Opinion
No. 65921–9–I.
2012-03-26
STATE of Washington, Respondent, v. James S. BALLEW, Appellant.
Elaine L. Winters, Washington Appellate Project, Seattle, WA, for Appellant. Ann Marie Summers, King County Prosecutors Office, Seattle, WA, for Respondent.
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. 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.
¶ 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.” While the First Amendment's scope is broad, it does not extend to “unprotected speech.”
¶ 14 “True threats” are an unprotected category of speech. “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.’ ” 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.’ ” The speaker of a “true threat” need not actually intend to carry out the threat. Instead, it is enough that a reasonable speaker would foresee that the threat would be considered serious.
¶ 15 Only “true” threats may be proscribed. “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.” The supreme court has held that the bomb threat statute, RCW 9.61.160, can only reach “true threats.”
¶ 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. 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. Black requires a subjective test when evaluating a true threat.
Clerk's Papers at 38 (emphasis added).
538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).
15. Id. at 359, 123 S.Ct. 1536.
16. Schaler, 169 Wash.2d at 282, 236 P.3d 858 (quoting RAP 2.5(a)(3)).
17. Id. at 282–83, 236 P.3d 858.
¶ 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.” Ballew claims that the jury could have convicted him for statements protected under Black because the 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.’ ” An error is “manifest” if it had practical and identifiable consequences in the case.
¶ 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. Rather, the State argues that the language is a correct statement of the law. We agree with the State.
Brief of Appellant at 20 (citing Schaler, 169 Wash.2d at 282–88, 236 P.3d 858).
¶ 20 Washington uses an objective true threat test. In State v. Kilburn, 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. In State v. Johnston, the supreme court affirmed this rule, explaining that Washington has adopted an objective standard for determining what constitutes a true threat.
151 Wash.2d 36, 84 P.3d 1215 (2004).
20. Id. at 43, 84 P.3d 1215.
156 Wash.2d 355, 127 P.3d 707 (2006).
22. Id. at 360–61, 127 P.3d 707 (quoting U.S. v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.1990) (citing Kilburn, 151 Wash.2d at 43, 84 P.3d 1215)).
¶ 21 Most recently, in State v. Schaler, the supreme court again defined true threat using an objective, not a subjective, test. It stated:
169 Wash.2d 274, 236 P.3d 858 (2010).
24. Id. at 283, 236 P.3d 858 (quoting Kilburn, 151 Wash.2d at 43, 84 P.3d 1215) (emphasis added).
25. Id. at 288 n. 5, 236 P.3d 858.
26. Id. at 287, 236 P.3d 858.
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.”
¶ 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. As Schaler also clarifies, the controlling mens rea is simple negligence, the reasonable person standard, nothing more.
¶ 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. In Schaler, the supreme court noted that while the practical difference between a speaker-centric and a hearer-centric standard is not meaningful in many cases, such a determination is fact specific.
WPIC 2.24(“To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat rather than as something said in [jest or idle talk] [jest, idle talk, or political argument] ”).
28. Schaler, 169 Wash.2d at 290 n. 7, 236 P.3d 858 (“While the [difference between the speaker-centric and hearer-centric] standards may yield no meaningful difference in many cases, in this case the difference is not academic”).
