State v. Johnston

• Decision Date: 26 January 2006
• Docket Number: No. 76544-8.,76544-8.
• Citation: 156 Wn.2d 355,127 P.3d 707
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Tracey Jade JOHNSTON a/k/a Tracey Jade Johnson, Petitioner.

Page 707

127 P.3d 707

156 Wn.2d 355

STATE of Washington, Respondent, v. Tracey Jade JOHNSTON a/k/a Tracey Jade Johnson, Petitioner.

No. 76544-8.

Supreme Court of Washington, En Banc.

Argued October 11, 2005.

Decided January 26, 2006.

Sarah McNeel Hrobsky, Gregory Charles Link, Washington Appellate Project, for Petitioner.

Ian Michael Goodhew, James Morrissey Whisman, King County Prosecutor's Office, for Respondent.

MADSEN, J.

¶ 1 Petitioner Tracey Johnston contends that because the jury instructions did not define "threat" as a "true threat," the Court of Appeals erred in affirming his conviction for threatening to bomb Sea-Tac International Airport. He also argues that the bomb threat statute is unconstitutionally overbroad unless it is given a limiting construction to prohibit only true threats. Finally, Johnston argues that there is insufficient evidence that he made a true threat and, thus, the charge against him must be dismissed. We agree that the jury was improperly instructed and that the statute must be construed to prohibit only true threats and reverse the Court of Appeals. However, we remand for a new trial under proper instructions.

FACTS

¶ 2 On May 2, 2001, Alaska Airlines flight attendant Jennifer Stellflug noticed two passengers, petitioner Tracey Johnston and another man, who appeared to be intoxicated. After seeing the men drinking alcoholic beverages, Stellflug told the men the use of personal alcohol was not permitted. Following a second warning about the use of alcohol, she confiscated an alcoholic beverage from the men. She and other flight attendants advised the pilots of the situation, who notified controllers at Sea-Tac, who in turn notified Port of Seattle police.

¶ 3 Port of Seattle Officer Raymond Blackwell met the incoming flight. Blackwell testified that when Johnston got off the plane it was obvious he had been drinking — "[t]here was a strong odor of alcohol and his eyes were watery and blood shot." Transcript of Proceedings (Oct. 4, 2001) (TR) at 85. Blackwell detained Johnston, obtained his identification and ran a computer check, then arrested Johnston on two outstanding misdemeanor warrants. Blackwell took Johnston to the airport security office. Blackwell testified that Johnston was "visibly upset" about the arrest, TR at 96, and that while Blackwell was booking Johnston and writing his report Johnston "started vocalizing his unhappiness." TR at 92. Johnston said that "he would come back to the airport and ... this place up" and that "he was going to blow this place up." TR at 94. Blackwell testified that Johnston said that "he knew about the airport, and he knew what it would take ... all he needed was a Ryder truck and some nitro diesel fuel...." TR at 94-95. Johnston also said that "he would fin[d] that bitch of a flight attendant . . . and get her and said he believed she lived in Mercer Island." TR at 94.

¶ 4 Johnston was charged with threats to bomb or injure property in violation of RCW 9.61.160.¹ Over defense counsel's objection, the trial court instructed the jury that "[t]hreat means to communicate, directly or indirectly, the intent to wrongfully cause physical damage to the property of a person other than the actor," Clerk's Papers (CP) at 16 (Jury Instruction 2.02), and declined to give Johnston's proposed instruction defining a "true threat." In closing argument, Johnston's counsel described Johnston as drunk and suggested that the jury should not convict because Johnston's threat could not be taken seriously under these circumstances. The State's objection to this argument was sustained. The prosecuting attorney argued that intent to carry out the threat was not required. During jury deliberations, the jury asked, "Are we suppose[d] to judge if defendant is guilty of only `saying the words' or deciding if defendant `actually has intent to carry out the threat[?]'" CP at 21. Over a defense objection, the trial court responded, "Intent to carry out the threat is not an element of the crime." CP at 21. Johnston was convicted and he appealed.

¶ 5 The Court of Appeals affirmed the conviction in an unpublished opinion. Johnston petitioned for discretionary review. We granted the petition and remanded to the Court of Appeals for reconsideration in light of State v. Kilburn, 151 Wash.2d 36, 84 P.3d 1215 (2004). The Court of Appeals again affirmed the conviction in an unpublished opinion. State v. Johnston, noted at 123 Wash.App. 1044, 2004 WL 2361999, 2004 Wash.App. LEXIS 2364. The court reiterated its prior holdings that RCW 9.61.160(1) is neither overbroad nor limited to unprotected speech and the jury was properly instructed. The Court of Appeals distinguished Kilburn on the basis that the statements in Kilburn were made in jest, unlike Johnston's statements. Johnston again sought discretionary review, which we granted.

