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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.
ATTORNEY FOR AMICUS CURIAE ACLU OF INDIANA: Gavin M. Rose, 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.
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
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.
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-2009 : 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
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.
Defendant was a disgruntled divorce litigant dissatisfied with a child-custody evaluator's recommendation. He waged an obsessive years-long campaign--including
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 does not lend itself well to proper parenting." Ex. 9 at 28-29. Defendant believed he was entitled to a full copy of the Doctor's file to challenge his findings, e.g., Ex. 26, but the Doctor refused to provide it without a court order or the former wife's consent because the file would reveal her confidential mental health information, e.g., Ex. 123 at 7, 12 (" We cannot release a copy of the case file to you without Ms. Brewington's consent, as it contains confidential information about her as well as the children in addition to yourself" ; " Without Ms. Brewington's consent or a Court order from Judge Taul, I am prohibited from releasing the confidential information contained within the file per state and HIPAA laws and regulations." ). Defendant and the Doctor soon came to an impasse.
At that point, Defendant began to bombard the Doctor's office with letters and faxes, sometimes multiple times per day, making threats of civil and criminal lawsuits and professional discipline, accompanied by repeated and pointed demands to withdraw as a witness in the case. E.g., Exs. 38-39, 41, 43-44. Moreover, he accused the Doctor and Carl Taul, the original trial judge, of improper ex parte communications with each other, until Judge Taul eventually recused and appointed Judge Humphrey as special judge. See Ex. 120 (Order Naming Special Judge). Defendant considered his campaign a success as to Judge Taul, referring to the recusal frequently in subsequent blog posts. Exs. 160, 162, 167, 171, 191, 194. But even though those actions had led the Doctor to the professional opinion that Defendant was " potentially dangerous," Tr. 131-32; Ex. 132 at 7, he remained in the case. The Doctor ultimately opined that Defendant is paranoid, manipulative, " manic-like," " unwilling to accept responsibility for his behavior," self-centered, unreceptive to criticism, and " has difficulty seeing an issue from another's perspective" --again, " a degree of psychological disturbance that . . . does not lend itself to proper parenting." Ex. 140 (Judgment and Final Order on Decree of Dissolution of Marriage (" Decree" ), Finding 8(K)).
At the final hearing, Defendant's in-court behavior--including slamming piles of books, outbursts of angry yelling, and inappropriate laughing--confirmed those impressions. See Ex. 140 (Decree, Finding 8(K)). His behavior was so volatile that the court had a sheriff's deputy in the courtroom whenever he was present. Tr. 237-38. Evidence at the hearing established that Defendant had also " made a less than subtle attempt to intimidate" his wife's counsel, who co-owned a fire-arms training business with her husband, by calling their home to seek weapons training from the business while the divorce was pending, Ex. 140 (Decree, Finding 8(S))--even though the business was not actively advertised, and was located well over an hour's drive from Defendant's home, Tr. 69-70. Moreover, Defendant bought a .357 Magnum handgun shortly after his former wife filed for divorce, but never returned it to her as the Decree required, Tr. 62, 325; Ex. 140 (Decree) at Conclusion 16 & Ex. D at 3--purportedly for concern about her mental stability, Ex. 148 at 8 (¶ 26). And Defendant posted online that the divorce case was " like playing with gas and fire, and anyone who has
seen me with gas and fire know[s] that I am quite the accomplished pyromaniac," and that authorities " would have to kill [me] to stop [me]" from posting confidential divorce details online. Ex. 140 (Decree, Findings 8(N)-(O)).
Relying on the Doctor's testimony about Defendant's mental health and dangerousness, evidence of Defendant's attempts at intimidating witnesses and opposing counsel, and the court's own observation of Defendant's behavior, the court awarded child custody to his former wife. Id. (Decree, Finding 8(S) & Conclusion 3). It further ordered Defendant's parenting time suspended pending a mental-health evaluation " to determine if he is possibly a danger to the children, Wife, and/or to himself," followed by a schedule of supervised parenting time transitioning to unsupervised. Id. (Conclusion 4).
