Snell v. State, 02A04-0606-CR-302.
| Decision Date | 18 May 2007 |
| Docket Number | No. 02A04-0606-CR-302.,02A04-0606-CR-302. |
| Parties | Phyllis SNELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Lisa M. Dirig, Allen County Public Defender's Office, Fort Wayne, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Scott L. Barnhart, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Phyllis Snell appeals from her conviction, after a jury trial, of count I, resisting law enforcement, a Class A misdemeanor, and count II, disorderly conduct, a Class B misdemeanor. Snell challenges the trial court's refusal of her tendered jury instructions related to constitutionally protected speech. We reverse, holding that the evidence supports giving the tendered instructions, and that Allen County Local Criminal Rule 9, requiring requests for instructions to be submitted prior to trial, is incompatible with the Indiana Trial Rule 51(C) allowing such requests at the close of evidence.
On November 26, 2005, Maurice Brown helped a neighbor move into an apartment. After Brown left the neighbor's apartment, the neighbor suspected him of stealing her wallet from her purse. She walked down the street to Brown's home to confront him about the missing wallet. After Brown "started cussing and going off," the neighbor called police. Police officers arrived within minutes.
Snell was at Brown's home when the police arrived. The police first spoke with the neighbor. The police then went up to Brown's home, where they could see Brown through the open door. The neighbor watched from the top step of Brown's porch. She did not enter the house.
When the police officers went into Brown's home, Brown talked with them about the accusations that he had taken the wallet. However, Brown became angry and began loudly denying the theft and yelling to the neighbor, who was still outside of his house. When Brown refused the officers' request to compose himself, the police advised Brown he was being arrested for disorderly conduct. The officers ordered him to place his hands behind his back. Brown began to turn around. One officer knelt on him to hold him, while the other officer "took Brown to the ground." Tr. at 95.
While the police officers were in Brown's home, Snell was at first seated on a couch in the room with Brown. When the officers attempted to arrest Brown, Snell began to call out to the officers to stop hurting Brown. Snell stood up from a couch, approached the officers as they were attempting to place Brown under arrest, and continued screaming. Officers repeatedly informed Snell that she needed to calm down, stay back, and sit down. One officer, who was trying to keep Brown down, had to stop assisting in the arrest to keep Snell away and to ensure the remaining officers were not attacked. Snell stated, "Y'all motherfucking doing him wrong." Tr. at 111, 117-18. When Snell did not comply with the police officer's order to be quiet and sit down, another officer placed Snell under arrest. As the officer attempted to grab her wrist, Snell pulled away and tried to evade the officer.
On November 26, 2005, Snell was charged with resisting law enforcement, as a Class A misdemeanor, and disorderly conduct, as a Class B misdemeanor. Snell filed a Motion to Dismiss, and Memorandum of Law, in which she asserted her comments and noises were protected political speech directed towards the actions of the police officers. Her Motion to Dismiss was denied. Thereafter, a jury trial was conducted and, on April 20, 2006, Snell was convicted on both counts. The trial court sentenced Snell on count I to 365 days, suspended, and a twenty-five dollar fine, and on count II to 180 days, suspended, and a twenty-five dollar fine. Snell now directly appeals.
Snell challenges the trial court's refusal of her tendered jury instructions1 pertaining to constitutionally protected speech, arguing her instructions were supported by sufficient evidence and the local rule used to bar the tendered instructions is incompatible with Indiana Trial Rule 51.