29. Black, 538 U.S. at 347–48, 123 S.Ct. 1536.
30. Id.
31. Id. at 359–60, 123 S.Ct. 1536 (internal quotation marks and citations omitted) (emphasis added).
32. Schaler, 169 Wash.2d at 287 n. 4, 236 P.3d 858.
33. Black, 538 U.S. at 360, 123 S.Ct. 1536.
34. See U.S. v. Mabie, 663 F.3d 322, 331–34 (8th Cir.2011) (objective test only); U.S. v. Beale, 620 F.3d 856, 865 (8th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1023, 178 L.Ed.2d 847 (2011) (objective test only); U.S. v. Jongewaard, 567 F.3d 336, 339 n. 2 (8th Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1502, 176 L.Ed.2d 118 (2010) (objective test only); Riehm v. Engelking, 538 F.3d 952, 963 (8th Cir.2008) (objective test); U.S. v. Armel, 585 F.3d 182, 185 (4th Cir.2009) (objective test only); U.S. v. Zavrel, 384 F.3d 130, 136 (3d Cir.2004), cert. denied, 544 U.S. 979, 125 S.Ct. 1828, 161 L.Ed.2d 732 (2005) (objective test only); U.S. v. Romo, 413 F.3d 1044, 1051 n. 6 (9th Cir.2005), certdenied, 547 U.S. 1048, 126 S.Ct. 1638, 164 L.Ed.2d 348 (2006) (subjective test not required). But see Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 616–17 (5th Cir.2004), cert. denied, 544 U.S. 1062, 125 S.Ct. 2530, 161 L.Ed.2d 1112 (2005) ( Black only requires the speaker to knowingly make the statement, not intend it as a threat); U.S. v. Magleby, 420 F.3d 1136, 1139 (10th Cir.2005), cert. denied, 547 U.S. 1097, 126 S.Ct. 1879, 164 L.Ed.2d 567 (2006) (subjective test supported by Black, but First Amendment challenge not reached because the claim was procedurally barred); U.S. v. Parr, 545 F.3d 491, 500 (7th Cir.2008), certdenied, ––– U.S. ––––, 129 S.Ct. 1984, 173 L.Ed.2d 1083 (2009) (declining to decide the issue but noting that it is more likely that an entirely objective definition of true threat is no longer tenable); U.S. v. Cassel, 408 F.3d 622, 631 (9th Cir.2005) (subjective test required); U.S. v. Stewart, 420 F.3d 1007, 1018 (9th Cir.2005) (an objective test is consistent with Black, but the statement was a true threat under both tests); Fogel v. Collins, 531 F.3d 824, 831 (9th Cir.2008) (the statement was a true threat under both tests); U.S. v. Bagdasarian, 652 F.3d 1113, 1117 n. 14 (9th Cir.2011) (subjective test required).
35. Lundborg v. Keystone Shipping Co., 138 Wash.2d 658, 677, 981 P.2d 854 (1999).
36. 1000 Virginia Ltd. P'ship v. Vertecs Corp., 158 Wash.2d 566, 578, 146 P.3d 423 (2006) (citing Fondren v. Klickitat County, 79 Wash.App. 850, 856, 905 P.2d 928 (1995) (a Washington Supreme Court decision is binding on all lower courts in the state and the court of appeals errs when it fails to follow directly controlling authority)).
¶ 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. Supreme Court considered the constitutionality of a Virginia statute that criminalized burning a cross with the intent to intimidate. The statute was invalidated on First Amendment grounds.
¶ 30 Ballew relies on the following excerpt from Justice O'Connor's lead opinion, joined by a majority of the court, which defined true threat as follows:
“True 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. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.
¶ 31 Ballew argues that this language requires a subjective, speaker-based true threat analysis, rather than an objective test. But, as noted by the Schaler court, Black is distinguishable because the statute at issue there required the speaker to intimidate the listener, which necessitates a greater mens rea than simply putting the listener in fear. HERE, BECAUSE THE State was not requIred to prove that ballew meant to intimidate the listeners, Black does not support Ballew's argument.
¶ 32 We also note that the federal circuit courts are split regarding the effect of Black's true threat definition. We are not bound by these circuit courts, and the U.S. Supreme Court has not chosen to resolve this conflict within the circuits. Therefore, we continue to follow the law, as stated by the state supreme court.
¶ 33 Ballew argues that Schaler and State v. Soboroff require reversal. they do not.
798 N.W.2d 1 (Iowa 2011).
38. Schaler, 169 Wash.2d at 281–82, 236 P.3d 858.
39. Id. at 289, 236 P.3d 858.
40. Id. at 290, 236 P.3d 858.
41. Id.
42. Soboroff, 798 N.W.2d at 2.
43. Schaler, 169 Wash.2d at 284, 236 P.3d 858 (citing O'Hara, 167 Wash.2d at 99, 217 P.3d 756).
44. Id.
¶ 34 In Schaler, the defendant was convicted of harassment for making threats to kill his neighbors. The threats were made to mental health professionals during a mental health evaluation. The trial court did not define true threat for the jury. The supreme court reversed the conviction, holding that the omission of the definition was constitutional error that was not harmless. Because a correct true threat instruction was given in this case, Schaler does not support reversal of this conviction. In fact, as we explained earlier in this opinion, Schaler approves of the WPIC on which the jury instruction given in this case was based.
