 Ballew also told Officer Stecz that he was in the Air Force for 53 years and that he had “cosmic [security] clearance,” which, according to Ballew, was much higher than top secret clearance. Based on this interview, Officer Stecz determined that Ballew's threat was not credible.

¶ 8 The State charged Ballew with one count of a threat to bomb or injure property based on RCW 9.61.160. At his jury trial, Ballew did not raise an insanity defense. Moreover, he did not testify. But he argued, based on his mental health status, that a reasonable person would not have considered his statements to be true threats. The jury convicted Ballew as charged.

¶ 9 The trial court sentenced Ballew to nine months confinement. With credit for time served, he was released.

¶ 10 Ballew appeals.

JURY INSTRUCTION

¶ 11 For the first time on appeal, Ballew argues that the trial court violated his First Amendment rights by incorrectly defining “true threat” in the jury instruction. We disagree.

¶ 12 Instructional errors based on legal rulings are reviewed de novo, as are constitutional questions.¹ We engage in an independent review of the record in First Amendment cases to ensure that the judgment is not based on a forbidden intrusion on the field of free expression.²

[272 P.3d 928]

¶ 13 The First Amendment, which is applicable to the states through the Fourteenth Amendment, states that “Congress shall make no law ... abridging the freedom of speech.” ³ While the First Amendment's scope is broad, it does not extend to “unprotected speech.” ⁴

¶ 14 “True threats” are an unprotected category of speech.⁵ “A true threat is ‘a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life of another person.’ ” ⁶ The State has a significant interest in restricting speech that communicates a true threat, in order to protect “ ‘individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.’ ” ⁷ The speaker of a “true threat” need not actually intend to carry out the threat.⁸ Instead, it is enough that a reasonable speaker would foresee that the threat would be considered serious.⁹

¶ 15 Only “true” threats may be proscribed.¹⁰ “The First Amendment prohibits the State from criminalizing communications that bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole.” ¹¹ The supreme court has held that the bomb threat statute, RCW 9.61.160, can only reach “true threats.” ¹²

¶ 16 Here, the court provided Instruction 8 to the jury:

A person commits the crime of threatening to bomb or injure property when he or she threatens to bomb or otherwise injure any government property, or any other building or structure, or any place used for human occupancy, or when he or she communicates or repeats any information concerning such threatened bombing or injury, knowing such information to be false and with intent to alarm the person or persons to whom the information is communicated or repeated.

To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat.¹³

Ballew did not object either to this language or to the absence of additional language that he now claims should have been included in this instruction. Specifically, Ballew now argues that the U.S. Supreme Court's decision in Virginia v. Black¹⁴ requires a subjective test when evaluating a true threat.

¶ 17 In Black, the Supreme Court defined a true threat as a statement “where 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.” ¹⁵ Ballew claims that the jury could have convicted him for statements protected under Black because the

[272 P.3d 929]

above wording of the court's instruction only required the jury to apply an objective test.

¶ 18 “An appellate court may refuse to address a claim of error not raised in the trial court unless it finds a ‘manifest error affecting a constitutional right.’ ” ¹⁶ An error is “manifest” if it had practical and identifiable consequences in the case.¹⁷

¶ 19 Here, the State does not contest Ballew's assertion that the statement of what constitutes a true threat in this instruction would be a manifest error affecting a constitutional right if it were a misstatement of the law. ¹⁸ Rather, the State argues that the language is a correct statement of the law. We agree with the State.

¶ 20 Washington uses an objective true threat test. In State v. Kilburn,¹⁹ the supreme court stated that “[w]e have adopted an objective test of what constitutes a ‘true threat’ ” based upon how a reasonable person would foresee the statement would be interpreted.²⁰ In State v. Johnston,²¹ the supreme court affirmed this rule, explaining that Washington has adopted an objective standard for determining what constitutes a true threat.²²

¶ 21 Most recently, in State v. Schaler,²³ the supreme court again defined true threat using an objective, not a subjective, test. It stated:

A true threat is “a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life of another person.” ²⁴

¶ 22 Here, the true threat instruction properly used an objective test. This is entirely consistent with the test the supreme court has repeatedly held is controlling.

¶ 23 Moreover, in Schaler, the court expressly noted its approval of Washington Pattern Instruction Criminal (WPIC) 2.24, as amended in 2008 and on which Instruction 8 is based, as incorporating “the constitutional mens rea” required to safeguard First Amendment protections.²⁵ As Schaler also clarifies, the controlling mens rea is simple negligence, the reasonable person standard, nothing more.²⁶

¶ 24 Ballew correctly argues that the supreme court's statement in Schaler approving the WPIC 2.24 is dicta. But that does not make it wrong.

¶ 25 Kilburn and Schaler are controlling with respect to the use of the objective standard. Schaler observes that the current version of WPIC 2.24 correctly formulates a jury instruction meeting that standard. Accordingly, we reject Ballew's challenge to this jury instruction.

¶ 26 At oral argument, Ballew argued that the instruction given was improper because it omitted the clause “in the position of the speaker,” which is included in WPIC 2.24.²⁷ In Schaler, the supreme court noted that while the practical difference between a speaker-centric and a hearer-centric standard

[272 P.3d 930]

is not meaningful in many cases, such a determination is fact specific.²⁸

¶ 27 Here, assuming without deciding that the trial court's failure to include the omitted language was error, any such error was harmless. The evidence presented at trial showed that Ballew deliberately called 911. He then threatened to bomb the airport when the dispatcher refused to release Officer Beam's contact information to him. Then, during his later interview with Officer Stecz, Ballew again offered to disclose the locations of the bombs, but only to Officer Beam. Based on this evidence, a reasonable trier of fact could have found that Ballew intentionally made the threats to alarm the receivers and gain access to Officer Beam.

¶ 28 Ballew argues that Black requires a different result because it requires a subjective test when evaluating a true threat. We disagree.

¶ 29 In that case, the U.S....