(CN) – The Supreme Court on Monday declined to weigh into whether faulty jury instructions condemned a Florida man to 15 years in prison for what was likely little more than the rowdy statements of a drunk.
But in a concurring opinion, Justice Sonia Sotomayor said she believes the case raises important First Amendment issues, and that while she is in accord with the majority, feeling its hands were tied by the proceeding record, she joins them in not granting certiorari only with great reluctance.
The case was appealed from Florida’s Fifth District Court of Appeals and involves the fate of Robert Perez, who is currently serving a sentence of 15 years and one day in the Apalachee Correctional Institution in Sneads, Florida.
According to his petition for a writ of certiorari, Perez and several friends gathered on a Florida beach in October 2012, and spent the day “drinking, singing and having a good time.”
Perez recalled that the drink of choice that day was a “Molotov” or “Molly” cocktail, consisting of ruby red grapefruit juice and vodka. He also said he had never had one before, but drank several over the course of an afternoon.
Late in the day, when the group ran low on both grapefruit juice and alcohol, they made their way to a local Publix supermarket and the liquor store next to it, to restock their supplies.
While there, a store employee overheard the group’s conversation, and came to believe they were talking about an incendiary Molotov cocktail, rather than a beverage.
As recounted in the petition, the employee asked whether Perez intended to “burn anything up” and Perez said he only had one left — a reference to that last mixed drink he had in a knapsack — and couldn’t burn anything up.
Imprudently, however, and encouraged by the laughter of his friends, the inebriated Perez continued the banter, telling another employee that he had only “one Molotov cocktail” and could “blow the whole place up.”
Perez later returned to the store and allegedly said, “‘I’m going to blow up this whole … world.’”
That prompted a call to the police, but Perez wasn’t arrested until Feb. 17, 2013, after investigators discovered he had a record as a habitual felony offender.
Perez was prosecuted for violating a Florida statute that makes it a felony “to threaten to throw, project, place, or discharge any destructive device with intent to do bodily harm to any person or with intent to do damage to any property of any person.”
The trial court instructed the jury it could return a guilty verdict if the state proved Perez had actually made the threat and if he actually intended to make the threat.
But in her concurring opinion, Justice Sotomayor says the court went on to define intent as “the stated intent to do bodily harm to any person or damage to the property of any person.”
“This instruction permitted the jury to convict Perez based on what he ‘stated’ alone — irrespective of whether his words represented a joke, the ramblings of an intoxicated individual, or a credible threat,” Sotomayor wrote.
The jury found Perez guilty, and because he qualified as a habitual offender, the trial court sentenced him to 15 years and 1 day in prison.
Sotomayor maintains that Supreme Court precedent makes clear that to sustain a threat conviction without encroaching upon the First Amendment, “states must prove more than the mere utterance of threatening words — some level of intent is required.
“[I]t is not enough that a reasonable person might have understood the words as a threat — a jury must find that the speaker actually intended to convey a threat,” she wrote.
In this case, Sotomayor said, the jury instruction in relieved the state of its burden of proving anything other than Perez’s “stated or communicated” intent.
The justice went on to point out that even in arguing for the 15-year sentence, the prosecutor conceded Perez “may have been ‘just a harmless drunk guy at the beach.'”
Furthermore, Sotomayor said, at least one witness testified she did not find Perez threatening.
“Instead of being instructed to weigh this evidence to determine whether Perez actually intended to convey a threat — or even whether a reasonable person would have construed Perez’s words as a threat — the jury was directed to convict solely on the basis of what Perez ‘stated,’” Sotomayor wrote.
Despite all this, the justice said she and her colleagues could not get into the issues raised because the trial court never delved into the possible First Amendment ramifications of the case.
Sotomayor said in an appropriate case, the court should affirm that the First Amendment does not permit the sentencing scenario that played out in Perez’s case.
“The Court should also decide precisely what level of intent suffices under the First Amendment — a question we avoided two terms ago in Elonis,” she wrote.