7 N.E.3d 946 (Ind. 2014), 15S01-1405-CR-309, Brewington v. State

Docket Nº:15S01-1405-CR-309
Citation:7 N.E.3d 946
Opinion Judge:Rush, Justice.
Party Name:DANIEL BREWINGTON, Appellant (Defendant), v. STATE OF INDIANA, Appellee (Plaintiff)
Attorney:ATTORNEYS FOR APPELLANT: Michael K. Sutherlin, Samuel M. Adams, Indianapolis, Indiana. ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Stephen R. Creason, Chief Counsel, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana. ATTORNEY FOR AMICUS CURIAE ACLU OF IND...
Judge Panel:Rush, Justice. Dickson, C.J., and Rucker, David, and Massa, JJ., concur. Dickson, C.J., and Rucker, David, and Massa, JJ., concur.
Case Date:May 01, 2014
Court:Supreme Court of Indiana

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7 N.E.3d 946 (Ind. 2014)

DANIEL BREWINGTON, Appellant (Defendant),


STATE OF INDIANA, Appellee (Plaintiff)

No. 15S01-1405-CR-309

Supreme Court of Indiana

May 1, 2014

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Appeal from the Dearborn Superior Court II, No. 15D02-1103-FD-84. The Honorable Brian Hill, Special Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 15A01-1110-CR-550.

ATTORNEYS FOR APPELLANT: Michael K. Sutherlin, Samuel M. Adams, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Stephen R. Creason, Chief Counsel, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana.


ATTORNEYS FOR AMICI CURIAE EAGLE FORUM, ET AL.: Eugene Volokh, Los Angeles, California; James Bopp, Jr., Justin L. McAdam, Terre Haute, Indiana.

Rush, Justice. Dickson, C.J., and Rucker, David, and Massa, JJ., concur.


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Rush, Justice.

The United States and Indiana constitutions afford sweeping protections to speech about public officials or issues of public or general concern, even if the speech is intemperate or caustic. But there is no such protection for " true threats" --including veiled or implied threats, when the totality of the circumstances shows that they were intended to put the victims in fear for their safety. Fear for one's reputation is often the price of being a public figure, or of involvement in public issues. But fear for one's safety is not.

Here, the Court of Appeals failed to distinguish between those two types of fear. Many of Defendant's statements, at least when viewed in isolation, threatened only to harm the victims' reputations--hyperbolically accusing them of " child abuse" and the like. To the extent those statements were aimed at a public official or involved an issue of public concern, they are subject to the steep constitutional " actual malice" standard for defamatory speech, and the Court of Appeals erred in relying on them to support Defendant's

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convictions for intimidating a judge and attempted obstruction of justice.

But Defendant's other statements and conduct, understood in their full context, clearly were meant to imply credible threats to the victims' safety . The " true threat" inquiry requires reference to all the contextual factors--one of which is the anger and obsessiveness demonstrated even by the protected portions of Defendant's speech. And Defendant had also demonstrated mental disturbance, volatility, violence, and genuine dangerousness directly to both of his victims during his years-long vendetta against them. In that context, Defendant's conduct, including showing his victims against a backdrop of obsessive and volatile behavior that he knew where they lived, was clearly intended to place them in fear--not fear of merely being ridiculed, but fear for their homes and safety, the essence of an unprotected " true threat." Causing that fear is unlawful in itself, and all the more damaging when, as here, it aims to interfere with these victims' lawful obligations of being a neutral judicial officer or a truthful witness--both of which are at the core of our justice system.

And the failure of the jury instructions and general verdict to distinguish between protected speech and unprotected true threats did not prejudice Defendant's substantial rights here. To the contrary, we conclude that he deliberately invited that error, because requesting only broad-brush free-speech instructions enabled a broad-brush defense--emphasizing the protected, " political protest" aspects of his speech that threatened only the victims' reputations, while glossing over his statements and conduct that gave rise to more sinister implications for their safety . That approach was constitutionally imprecise, but pragmatically solid--and nothing suggests that counsel blundered into it by ignorance, rather than consciously choosing it as well-informed strategy. It was an invited error, not fundamental error or ineffective assistance of trial counsel.

