Dorothy Williams v. State of Indiana ( 2016 )

FILED
Aug 26 2016, 8:21 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer L. Koethe Gregory F. Zoeller
LaPorte, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dorothy Williams, August 26, 2016
Appellant-Defendant, Court of Appeals Case No.
46A03-1511-CR-1913
v. Appeal from the LaPorte Superior
Court
State of Indiana, The Honorable Michael S.
Appellee-Plaintiff. Bergerson, Judge
Trial Court Cause No.
46D01-1411-F5-433
Najam, Judge.
Statement of the Case
[1] Dorothy Williams appeals from her conviction for disorderly conduct, as a
Class B misdemeanor, following a jury trial. She asserts on appeal that there is
insufficient evidence to support her conviction because her conviction was
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 1 of 14
based on political speech, which Williams raised as an affirmative defense
under article 1, section 9 of the Indiana Constitution. Where, as here, the
defendant is not the original subject of a police investigation, 1 the defendant
demonstrates that her expression was unambiguous political speech when she
shows that the focus of her speech exclusively concerned government action.
Such speech must both be directed at state actors and refer to state actors or
their conduct. Speech directed toward a private party or that refers to a private
party, or the conduct of a private party, is politically ambiguous for purposes of
an affirmative defense under art. 1, sec. 9. And when the focus of speech is
politically ambiguous, a reasonable fact-finder may reject the asserted
affirmative defense.
[2] If the defendant does not meet her burden of showing that her speech was
unambiguously political, the State’s impairment of her speech—e.g., the
defendant’s arrest for disorderly conduct—is constitutional so long as the State
acted rationally in impairing the speech. However, if the defendant meets her
burden of showing unambiguous political speech, the burden shifts to the State
to demonstrate that the defendant’s exercise of her speech was an abuse of her
right to that expression. While the words used by the defendant do not matter
to this analysis, the State can meet this heightened burden in either of the
1
Our supreme court has held that a person of interest to an investigation who refuses to cooperate with an
investigating officer is not protected by the political-speech defense under art. 1, sec. 9. Barnes v. State, 946
N.E.2d 572, 578 (Ind.), aff’d on reh’g, 953 N.E.2d 473 (2011), superseded by statute on other grounds, see Cupello v.
State, 27 N.E.3d 1122, 1124 (Ind. Ct. App. 2015).
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 2 of 14
following circumstances: (1) the defendant’s volume had more than a fleeting
interference with a private interest,2 or (2) the defendant interfered with an
ongoing police investigation.3
[3] Here, during her encounter with police at her home, Williams directed some of
her speech toward her neighbors, and she repeatedly referred to herself and her
own conduct during the encounter. Accordingly, the focus of her speech was
politically ambiguous for purposes of the art. 1, sec. 9 affirmative defense, and
the fact-finder was free to reject Williams’ affirmative defense. As her speech
was politically ambiguous, the State’s impairment of her speech was
constitutional so long as it was rational. And it was here: the State presented
evidence that some of her neighbors, while in their homes, were actually alerted
to Williams’ encounter with police by the volume of her speech, and the State
further showed that numerous officers diverted their attention away from the
task at hand because of Williams’ speech. Accordingly, we affirm Williams’
conviction for disorderly conduct, as a Class B misdemeanor.
2
E.g., Madden v. State, 786 N.E.2d 1152, 1157 (Ind. Ct. App. 2003) (holding that the defendant’s political
speech was an abuse of the right to speak when her speech was “loud enough to draw a crowd” that
disrupted traffic), trans. denied.
3
E.g., Dallaly v. State, 916 N.E.2d 945, 953-54 (Ind. Ct. App. 2009) (holding that the defendant’s political
speech was an abuse of the right to speak when it interfered with an officer’s ability to function as a law
enforcement officer, which, in turn, created a traffic hazard).
