Brewington v. State

• Decision Date: 17 January 2013
• Docket Number: No. 15A01–1110–CR–550.,15A01–1110–CR–550.
• Citation: 981 N.E.2d 585
• Parties: Daniel BREWINGTON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

981 N.E.2d 585

Daniel BREWINGTON, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.

No. 15A01–1110–CR–550.

Court of Appeals of Indiana.

Jan. 17, 2013.

[981 N.E.2d 589]

Michael K. Sutherlin, Samuel M. Adams, Michael K. Sutherlin & Associates, Indianapolis, IN, for Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, James Whitehead, Deputy Attorney General, Indianapolis, IN, for Attorneys for Appellee.

OPINION
DARDEN, Senior Judge.
SUMMARY

Daniel Brewington appeals his convictions for three counts of intimidation, two as Class A misdemeanors and one as a Class D felony, Ind.Code § 35–45–2–1 (2006); one count of attempted obstruction of justice, a Class D felony, Ind.Code §§ 35–44.1–2–2 (2012),¹35–41–5–1 (1977); and one count of perjury, a Class D felony, Ind.Code § 35–44.1–2–1 (2012).² We affirm

[981 N.E.2d 590]

in part, reverse in part, and remand with instructions.³

ISSUES

Brewington raises five issues, which we expand and restate as:

I. Whether the court abused its discretion by impaneling an anonymous jury.

II. Whether the court erred by admitting a custody evaluation and a divorce decree into evidence.

III. Whether one of Brewington's convictions for intimidation and his conviction for attempted obstruction of justice violate the Indiana Constitution's double jeopardy clause.

IV. Whether the evidence is sufficient to sustain Brewington's convictions.

V. Whether the court's final jury instructions were erroneous.

VI. Whether Brewington received ineffective assistance of trial counsel. ⁴

FACTS AND PROCEDURAL HISTORY

This case arises out of a civil dissolution matter; it is thus necessary to set forth the circumstances of that matter in some detail. Brewington and Melissa Brewington (“Melissa”) were married in 2002 and had two children. On January 8, 2007, Melissa filed a petition in the Ripley Circuit Court to dissolve her marriage with Brewington. The Honorable Carl H. Taul was the original judge in the case.

The parties could not agree on custody of the children, so Melissa and Brewington (who was at that time represented by counsel) agreed to a custody evaluation and further agreed that Dr. Edward Connor (“Dr. Connor”), a clinical psychologist based in Kentucky, would perform the evaluation. On or about September 7, 2007, Dr. Connor and Dr. Sara Jones–Connor (“Dr. Jones–Connor”), who is Dr. Connor's wife and one of his professional partners, filed their custody evaluation with the court under seal. In the evaluation, the doctors determined that joint physical custody would not work because Melissa and Brewington had difficulty communicating effectively with each other. Instead, they recommended that Melissa “be the sole custodian and primary residential parent,” with Brewington receiving liberal visitation. State's Ex. 9, p. 30. ⁵

Soon after Dr. Connor and Dr. Jones–Connor filed the evaluation, Brewington informed Dr. Connor that he objected to the observations and conclusions stated therein. Dr. Connor offered to meet with Brewington again to consider additional information and perhaps submit an addendum to the evaluation, but Brewington rejected his offer. Instead, Brewington subjected Dr. Connor to a torrent of abusive letters demanding that Dr. Connor release his entire file to him, withdraw the evaluation, and withdraw from the case. These letters are discussed in more detail below. Brewington accused Dr. Connor of “dishonest, malicious, and criminal behavior,” as noted in State's Exhibit 39, and “unethical

[981 N.E.2d 591]

and criminal practices,” as noted in State's Exhibit 51.

Brewington also filed a complaint against Dr. Connor with the Kentucky Board of Psychology, but after receiving a response from Dr. Connor, the Board determined that the complaint did not merit further action. In addition, Brewington started a blog and repeatedly posted negative comments about Dr. Connor. Brewington also posted complaints about Dr. Connor on other websites. On MerchantCircle.com's website, which provides evaluations of local businesses in the community, Brewington described Dr. Connor as “a very dangerous man who abuses his power.” State's Ex. 53.

In the meantime, Brewington, now proceeding pro se, filed a motion for change of judge on December 5, 2008. On December 18, 2008, Judge James D. Humphrey of Dearborn County was appointed special judge. On May 27, 2009, Judge Humphrey commenced a three-day final hearing. On August 17, 2009, he entered a judgment and final order, granting sole legal and physical custody of the children to Melissa. Based upon the evidence, Judge Humphrey found Brewington “to be irrational, dangerous and in need of significant counseling.” State's Ex. 140, p. 8. As a result, Judge Humphrey concluded that Brewington would not be permitted visitation with the children until he submitted to an evaluation by a court-approved mental health care provider to determine whether he was a danger “to the children, [Melissa] and/or to himself.” Id. at p. 17. Judge Humphrey determined that if the evaluation demonstrated that Brewington posed no danger, then he could request supervised visitation, and if supervised visitation went well, then he could request unsupervised visitation.