ANALYSIS

¶ 6 The parties agree that RCW 9.61.160 must be construed to limit its application to true threats in order to avoid facial invalidation of the statute on overbreadth grounds² under the first amendment to the United States Constitution and article I, section 5 of the Washington Constitution.³ The Court of Appeals, however, concluded that RCW 9.61.160 is neither overbroad nor limited to unprotected speech. See Johnston, 123 Wash.App. 1044, 2004 WL 2361999, at **2, 3, 2004 Wash.App. LEXIS 2364, at **6, 9.

¶ 7 RCW 9.61.160(1) provides in relevant part:

It shall be unlawful for any person to threaten to bomb or otherwise injure any public or private school building, any place of worship or public assembly, any governmental property, or any other building, common carrier, or structure, or any place used for human occupancy....

¶ 8 The statute regulates pure speech and therefore "must nevertheless be `interpreted with the commands of the First Amendment clearly in mind.'" State v. Williams, 144 Wash.2d 197, 207, 26 P.3d 890 (2001) (quoting Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969)). Certain categories of speech "`are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."' Kilburn, 151 Wash.2d at 42, 84 P.3d 1215 (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 504, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)). One of these categories of punishable words is "true threats." Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); Kilburn, 151 Wash.2d at 43, 84 P.3d 1215 (citing cases) ("true threats" are unprotected speech).⁴

¶ 9 We have adopted an objective standard for determining what constitutes a true threat: A "true threat" is a statement

"in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted... as a serious expression of an intention to inflict bodily harm upon or to take the life of [another individual]."

United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.1990) (alteration in original) (quoting United States v. Hoffman, 806 F.2d 703, 707 (7th Cir.1986)), quoted in Williams, 144 Wash.2d at 207-08, 26 P.3d 890; State v. J.M., 144 Wash.2d 472, 478, 28 P.3d 720 (2001); Kilburn, 151 Wash.2d at 43, 84 P.3d 1215; see State v. Knowles, 91 Wash.App. 367, 373, 957 P.2d 797 (1998). "[W]hether a true threat has been made is determined under an objective standard that focuses on the speaker." Kilburn, 151 Wash.2d at 44, 84 P.3d 1215.⁵ "A true threat is a serious threat, not one said in jest, idle talk, or political argument." Id. at 43, 84 P.3d 1215.

¶ 10 The United States Supreme Court has said that "`[t]rue threats' encompass those statements 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." Black, 538 U.S. at 359, 123 S.Ct. 1536.⁶ "The speaker need not actually intend to carry out the threat." Id. at 359-60, 123 S.Ct. 1536; see Kilburn, 151 Wash.2d at 45-48, 84 P.3d 1215. The reasons that true threats of violence are unprotected speech are to protect individuals from the fear of violence, the disruption engendered by that fear, and the possibility that the threatened violence will occur. Black, 538 U.S. at 360, 123 S.Ct. 1536; see R.A. V. v. City of St. Paul, 505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Kilburn, 151 Wash.2d at 43, 84 P.3d 1215; J.M., 144 Wash.2d at 478, 28 P.3d 720.

¶ 11 The constitutionality of the Washington bomb threat statute has been addressed in only a few cases. The Court of Appeals in the present case relied on two cases in support of its conclusion that RCW 9.61.160 is not overbroad, State v. Edwards, 84 Wash.App. 5, 16-17, 924 P.2d 397 (1996) and State v. Smith, 93 Wash.App. 45, 47-48, 966 P.2d 411 (1998). Initially, as Johnston correctly points out, the analysis in Edwards is flawed because it conflates two categories of unprotected speech, fighting words and true threats, as the court in Smith explained. Id. at 49-50, 966 P.2d 411. The court in Smith properly recognized that the statute must be construed to prohibit only unprotected speech in order to avoid overbreadth. Id. at 48-50, 966 P.2d 411; see also State v. Brown, 50 Wash.App. 405, 411, 748 P.2d 276 (1988) (RCW 9.61.160 is "not overbroad because it is readily susceptible to a narrow construction ... which limits its application to unprotected speech," i.e., threats of harm to others). But as Johnston contends, Edwards and Smith do not support the Court of Appeals' twin conclusions that the statute is neither overbroad nor limited to unprotected speech.⁷

¶ 12 As the parties here agree, unless the bomb threat statute is given a limiting instruction so that it proscribes only true threats, it is overbroad. A law criminalizing speech is unconstitutionally overbroad under the First Amendment "`if it sweeps within...