Brown v. State

Decision Date20 August 1997
Docket NumberNo. 49A02-9603-CR-158,49A02-9603-CR-158
PartiesDwayne M. BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court
OPINION

ROBERTSON, Judge.

Dwayne M. Brown, pro se, appeals his convictions, after a trial by jury, of seven counts of Ghost Employment for which he was sentenced to enhanced, concurrent three-year sentences (all suspended). Brown raises five issues, which we restate and expand into six, none of which constitutes reversible error.

FACTS

The facts in the light most favorable to the verdict reveal that Brown was elected to the office of Clerk of the Indiana Supreme Court, the Court of Appeals, and the Tax Court. While in office, Brown actively campaigned for two other elected offices--Indiana Attorney General and U.S. Representative. Each of the seven counts of the indictment charged that Brown had used state employees, while they were being compensated by the State, in furtherance of his political campaigns as proscribed by the ghost employment statute, Ind.Code 35-44-2-4(b), which reads as follows:

A public servant who knowingly or intentionally assigns to an employee under his supervision any duties not related to the operation of the governmental entity that he serves commits ghost employment, a Class D felony.

The first three counts of the indictment involved a state employee hired by Brown in 1992. At the time this employee was hired, Brown told her that she would be working on his campaign. Brown told others in the office that this employee did not need to be trained to perform any of the office duties because she would be doing political work. During the first week of work, Brown requested that this employee attend the movie "The Pelican Brief" with him during office hours to allow her to learn more about the political and legal process. After that first week of work, Brown directed that the employee receive a $2,500.00 bonus from the State. Brown also requested this employee to attend a political fund raising event on his behalf during office hours. Finally, Brown directed this employee to spend office hours drawing sketches which were to have been used for Brown's campaign posters.

The fourth and fifth counts of the indictment pertain to another state employee hired by Brown to serve in a position described as "press secretary intern." Brown assigned this employee, during office hours, to research the voting record of the incumbent U.S. Representative Brown had hoped to unseat. Brown also directed this employee to attend a fund raising event held for his benefit on a Saturday for which the employee was compensated by the State at the rate of $50.00 per hour.

The sixth and seventh counts of the indictment relate to an incident in which Brown directed two other state employees to accompany him on a trip, during office hours, to Monroe County where he participated in a debate-style luncheon in conjunction with his campaign for Attorney General. One of these employees was directed to take notes regarding the other candidates' speeches and performances.

Additional facts are supplied as necessary.

DECISION
I. Motion to Dismiss

Brown argues the trial court erred in denying his motion to dismiss the charges against him based on his assertion that he could not justly be prosecuted because he would be denied his constitutional and statutory rights to an appeal from an adverse judgment based on his allegations that all members of the Indiana Supreme Court, the Court of Appeals, and the Tax Court are prejudiced against him. In a similar vein, Brown has filed a motion in this Court requesting that all of Indiana's appellate judges recuse themselves based upon their alleged prejudice against him. 1 Brown asserts that all of Indiana's appellate judges are prejudiced against him on the basis of two orders issued by the supreme court which ultimately prohibited him from exercising any control over the operations of the Clerk's office. These orders were issued "after consultation with the Indiana Court of Appeals and the Indiana Tax Court ... with the agreement of all three courts." The pertinent part of the second order reads as follows:

The Indiana Supreme Court today learned of the indictment of Dwayne M. Brown, Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court. He is charged with seven counts of ghost employment. The charges arise from his alleged assignment of Clerk's Office employees to tasks unrelated to his or their official duties.

Ghost employment is a class D felony. Ind.Code 35-44-2-4. These substantial charges allege a misappropriation of the personnel necessary to effective processing of the appeals which individual litigants bring before these courts. These charges represent a clear and present danger to the integrity of that process.