On August 24, 2009, Brewington filed a motion for relief from judgment, asserting that Dr. Connor and Judges Taul and Humphrey had “conspired to obstruct [his] access to evidence,” State's Ex. 142, p. 1, and that Judge Humphrey had “conducted himself in a willful, malicious, and premeditated manner” and had “caused irreparable damage to [the children] in [that] the Court mandated child abuse,” id. at 9. He further asserted that he would be “posting this pleading and ... letter” to his websites and “w[ould] be disturbing [sic] the information to the public through many avenues.” ⁶Id. Brewington attached as an exhibit to his motion a lengthy letter, wherein he asked of all readers: “Please copy this letter and send the letter along with your own personal comments and opinions to the Ethics & Professionalism Committee Advisor located in Dearborn County.” State's Ex. 142, attachment, p. 6. Brewington then posted the name of Heidi Humphrey, who is Judge Humphrey's wife, and the Humphreys' home address, although he did not identify Mrs. Humphrey as the judge's wife or the address as their residence. Mrs. Humphrey had previously served as an advisor on the Indiana Supreme Court's Judicial Ethics and Professionalism Committee, but that committee does not receive or investigate complaints about judicial performance. Furthermore, the committee's website did not post Mrs. Humphrey's home address, nor did it suggest or encourage the public to contact individual committee members with concerns about specific cases. The Humphreys received several letters complaining about Brewington's case at home.

[981 N.E.2d 592]

After the divorce, and for a period of approximately eighteen months, Brewington continued to send Dr. Connor vitriolic letters and to publicly accuse Dr. Connor of criminal behavior. For example, on January 20, 2010, Brewington posted on his blog that Dr. Connor was “using [custody] evaluations as a means to gain some kind of perverted sexual stimulation.” State's Ex. 197. Throughout 2010, Brewington posted at least fifteen articles discussing Dr. Connor. In addition, Brewington posted at least nine articles discussing Judge Humphrey, in which he described the judge as “corrupt,” State's Ex. 160, and accused him of engaging in “unethical/illegal behavior,” State's Ex. 170. He also repeatedly referred to the judge as a child abuser.

A grand jury investigation began in Dearborn County on February 28, 2011. Brewington testified before the grand jury and asserted that he did not know Mrs. Humphrey was Judge Humphrey's wife. On March 7, 2011, the grand jury returned a six-count indictment. The indictment charged Brewington with one count of intimidation as a Class A misdemeanor in relation to Dr. Connor (“Count I”); one count of intimidation as a Class D felony in relation to Judge Humphrey (“Count II”); a second count of intimidation as a Class A misdemeanor in relation to Mrs. Humphrey (“Count III”); one count of attempted obstruction of justice as a Class D felony in relation to Dr. Connor (“Count IV”); one count of perjury as a Class D felony for falsely stating during grand jury proceedings that he did not know that Mrs. Humphrey was Judge Humphrey's wife (“Count V”); and one count of unlawful disclosure of grand jury proceedings as a Class B misdemeanor (“Count VI”).

Prior to trial, the State filed a Motion for Confidentiality of Jurors' Names and Identities. Brewington did not file a response, nor did his attorney object at trial. The trial court granted the State's motion and impaneled an anonymous jury. On October 6, 2011, the jury convicted Brewington of every charge except Count VI. On October 24, 2011, the trial court sentenced Brewington to one year for Count I, two years for Count II, six months for Count III, two years for Count IV, and one year for Count V. The court ordered Brewington to serve Counts II and III concurrently and Counts I and IV concurrently, to be served consecutively with the other counts, for an aggregate term of five years. This appeal followed.

DISCUSSION AND DECISION⁷ I. ANONYMOUS JURY

Brewington contends that the trial court erred by granting the State's request for an anonymous jury. An anonymous jury is one in which certain identifying information, particularly jurors' names and addresses, is withheld from the public as well as from the parties. Major v. State, 873 N.E.2d 1120, 1125 (Ind.Ct.App.2007), trans. denied. An anonymous jury may implicate “a defendant's Fifth Amendment right to a presumption of innocence” because it raises a concern in jurors that the defendant is a dangerous person. Id. at 1126. Furthermore, impaneling an anonymous jury may interfere

[981 N.E.2d 593]

with a defendant's Sixth Amendment right to trial by an impartial jury by...