¶ 35 In Soboroff, the Iowa Supreme Court reversed Soboroff's conviction for threatening to contaminate the city's water supply because defense counsel did not request a jury instruction defining true threat. We are not bound by the Iowa Supreme Court. In any event, unlike Soboroff, Ballew did receive a true threat instruction.
¶ 36 Ballew argues for the first time on appeal that the true threat portion of Instruction 8 violated his First Amendment rights because it failed to inform the jury that idle talk and jokes are not true threats. He did not object to this omission below.
¶ 37 Whether this claim is a manifest error affecting a constitutional right within RAP 2.5(a) is a threshold issue. An error is manifest if it had practical and identifiable consequences in the case. This standard is also referred to as “actual prejudice.” As the Supreme Court explained in State v. O'Hara:
167 Wash.2d 91, 217 P.3d 756 (2009).
46. Id. at 99–100, 217 P.3d 756 (citation and footnote omitted).
47. Schaler, 169 Wash.2d at 284, 236 P.3d 858 (citing O'Hara, 167 Wash.2d at 98, 217 P.3d 756).
48. See RAP 10.3(a)(5) (parties are required to support their arguments with citations to legal authority and references to relevant parts of the record).
49. Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 809, 828 P.2d 549 (1992) (arguments not supported by legal authority or the record need not be considered).
[T]he focus of the actual prejudice [analysis] must be on whether the error is so obvious on the record that the error warrants appellate review.... Thus, to determine whether an error is practical and identifiable, the appellate court must place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the error.
¶ 38 This analysis is distinct from the harmless error analysis.
¶ 39 Ballew fails to show actual prejudice here. There is no evidence in the record that Ballew's statements were idle talk or jokes. Although he claims that his involuntary commitment in a locked hospital psychiatric wing would have permitted a jury to reasonably conclude that his speech was idle talk or hyperbole, that line of reasoning is unpersuasive. Thus, had this argument been brought to the attention of the trial court below, the court could have properly declined to add the additional language to the instruction. In sum, there is no showing of actual prejudice by the omission of this language. Therefore, we do not address this argument any further.
¶ 40 The balance of this opinion has no precedential value. Accordingly, under RCW 2.06.040, it shall not be published.
******UNPUBLISHED TEXT FOLLOWS******
UNANIMITY
¶ 41 Ballew argues that he was denied his constitutional right to a unanimous jury verdict. Specifically, he alleges that the State did not present substantial evidence proving each of what he characterizes as the alternative means of violating RCW 9.61.160. We assume without deciding that this is an alternative means statute. Nevertheless, the State made an election during closing that the jury should convict on the basis of RCW 9.61.160(1)(a) and there was sufficient evidence to convict under that subsection without violating Ballew's constitutional right to a unanimous jury.
RCW 9.61.160(1) states:
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; or to communicate or repeat any information concerning such a 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.
(emphasis added). Furthermore, the WPIC treats this statute as creating two separate means of the crime. The “Notes on Use” advise that:
The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (1). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence.
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 86.02 (3d ed. 2008) (emphasis added).
51. State v. Coleman, 159 Wash.2d 509, 511, 150 P.3d 1126 (2007).
52. Id.
53. Id. at 512, 150 P.3d 1126.
54. Id. at 511–12, 150 P.3d 1126 (citing State v. Camarillo, 115 Wash.2d 60, 63–64, 794 P.2d 850(1990)).
55. Id. at 512, 150 P.3d 1126.
56. Id. (citing State v. Kitchen, 110 Wash.2d 403, 411–12, 756 P.2d 105 (1988)).
57. State v. Ortega–Martinez, 124 Wash.2d 702, 708, 881 P.2d 231 (1994) (citing State v. Green, 94 Wash.2d 216, 220, 616 P.2d 628 (1980); State v. Rempel, 114 Wash.2d 77, 82, 785 P.2d 1134(1990)).