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 3 of 14
Facts and Procedural History
[4] Around 6:00 a.m. on November 21, 2014, six to ten officers of the Michigan
City Police Department went to Williams’ residence on Highland Avenue to
serve an arrest warrant on Robert Sanders, Jr. Sanders is Williams’ brother,
and, according to his driver’s license records, Sanders lived at Williams’
residence. Williams’ minor niece, V.G., also lived at that residence, as did
Williams’ elderly and disabled mother, Rady Sanders. Rady is paralyzed from
the waist down, and Williams is responsible for Rady’s care.
[5] Detective William Henderson knocked on Williams’ front door, and Williams
answered. Detective Henderson asked Williams if Sanders was at the residence
and informed Williams that he had an arrest warrant for Sanders. Williams
“started yelling” and said that Sanders was not there. Tr. at 59. Williams
appeared “verbally and completely irate that [the officers] were there” and
repeatedly told the officers that Sanders “didn’t live there.” Id. at 60. When
Detective Henderson asked for permission to enter the residence to ensure that
Sanders was not present, Williams “slammed the door in [his] face.” Id.
[6] Detective Henderson “continued to try and [make] verbal contact” with
Williams over the next ten to fifteen minutes. Williams “continued yelling” at
him in response. Id. at 61. Detective Henderson then contacted a prosecutor
and requested a search warrant.
[7] Pursuant to protocol, while they awaited the search warrant Detective
Henderson instructed the other officers at the scene “to make sure that [they]
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 4 of 14
maintained a solid perimeter and nobody came in or out” of the residence. Id.
at 62. Detective Henderson requested the presence of additional officers to
assist with maintaining that perimeter. Shortly thereafter, fifteen to twenty
officers total were maintaining a perimeter around Williams’ residence. The
officers used unmarked vehicles and did not activate any vehicular emergency
lights or sirens.
[8] At approximately 7:00 a.m., Williams and V.G. exited the front door of the
residence. Williams walked V.G. through the police perimeter to a nearby car,
which took V.G. to her school. When Williams walked back towards her
residence, Detective Henderson stopped her at the police perimeter and
informed her that he could not let her reenter the residence “for safety reasons”
because, first, once a person exits a surrounded residence, “it’s one less person
[the officers] have to worry [about] that has access to any firearms[] or anything
that could harm [others],” and, second, if the subject of the search warrant is
inside the residence, the person who has come outside can “see where [the
officers] are tactically around [the residence], so if [the subject] were to try to
plan any assault . . . [the officers will have] given up [their] positions . . . .” Id.
at 140-41.
[9] “After informing her of that,” Williams grew “irate” and began “yelling,
screaming, [and] cussing” at the officers. Id. at 65. Detective Henderson asked
her to “please be quiet” “several times,” to no avail. Id. at 140. Officers
informed Williams that she was not under arrest, and Williams loudly asked,
“You mean to tell me you are not going to let me enter my motherf***ing
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 5 of 14
house?” Id. at 66. Williams then loudly declared, “I’m going back in my
house,” and that she was “going back in here to see about my mother, you
know my mother’s in here and she’s sick, I’m going back in here to see her.”
Id. at 297-98. When informed that she would be arrested for disorderly conduct
if she continued her loud outburst, Williams loudly informed the officers that
she “doesn’t care about going to jail.” Id. at 66.
[10] In response to Williams’ outburst, her neighbors came out of their nearby
residences to see what was going on “like there was a show.” Id. at 68, 155.
When officers continued to deny Williams reentry into her residence, Williams
loudly asked the officers how they could “deny my right to go back in my own
home” when she had not committed any crime and was not under arrest. Id. at
275. Williams then proceeded to “tell my neighbors to look and see how the
Michigan City police department [is] treating me . . . and an elderly woman[.]”
Id. at 276.
[11] Williams’ outburst required Detective Henderson to turn his “back to the
residence[] and . . . fully engage[] . . . with Ms. Williams rather than keep[ his]
post around the house,” which “could’ve been a big danger” to Detective
Henderson and other officers. Id. at 176. Williams’ outburst also “divert[ed]
some of [the] . . . officers” who were responsible for “dealing with the tactical
surrounding [of] that residence” from that responsibility “[to] being concerned
with [Williams’] demeanor and how she was going to react with the other
officers [who] were dealing directly with her.” Id. at 102. Williams’ outburst
lasted approximately two to four minutes before officers arrested her for
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 6 of 14
disorderly conduct. Upon obtaining a search warrant and searching Williams’
residence, the officers found Sanders hiding in the attic.