The trial court has broad discretion in the manner of instructing the jury and we review its decision thereon only for an abuse of that discretion. Stringer v. State, 853 N.E.2d 543, 548 (Ind.Ct.App. 2006). We review the refusal of a tendered instruction by examining whether the tendered instruction correctly states the law, whether there is evidence in the record to support giving the instruction, and whether the substance of the tendered instruction is covered by other given instructions. Springer v. State, 798 N.E.2d 431, 433 (Ind.2003). Jury instructions are to be considered as a whole and in reference to each other. Stringer, 853 N.E.2d at 548. The ruling of the trial court will not be reversed unless the instructions, when taken as a whole, misstate the law or mislead the jury. Kelly v. State, 813 N.E.2d 1179, 1185 (Ind.Ct.App.2004), trans. denied. Before a defendant is entitled to a reversal, he must affirmatively show that the erroneous instruction prejudiced his substantial rights. Stringer, 853 N.E.2d at 548.
The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. Gravens v. State, 836 N.E.2d 490, 493 (Ind.Ct.App.2005), trans. denied. In instructing a jury, the trial court has a statutory duty to state to the jury all matters of law that are necessary for its information in giving its verdict. Ind.Code § 35-37-2-2(5); Dayhuff v. State, 545 N.E.2d 1100, 1102 (Ind.Ct.App.1989), trans. denied. Each party to an action is entitled to have the jury instructed on his particular theory of complaint or defense. Collins v. Rambo, 831 N.E.2d 241, 245 (Ind.Ct.App.2005) (quotations omitted). "As a general rule, a defendant in a criminal case is entitled to have the jury instructed on any theory of defense which has some foundation in the evidence." Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct.App.2001). This is so even if the evidence supporting the defense is weak and inconsistent. Id. However, the evidence must have some probative value to support the defense. Id.
Snell was convicted of disorderly conduct. A person commits disorderly conduct as a Class B misdemeanor when she recklessly, knowingly, or intentionally makes unreasonable noise and continues to do so after being asked to stop. See Ind. Code § 35-45-1-3(a)(2). Article I, section 9 of the Indiana Constitution provides, "No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever; but for the abuse of that right, every person shall be responsible."
Prior to trial, Snell submitted two jury instructions addressing the protected speech provision of Article I, Section 9 of the Constitution of Indiana. The first proposed instruction states:
Protected Speech
You, as the trier of fact, are to decide whether the statements Ms. Snell is accused of saying fall under the protections of the [sic] Article I, Section 9 of the Indiana Constitution, which states:
Section 9. No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.
This requires a two step process, you must first decide whether a state action has, in the concrete circumstances of the case, restricted Ms. Snell's opportunity to engage in expressive activity. Second, if it has, you must decide whether the restricted activity constitutes an "abuse" of the right to speak under the Indiana Constitution.
Appellant's App. at 26. The second proposed instruction states:
You as the trier of fact, must first determine whether the police officer's action in this case restricted Ms. Snell's opportunity to engage in expressive activity. Under the Indiana Constitution, expressive conduct is to be given a broad interpretation. It extends to any subject whatever, and reaches every conceivable mode of expression. Expressive activity is restricted when the state imposes a direct and significant burden on the person's opportunity to speak their [sic] mind, in whatever manner the speaker deems most appropriate[.]
Following the close of evidence and prior to closing argument, Snell submitted a "Price-type" instruction2 to the trial court. Tr. at 136. The trial court refused the tendered instruction, explaining: "because of the local rule and also because I don't feel that some of the testimony I heard as what she was saying, what she was saying in a loud voice, what she was saying after she was told to stop, is protected." Tr. at 139.
Snell argues the trial court erred in denying her tendered instructions, claiming there was sufficient evidence to find her words were political speech. She asserts her comments went directly to the legality and appropriateness of the police conduct toward Brown, and as such, the tendered instruction was warranted.
We must first determine whether the tendered instructions correctly state the law. A determination of the constitutionality of an application of the disorderly conduct statute involves first deciding whether state action has restricted a claimant's expressive activity. Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996). Second, if it has, the court must decide whether the restricted activity constituted an abuse of the right to speak. Id. Snell's tendered instructions correctly state the law.
We next determine whether there is evidence in the record to support the giving of the instructions. With respect to the first prong of the test, we note that the right to speak...
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