¶ 42 To convict on a criminal charge, the jury must be unanimous that the defendant committed the criminal act. When the prosecution presents evidence of multiple acts of like misconduct, any one of which could form the basis of the crime charged, the State must either elect which of the acts it relies upon for a conviction or the court must instruct the jury to agree on a specific criminal act. Where there is neither an election nor a unanimity instruction, a constitutional error occurs. By requiring a unanimous verdict on one criminal act, a criminal defendant's right to a unanimous verdict based on an act proved beyond a reasonable doubt is protected.
¶ 43 An election that all 12 jurors must agree that the same underlying act has been proved beyond a reasonable doubt assures a unanimous verdict on the criminal act. Such an election avoids the risk that some jurors will rely on one act or incident and some will rely on another, resulting in a lack of unanimity on all of the elements necessary for a valid conviction.
¶ 44 Sufficient evidence is evidence that, when viewed in a light most favorable to the State, is adequate to persuade a rational trier of fact of guilt beyond a reasonable doubt.
¶ 45 Here, the trial court instructed the jury that, in order to find Ballew guilty of threatening to bomb or injure property, it had to find that the State proved beyond a reasonable doubt:
(1) That on or about October 17, 2009, the defendant
a) threatened to bomb or otherwise injure governmental property, any other building or structure a place used for human occupancy; or
b) communicated or repeated any information concerning a threat to bomb or otherwise injure governmental property, or a[sic] any other building or structure a common carrier or a place used for human occupancy; and
(i) That the defendant acted knowing such information was false; and
(ii) That the defendant acted with the intent to alarm the person or persons to whom the information was communicated or repeated;
and
(2) That the acts occurred in the State of Washington.
Clerk's Papers at 39.
¶ 46 The court did not give a unanimity instruction. But during closing argument, the State explained:
There are two ways in instruction number nine that a person can be guilty of this crime as listed [in] 1(a) and subsection 1(b).
We're really talking in this case about subsection 1(a), that it was the defendant himself who threatened to bomb a building. Section 1(b) is another way that this crime can be proven.
However, it talks about communicating or repeating some information knowing it's false, so a—I heard this person's making a threat to bomb, or I heard this person said he was going to bomb a building, knowing that it's false and intending to scare somebody.
That's not the situation we have here. We have the scenario listed in 1(a), which is the defendant himself making that threat to bomb. Because the State elected to rely on the defendant's own threat, as described in (1)(a) of the jury instruction, there is no unanimity issue in this case. Therefore, Ballew's constitutional right to a unanimous jury verdict was not violated.
Report of Proceedings (July 6, 2010) at 60–61.
60. State v. Monday, 171 Wash.2d 667, 675, 257 P.3d 551 (2011) (internal quotation marks and citations omitted).
61. Id. (quoting State v. McKenzie, 157 Wash.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997))).
62. Id. (quoting State v. Yates, 161 Wash.2d 714, 774, 168 P.3d 359 (2007) (quoting McKenzie, 157 Wash.2d at 52, 134 P.3d 221; Brown, 132 Wash.2d at 561, 940 P.2d 546)).
63. State v. Hughes, 118 Wash.App. 713, 727, 77 P.3d 681 (2003).
¶ 47 Ballew argues that the State failed to present sufficient evidence to prove that he threatened to bomb or otherwise injure property beyond a reasonable doubt in accordance with (1)(a) in the jury instruction. He is mistaken.
¶ 48 As described above, the State presented testimony that Ballew called 911. When the dispatcher refused to give him Officer Beam's person telephone number, he told her that his friends placed bombs around the airport. Furthermore, Officer Stecz testified that Ballew offered to disclose where his friends had placed the bombs if he could speak to Officer Beam. Taking this evidence in the light most favorable to the State, a rational person could conclude that Ballew's statements to the dispatcher and Officer Stecz were threats to bomb the airport. That person could also conclude that Ballew communicated the threat knowing it to be untrue.
¶ 49 Ballew argues that this evidence was insufficient because he was involuntarily committed and had no ability to place a bomb at the airport. But Ballew's inability to actually bomb the airport does not disprove that he threatened to do so.