[12] The State charged Williams with assisting a criminal, as a Level 5 felony, and
disorderly conduct, as a Class B misdemeanor. A jury acquitted Williams of
assisting a criminal, but it found her guilty of disorderly conduct. The trial
court entered judgment and sentence accordingly. This appeal ensued.
Discussion and Decision
Overview
[13] Williams contends that the State presented insufficient evidence to support her
conviction. In reviewing a sufficiency of the evidence claim, we do not reweigh
the evidence or assess the credibility of the witnesses. Sharp v. State, 42 N.E.3d
512, 516 (Ind. 2015). Rather, we look to the evidence and reasonable
inferences drawn therefrom that support the verdict, and we will affirm the
conviction if there is probative evidence from which a reasonable jury could
have found the defendant guilty beyond a reasonable doubt. Id.[14] To prove disorderly conduct, as a Class B misdemeanor, the State had to show
that Williams recklessly, knowingly, or intentionally made unreasonable noise
and continued to do so after being asked to stop. Ind. Code § 35-45-1-3(a)(2)
(2014). On appeal, Williams does not suggest that the State failed to present
sufficient evidence to demonstrate that she committed disorderly conduct.
Rather, she maintains that the evidence underlying her conviction shows that
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 7 of 14
her speech was political speech, an affirmative defense under article 1, section 9
of the Indiana Constitution.
[15] Article 1, section 9 states: “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.” As our supreme court has explained:
Because one’s conduct or expression may be free speech
protected under the Indiana Constitution, an application of the
disorderly conduct statute must pass constitutional scrutiny. We
employ a two-step inquiry in reviewing the constitutionality of an
application of the disorderly conduct statute: we (1) “determine
whether state action has restricted a claimant’s expressive
activity” and (2) “decide whether the restricted activity
constituted an ‘abuse’ of the right to speak.” Whittington v. State,
669 N.E.2d 1363, 1367 (Ind. 1996). The first prong may be
satisfied based solely on the police restricting a claimant’s loud
speaking during a police investigation.[4] Id. at 1370. The second
prong hinges on whether the restricted expression constituted
political speech. Id. at 1369-70. If the claimant demonstrates
under an objective standard that the impaired expression was
political speech, the impairment is unconstitutional unless the
State demonstrates that the “magnitude of the impairment” is
slight or that the speech amounted to a public nuisance such that
it “inflict[ed] ‘particularized harm’ analogous to tortious injury
on readily identifiable private interests.” Id. (quoting Price v.
State, 622 N.E.2d 954, 964 (Ind. 1993)). If the expression,
viewed in context, is ambiguous, it is not political speech, and we
4
The State does not suggest that Williams failed to satisfy this requirement.
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 8 of 14
evaluate the constitutionality of the impairment under standard
rationality review. Id. at 1370.
Barnes v. State, 946 N.E.2d 572, 577 (Ind.), aff’d on reh’g, 953 N.E.2d 473 (2011),
superseded by statute on other grounds, see Cupello v. State, 27 N.E.3d 1122, 1124
(Ind. Ct. App. 2015).
[16] Here, we first consider whether Williams’ speech was unambiguous political
speech under art. 1, sec. 9. We then “evaluate the constitutionality” of the
State’s “impairment” of Williams’ speech. See id.Political Speech
[17] We first consider whether Williams’ speech was political speech for purposes of
the art. 1, sec. 9 affirmative defense. We review the defendant’s speech under
an objective standard. Id. However, Williams carried the burden of proof to
demonstrate to the fact-finder that her expression was unambiguously political.