Additionally, Brown alleges prejudice based on the following public statements made by the Chief Justice:

Although the Clerk is not an employee of the Court [but] rather an elected official elected by the public, he is nevertheless a part of the judicial department of government. The Court takes this as a serious matter that we need to inquire about. I expect that we will spend the next several days accumulating what we can by way of evidence and [assessing] the legal framework in which this has alleged to have occurred and make some decision about whether there is any action the Court can or ought to take.

* * * * * *

We take these claims to be very serious and distressing, especially the sexual harassment claims. [We are] concerned about the kind of allegations that have been made. Even though the Clerk is not an employee, it is still part of the judicial system, and we have a responsibility for seeing to it that the judicial system is run in the best way we can.

* * * * * *

There are no specific rules barring the Clerk from doing outside legal work, however, the job of Clerk has always been considered full-time employment. The notion that anyone could treat that job as part-time employment never entered into anyone's consideration. [Brown alleges that the Chief Justice went on to suggest that an ethical problem could arise should one of Brown's private law clients file an appeal in the Clerk's office.]

* * * * * *

[After the Supreme Court issued its order prohibiting Brown from exercising control over the Clerk's office, the Chief Justice stated]:

Obviously, if he needs to come into the Clerk's office for any personal reasons--to obtain possessions that are his own in his office--that will be worked out.... Whether he will be permitted there or not will depend on why he needs to be there, and that will be decided on a day to day basis. We expect this will not be a problem in light of the fact that he largely has not been present in the office over the last several months.

Judges have a duty to promote public confidence in the impartiality of the judiciary. Ind.Judicial Conduct Canon 2; Tyson v. State, 622 N.E.2d 457, 459 (Ind.1993). A judge should recuse himself under circumstances in which a reasonable person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge's impartiality. Id. Accordingly, even the appearance of partiality requires recusal. Thakkar v. State, 644 N.E.2d 609, 612 (Ind.Ct.App.1994). The facial expressions, body language, and oral communications of a judge can result in the appearance of judicial bias requiring recusal. Jud.Canon 3(B)(5). Nevertheless, the law presumes that judges are not biased or prejudiced. Terry v. State, 602 N.E.2d 535, 540 (Ind.Ct.App.1992). Adverse rulings and findings do not, in and of themselves, establish a judge's bias or prejudice. Id. Additionally, the rule of necessity provides that, in order that the law is not powerless to act, an otherwise disqualified judge may nevertheless preside over a case if there is no sufficient replacement. Adkins v. City of Tell City, 625 N.E.2d 1298, 1304 (Ind.Ct.App.1993).

In the present case, the orders entered by the supreme court and the statements made by the Chief Justice pertain to the orderly operation of the Clerk's office. None of the facts and circumstances involved provide a reasonable basis to support Brown's allegations that any, much less all, of the judges comprising the Indiana appellate judiciary are prejudiced against him. Brown has not made the requisite showing of even the appearance of partiality.

Therefore, Brown has failed to establish that all Indiana appellate judges must, as a matter of law, recuse themselves from the case at bar. Moreover, we cannot conclude that the law would be powerless to impose criminal sanctions upon the felonious conduct of a former clerk of the state appellate courts simply because that person's appeal must necessarily be heard by that same appellate judiciary. Therefore, the trial court did not err in denying Brown's motion to dismiss the indictment against him, nor are all members of the Indiana appellate judiciary required to recuse themselves.

II. Sufficiency

Brown analyzes the evidence in the light most favorable to himself to support his argument that the evidence is insufficient to support his convictions. Brown points out that the employee who attended "The Pelican Brief" with him paid for the tickets, and Brown and she returned to the office immediately after the movie was over. Brown asserts that the time devoted by state employees during office hours on his political activities was not as substantial as the State had asserted. Brown argues that the employee who attended his fund raiser as a hostess did so as an independent contractor for $175.00 (3.5 hours X $50.00 per hour). Brown asserts that he had instructed this employee to pay the money back to the State (although she did not)....

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