¶ 50 Next, Ballew argues that it is possible that a reasonable person in his position would not believe that his threat would be taken seriously or frighten the recipient. But the evidence presented showed that Ballew called 911, threatened to bomb the airport when he did not receive the information he sought, and then continued to make the same threat in a later interview. Based on this evidence, a reasonable trier of fact could have found that Ballew's threat was serious and meant to alarm the receiver.
PROSECUTORIAL MISCONDUCT
¶ 51 Ballew argues that the prosecutor committed misconduct when she referenced John Hinckley during closing argument. We disagree.
¶ 52 “Prosecutorial misconduct is grounds for reversal if the prosecuting attorney's conduct was both improper and prejudicial.” We evaluate a prosecutor's conduct by examining it in the full trial context, including the evidence presented, the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. A defendant suffers prejudice only where there is a substantial likelihood that the prosecutor's misconduct affected the jury's verdict. The defendant bears the burden of showing both prongs of prosecutorial misconduct.
¶ 53 Here, Ballew did not raise an insanity defense. But his primary defense theory was that, in light of his mental health, a reasonable person would not believe that his statements were true threats. Anticipating that argument during closing, the prosecutor made the following statement:
Defense may just say this is a person who was delusional, this was a person who had these—these thoughts in his head that he had extra contact with the President, that he had a secret job with the military that no one knew about and, as a result, he can't possibly be taken seriously in any way, that he's just someone that needs to be discounted as not making a viable threat at all, and that he possibly couldn't make a bomb.
But just think about who—who does bomb people? Who does bomb an airport? Who does, you know, harm other people? What, crazy people, that's who's going to be making those—that's who's going to be making those threats to begin with. Think about John Hinkley [sic]
¶ 54 Defense counsel objected on the basis that the argument was irrelevant and not in evidence. The trial court overruled the objection, stating that the prosecutor could make a “common-sense point.” The prosecutor continued:
... You think about John Hinkley [sic] and his decision to shoot President Reagan, and doing so out of some, you know, obsessive love for Jodie Foster.
Does anybody really think that, that when you hear that, that that's the mind of a—of a sane person or a cogent person, but it's not something that you can discount, and sometimes it's true.
You have to follow up on these things when they're said, even if they don't make sense.
Because it's not gon'a [sic] make sense for lots of people to think that bombs would be placed at the airport.
It's not going to make sense for you to think I'm—I think it's an okay thing to do to place a bomb at an airport.
Nobody thinks it's okay to place a bomb at an airport. But crazy people will make those threats, and crazy people will follow through on those threats.[[
¶ 55 There was no further objection by the defense.
¶ 56 The prosecutor's argument was not improper. The prosecutor sought to use an example from life likely known to the jurors that even a person who had mental health challenges was capable of making credible threats. The comment was made in anticipation of the very argument that Ballew made during his closing statement that followed. This was not improper.
¶ 57 Ballew argues that it is improper for the prosecutor to draw analogies to infamous criminals in closing argument. He cites State v. Belgarde, State v. Rivers, State v. Neidigh, People v. Roman, DeFreitas v. State, and United States v. Thiel in support of this proposition.
110 Wash.2d 504, 755 P.2d 174 (1988).
96 Wash.App. 672, 981 P.2d 16 (1999).
78 Wash.App. 71, 895 P.2d 423 (1995).
701 So.2d 593, 22 Fla. L. Weekly D2462 (1997).
619 F.2d 778 (8th Cir.1980).
73. Rivers, 96 Wash.App. at 673–76, 981 P.2d 16 (prosecutor's description of the defendant as a vicious rocker, a predator, a hyena, and a jackal was misconduct); Neidigh, 78 Wash.App. at 75–77, 895 P.2d 423 (prosecutor's attempts during cross-examination to get the defendant to state that several witnesses lied on the stand were improper but not reviewable).