Whittington, 669 N.E.2d at 1370. As the fact-finder rejected her asserted
defense, Williams now appeals from a negative judgment. In such appeals, “we
will reverse only if the evidence is without conflict and leads inescapably to the
conclusion that the [appellant] is entitled” to her requested relief. Barnett v.
State, 867 N.E.2d 184, 186 (Ind. Ct. App. 2007), trans. denied.
[18] As our supreme court has explained:
Expressive activity is political, for the purposes of [art. 1, sec. 9],
if its point is to comment on government action, whether
applauding an old policy or proposing a new one, or opposing a
candidate for office or criticizing the conduct of an official acting
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 9 of 14
under color of law. The judicial quest is for some express or
clearly implied reference to governmental action.
Whittington, 669 N.E.2d at 1370 (footnote omitted). Thus, “political expression
focuses on the conduct of government officials and agents.” Id. at 1370 n.11.
“In contrast, where an individual’s expression focuses on the conduct of a
private party—including the speaker himself or herself—it is not political.” Id.
at 1370. And, as our case law has applied art. 1, sec. 9, expression that is
directed toward a private party or refers to the conduct of a private party, even
if in part, does not demonstrate protected political expression.
[19] For example, in Price, the defendant responded to an officer who had
threatened to arrest her by saying, “F--- you. I haven’t done anything.” 622
N.E.2d at 957. Although the parties before the court in Price did not challenge
whether that assertion was political, in Whittington the court revisited that
language and concluded that it was “not political” because it was “a defense of
[the defendant’s] own conduct.” Whittington, 669 N.E.2d at 1370 (discussing
Price, 622 N.E.2d at 957). Likewise, on the facts before it in Whittington our
supreme court concluded that the defendant’s statements that he “had not done
anything and that the other witnesses were lying” were not political statements
because they did not refer to the conduct of state actors. Id. at 1366, 1370-71.
The court in Whittington further held that other statements made by the
defendant were not political because they “were not directed toward” state
actors but, rather, were “directed . . . toward his sister’s boyfriend, who may
have been the one who summoned the police.” Id. at 1370-71.
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 10 of 14
[20] This court has likewise concluded that speech in which the speaker refers to
him- or herself, even when prompted by a police officer’s conduct or
statements, and even when coupled with political statements, permits a
reasonable fact-finder to conclude that the focus of the entirety of the speech is
ambiguous and, therefore, not political. For example, in Anderson v. State, 881
N.E.2d 86, 90 (Ind. Ct. App. 2008), we held that the defendant “asserting a
right to be where he was, which is a comment on his own behavior,” rendered
his speech not political. In Blackman v. State, 868 N.E.2d 579, 586 (Ind. Ct.
App. 2007), trans. denied, we held that the defendant’s comment that she had
“every right to be there, that she did not have to leave the scene” focused on her
own conduct, and, therefore, it was not political, even though it was in direct
response to officer conduct that the defendant had asserted to be
unconstitutional. In Wells v. State, 848 N.E.2d 1133, 1150 (Ind. Ct. App. 2006),
we held that a politician’s statement upon arrest that he had been set up by his
political adversaries was not political because it “reasonably [could] be viewed
simply as an attempt . . . to ‘talk his way out’ of . . . further investigation . . . .”
And in Johnson v. State, 719 N.E.2d 445, 449 (Ind. Ct. App. 1999), we held that
the defendant’s assertion to an officer that the defendant was not going to
attend classes required for his probation was not political because it could have
been interpreted as focusing on the defendant’s own conduct rather than state
action.
[21] However, where the defendant’s speech was directed exclusively at state actors
and focused exclusively on the actions or conduct of state actors, we have
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 11 of 14
repeatedly concluded that the speech is political.5 E.g., Dallaly v. State, 916
N.E.2d 945, 952-53 (Ind. Ct. App. 2009); U.M. v. State, 827 N.E.2d 1190, 1193
(Ind. Ct. App. 2005); Madden v. State, 786 N.E.2d 1152, 1156-57 (Ind. Ct. App.
2003), trans. denied; Johnson v. State, 747 N.E.2d 623, 630-31 (Ind. Ct. App.