Defendant considered that ruling tantamount to termination of his parental rights. See, e.g., Ex. 142 at 2 (¶ 7) (characterizing decree as " terminating [Defendant's] parental rights" ). But instead of taking the court-ordered steps to maintain his relationship with his children, he escalated his efforts at intimidating the Judge and the Doctor--efforts he was able to pursue full-time, since he was unemployed at all times during and after the divorce, supported by his mother's provision of a rent-free house and $2,500 monthly assistance. See Ex. 140 (Decree, Finding 9(A)). First, Defendant used the Internet (and at least implied that he would use mass mailings) to publicize the Judge's home address, Exs. 142 (attachment to Motion for Relief from Judgment), 160--leading the Judge to install a home-security system, keep a firearm ready at home for the family's protection, notify his children's schools about Defendant's threats, and arrange police escorts for his wife's commute to work, Tr. 252, 255. Then, Defendant used an ongoing series of Web posts to demonstrate his ability to find and publicize personal information about the Doctor--including his home address, Ex. 199 (causing him to fear for his children's safety, Tr. 166-67); a private family photo of him dancing at a family member's wedding, Tr. 201, Ex. 201; and details about his brother and late father, Tr. 96-97, Exs. 33, 193. He wrote in one post that the Doctor " may be a [p]ervert," Ex. 181; and in another about a supposedly hypothetical " Dr. Custody Evaluator" who " made me so mad I wanted to beat him/her senseless" and " punch Dr. Custody Evaluator in the face," Ex. 177. Then after that, Defendant showed up at an unrelated hearing where the Doctor was testifying, bragging afterward that his presence made the Doctor " a little nervous and from a psychological standpoint he probably should have been." Ex. 200. Indeed, Defendant's actions prompted the Doctor and his wife to show his picture to their children and co-workers and notify area law enforcement requesting additional protection, while keeping his threats secret from elderly family to avoid worrying them. Tr. 159-66, 203-04.
Any one of those statements in isolation might be no more than ambiguously threatening. But reading them as a whole within the totality of the circumstances shows that at least by the time he published the victims' addresses, (1) Defendant intended his long-running pattern of communications and conduct to be a credible implied threat to his victims' safety in retaliation for their lawful roles in his divorce case, and (2) his victims quite reasonably took his threats seriously. That is the essence of a constitutionally unprotected threat--one that Defendant strongly implied by the escalating tone and frequency and long-running duration of his diatribes (even the ones that in themselves were protected speech); his express recognition
that his actions would be perceived as threatening; the victims' knowledge of his psychological disturbance and dangerousness; and their firsthand observation of his obsessive, volatile, and violent behavior. Within that context, Defendant telling his victims that he knew where they lived was clearly intended to make them justifiably feel unsafe even in their own homes. And the jury's perjury verdict implicitly recognized that intent, finding that Defendant lied to the grand jury about his true motives for posting the Judge's address. We will discuss the context of Defendant's statements in greater detail in connection with each victim.
Discussion and Decision
I. Intimidation and Free-Speech Limitations on " Threats" to Commit Defamation
The grand jury indicted Defendant for intimidating the Judge under Indiana Code section 35-45-2-1(a)(2) (2008), for " communicat[ing] a threat to" the Judge, with the intent to " place[ him] in fear of retaliation for [the] prior lawful act" of issuing the divorce decree. App. 22 (emphasis added). Defendant's indictment for attempted obstruction of justice is also rooted in intimidation--specifically, alleging that he tried to " intimidate and/or harrass [ sic ]" the Doctor to prevent him from testifying in the divorce case. App. 24 (emphasis added). Both charges therefore depend on a " threat" as defined by statute:
" Threat" means an expression, by words or action, of an intention to:
(1) unlawfully injure the person threatened or another person, or damage property;
(2) unlawfully subject a person to physical confinement or restraint;
(3) commit a crime;
(4) unlawfully withhold official action, or cause such withholding;
(5) unlawfully withhold testimony or information with respect to another person's legal claim or defense, except for a reasonable claim for witness fees or expenses;
(6) expose the person threatened to hatred, contempt, disgrace, or ridicule;
(7) falsely harm the credit or business reputation of the person threatened; or
(8) cause the evacuation of a dwelling, a building, another ...