We therefore grant transfer and affirm Defendant's convictions for intimidation of a judge and attempted obstruction of justice. On all other counts, we summarily affirm the Court of Appeals.

Procedural History

In February 2011, a grand jury indicted Defendant Daniel Brewington on six charges. Four related to the Defendant's divorce case that had been finalized in mid-20091 : a D-felony count of intimidating the trial judge, two A-misdemeanor counts of intimidation involving the judge's wife and a psychologist who was an expert witness in the divorce, and one D-felony count of attempted obstruction of justice relating to the psychologist. He was also indicted on a D-felony count of perjury relating to his grand-jury testimony, and a B-misdemeanor count of unlawful disclosure of grand jury proceedings. A jury acquitted Defendant of the unlawful disclosure charge but convicted on all other counts, and he appealed.

The Court of Appeals reversed both of the misdemeanor-level intimidation convictions. Brewington v. State, 981 N.E.2d 585, 596, 599 (Ind.Ct.App. 2013) (vacated by this opinion, see Ind. Appellate Rule 58(A)). As to the psychologist, the Court found a " reasonable possibility" that the jury used the same evidence to establish all the essential elements of both intimidation and attempted obstruction of justice, and therefore reversed the intimidation

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charge on double-jeopardy grounds. Id. at 595-96. It also found insufficient evidence of a threat to the judge's wife, since Defendant had not targeted her by a long-running or negative course of conduct as he had with the other two victims. See id. at 599. But it affirmed all three D-felony convictions. Id. at 610.

Defendant sought transfer, and we held oral argument on September 12, 2013 prior to deciding whether to accept transfer. We now grant transfer, concluding that the Court of Appeals erred in its free-speech analysis by failing to distinguish between Defendant's attacks on his victims' reputations that are protected by the stringent actual malice standard, and his true threats to their safety that receive no such protection. But we find ample evidence of true threats to support Defendant's convictions for intimidating the judge and his attempted obstruction of justice regarding the psychologist--and find that the general-verdict and instructional errors he complains of were invited error, not fundamental error or ineffective assistance of counsel. On all other counts, we summarily affirm the Court of Appeals. App. R. 58(A)(2).

Standard of Review

Defendant's free-speech challenge to his convictions, at bottom, questions the sufficiency of the evidence. Ordinarily, we would review such an issue with great deference to the jury's verdict--considering only the evidence favorable to the conviction, and affirming unless no reasonable fact-finder could find the necessary elements to have been proven beyond reasonable doubt. E.g., Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).

But here, as further discussed below, constitutional protection for Defendant's speech hinges on state-of-mind issues--particularly, whether he intended his communications as threats and whether his victims were reasonable in perceiving them as threats. Deferential review of such questions creates an unacceptable risk of under-protecting speech. It is our constitutional duty, then, to " make an independent examination of the whole record, so as to assure ourselves that the [conviction] does not constitute a forbidden intrusion on the field of free expression." Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 455 (Ind. 1999) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)) (internal quotation marks omitted). This " rule of independent review assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact," no matter whether the finder of fact was a judge or a jury. Bandido's, 712 N.E.2d at 455 (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)) (internal quotation marks omitted).

Here, we have independently reviewed the record de novo, and are convinced beyond reasonable doubt that Defendant fully intended to make " true threats" against his victims, and that his victims were reasonable to perceive them as threats in view of the context in which he made them. But because many of Defendant's statements, in isolation, were protected--and even his true threats were carefully veiled--we will discuss " all of the contextual factors" of his statements in considerable detail, see Virginia v. Black, 538 U.S. 343, 367, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), to identify how they took on their threatening implications.

Background Facts

Defendant was a disgruntled divorce litigant dissatisfied with a child-custody evaluator's recommendation. He waged an obsessive years-long campaign--including

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faxes (often several per day), repetitive pro se motions, and Internet posts--accusing the parties' child-custody evaluator, Dr. Edward Connor (" the Doctor" ), and Judge James Humphrey (" the Judge" ), of " unethical" and " criminal" conduct. The campaign began in 2007 when the Doctor concluded in his report that joint custody of the parties' children would be unworkable, and that Defendant's " degree of psychological disturbance . . . is concerning and...

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