2001); Shoultz v. State, 735 N.E.2d 818, 826-27 (Ind. Ct. App. 2000), trans.
denied.
[22] Applying that law here, we hold that a reasonable fact-finder could have
concluded that the focus of the entirety of Williams’ speech was ambiguous
and, therefore, not political. During her encounter with the officers outside of
her house, Williams said the following: “I don’t care if I go to jail”; “I’m going
back in my house”; “my mother’s in here and she’s sick, [so] I’m going back in
here to see her.” Tr. at 66, 297-98. Williams also directed part of her speech
toward her neighbors, stating: “look and see how the Michigan City police
department [is] treating me . . . and an elderly woman[.]” Id. at 276. Williams’
statements refer to herself or her mother; they refer to her own conduct; and
they were directed at least in part toward private parties. As our case law
applies art. 1, sec. 9, those statements are plainly not political. Thus, a
reasonable fact-finder could have concluded that the focus of the entirety of her
speech was ambiguous and, therefore, that Williams’ did not meet her burden
5
In one recent case, a panel of this court held that the defendant’s assertion that she “did not need to go”
was political in light of the overall context of her speech, which was a criticism of officers for, in the
defendant’s view, unjustly stopping African-Americans. Jordan v. State, 37 N.E.3d 525, 532-33 (Ind. Ct. App.
2015). Williams does not argue that her facts are analogous to those in Jordan. See Ind. Appellate Rule
46(A)(8)(a).
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 12 of 14
to establish her affirmative defense. Thus, we reject Williams’ argument to the
contrary on appeal.
State’s Impairment of Williams’ Expression
[23] Having concluded that Williams’ speech was not political, we next “evaluate
the constitutionality of the [State’s] impairment [of her expression] under
standard rationality review.” Barnes, 946 N.E.2d at 577. In that review, we
determine whether the State rationally could have concluded that Williams’
expressive activity, because of its volume, was an “abuse” of the right to speak.
Whittington, 669 N.E.2d at 1371. In other words, we consider whether
Williams’ speech was “a threat to peace, safety, and well-being.” Id.
[24] Applying that standard in Whittington, our supreme court held:
We easily conclude that Whittington has not negated “every
conceivable basis” for the state action in his case.
In Price we abstractly observed that “abating excessive noise is an
objective our legislature may legitimately pursue.” On the facts
of this case, it is reasonably conceivable that the loud outbursts in
the concrete circumstances of this case could have agitated other
persons in the apartment, sparked additional disruptions of
[Officer] Finnell’s investigation, or interfered with his ability to
manage the medical crew and the alleged crime scene. The noisy
tirade could have threatened the safety of Whittington’s sister by
aggravating her trauma or by distracting the medical personnel
tending her injury. Finally, the volume of the speech
undoubtedly made it highly annoying to all present. The state
could therefore have believed Whittington’s outbursts constituted
an “abuse” of the right to speak and, as such, fell within the
purview of the police power.
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 13 of 14
Id. (citations omitted; emphases added).
[25] The facts presented by the State here are far more concrete than the
hypothetical harms held to be sufficient in Whittington. Here, the State
presented evidence that, as a result of the volume of Williams’ speech, her
neighbors came out of their homes to see what was going on. The State also
presented evidence that numerous officers were distracted from the task at
hand—securing a perimeter around the residence—by Williams’ outburst. As
such, a reasonable fact-finder could have easily concluded that Williams’
outburst was an abuse of her right to speak. Accordingly, the State’s arrest of
Williams was rational and, therefore, constitutional. See Barnes, 946 N.E.2d at
577. We affirm Williams’ conviction.
Conclusion
[26] In sum, we hold that a reasonable fact-finder could conclude that the focus of
Williams’ speech was politically ambiguous and, therefore, that she did not
meet her burden under art. 1, sec. 9. We further hold that the State acted
rationally in impairing Williams’ speech. Thus, we affirm her conviction.
[27] Affirmed.
Vaidik, C.J., and Baker, J., concur.
Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016 Page 14 of 14