74. Belgarde, 110 Wash.2d at 506–07, 755 P.2d 174 (comparing the American Indian Movement, in which defendant was involved to the Irish Republican Army and Kaddafi, as well as explaining that the American Indian Movement butchered people in Wounded Knee, South Dakota); Roman, 323 Ill.App.3d at 999–1000, 257 Ill.Dec. 448, 753 N.E.2d 1074 (comparing the defendant to individuals who carry out premeditated attacks on unarmed persons, like those at Columbine High School); DeFreitas, 701 So.2d at 601 (comparing the facts of defendants' case with those of the O.J. Simpson case); Thiel, 619 F.2d at 781–82 (comparing defendant's defense that he was justified in defying the income tax laws to parents poisoning their children in Jonestown in Guyana and the Holocaust).
¶ 58 In Rivers and Neidigh, the prosecutor did not reference an infamous person during closing argument. Therefore, those cases are not helpful.
¶ 59 In the other cases, the prosecutor's argument directly compared the defendant's actions to the infamous character's actions. Here, the prosecutor did not compare Ballew to Hinckley. Rather, she used Hinckley to illustrate that threats by individuals with mental health issues can be taken seriously.
¶ 60 Ballew argues that the prosecutor's reference to Hinckley “invited the jury to believe Mr. Ballew was like Hinckley” even though their crimes were very different. This assertion is simply unsupported by a fair reading of this record.
¶ 61 Ballew argues that the prosecutor's comment that “crazy people” will make and follow through on threats to bomb airports appealed to the jury's fear of the mentally ill. Again, this assertion is unsupported by a fair reading of this record.
¶ 62 Relying on State v. Beebe, an Idaho appellate case, Ballew argues that the prosecutor's argument improperly focused the jury on public safety and the fear of airport bombings. In Beebe, the prosecutor committed misconduct by arguing that the jury should convict the defendant in order to protect the public and send a message to the mentally ill that they are not allowed to commit crimes. Here, the prosecutor made no analogous statement—she did not mention public safety or the need to hold the mentally ill accountable for their actions. Therefore, Beebe is not persuasive.
145 Idaho 570, 181 P.3d 496 (2007).
76. Beebe, 145 Idaho at 575–76, 181 P.3d 496.
¶ 63 Ballew also argues that the prosecutor's reference to Hinckley was improper because Hinckley's story was not in evidence. As a matter of likely common knowledge to the jury, there was no need for it to be in evidence to illustrate the point the State was making. And we simply reject the claim that Hinckley's story improperly injected an insanity or diminished capacity defense into the jury's consideration. It did not.
¶ 64 Because Ballew did not meet his burden to show that the prosecutor's conduct was improper, we need not determine whether the reference to Hinckley prejudiced him.
¶ 65 We affirm the judgment and sentence.
******END OF UNPUBLISHED TEXT******
WE CONCUR: APPELWICK and BECKER, JJ.
1. State v. Schaler, 169 Wash.2d 274, 282, 236 P.3d 858 (2010) (citing State v. Grande, 164 Wash.2d 135, 140, 187 P.3d 248 (2008); State v. Brett, 126 Wash.2d 136, 171, 892 P.2d 29 (1995)).
2. Id. (quoting State v. Kilburn, 151 Wash.2d 36, 49–50, 84 P.3d 1215 (2004) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 508, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984))).
3. Id. at 283, 236 P.3d 858 (quoting Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003)).
4. Id. (citing Kilburn, 151 Wash.2d at 42–43, 84 P.3d 1215).
5. Id. (citing Kilburn, 151 Wash.2d at 43, 84 P.3d 1215).
6. Id. (quoting Kilburn, 151 Wash.2d at 43, 84 P.3d 1215 (quoting State v. Williams, 144 Wash.2d 197, 208–09, 26 P.3d 890 (2001))).
7. Id. (quoting Kilburn, 151 Wash.2d at 43, 84 P.3d 1215 (quoting State v. J.M., 144 Wash.2d 472, 478, 28 P.3d 720 (2001))).
8. Id. (citing Kilburn, 151 Wash.2d at 46, 84 P.3d 1215).
9. Id.
10. Id.
11. Id. (citing Kilburn, 151 Wash.2d at 43, 84 P.3d 1215).
12. Id. at 283–84, 236 P.3d 858 (citing State v. Johnston, 156 Wash.2d 355, 364, 127 P.3d 707 (2006)).