*1 the same result would reach vigorously criticiz We she had been testifiedthat objected to instruction if counsel had public, that even urinating for ing Morrison of the of # 6 as an incorrect statement law he could have Morrison Dinkins had told according manslaughter, and voluntary we clubhouse, Dinkins and that gone review this case terms of trial ly were to stop her tirade telling her to laughing, was giving judge "Any error. error and two other Garreffa against Morrison. error if the of an instruction is harmless that Morri witnesses testified prosecution clearly sustained the evi conviction is shooting nothing to Dinkins before son said jury properly and the could not have dence him. Cheney found otherwise." v. State testimony, do not see an In all this we Ind., In Morrison's predicate for sudden heat suffi evidentiary case, jury rejected testimony his of self- probability a reasonable cient to establish Therefore, in the conviction for defense. instruction the for the erroneous that but tentionally knowingly killing a human of convicted Morrison vol jury would have murder, is, being, clearly that was sus Therefore, Morrison untary manslaughter. And, there by the evidence. because tained prejudicial result neces has not shown the for the existence of no factual basis was a claim of ineffective sary prevail on heat, prop jury could not have sudden IV, of counsel. Palmer su assistance Cf. voluntary manslaughter. erly convicted on III, (dissenting supra opin pra; Palmer (1986), Ind., 499 Hensley v. State ion). (where there is no evi testi accepting as true Morrison's Even heat, an provocation or sudden dence face, gun a in his mony that Dinkins stuck attempted volun incorrect instruction going deeming provocative a act tary manslaughter provides no basis for words, do not see beyond mere conviction). attempted murder reversal incapable of cool rendered Morrison was AFFIRMED. Instead, working he continued reflection. car, to a friend's home to on his walked GARRARD, JJ., concur. RUCKER lot, tool, parking returned to the borrow away. Only repair, and drove finished shotgun. up He testi did he take
then no intention of that he returned with
fied Dinkins, to insist that
shooting but rather This is inconsistent respect him.
Dinkins impulse of action under the
with a claim of testimony re ROBINSON, Appellant- Roy heat. Morrison's sudden G. choice, was a calculated vealed his return Defendant, and in hastily if decided even somewhat v. course in not the most sensible retrospect Indiana, Appellee-Plaintiff. STATE had If Morrison those circumstances. in shotgun from his trunk the No. 49A02-9108-CR-357.
drawn something and Dinkins stant mumbled Indiana, Appeals of Court of sudden heat away, the existence walked District. Second plausible. As much more have been would was, jury 17, 1992. to vindi Morrison wanted it March justifiable shooting of Dinkins as a cate his 11, 1992. May Denied Transfer self-defense, mitigate it rather than act of heat. Underwood act of sudden as an Cf. State, (voluntary manslaughter supra warranted, strong despite instruction heat, because defendant's for sudden
facts shooting that the was defense was "entire accidental....").
entirely *2 Indianapolis Police Offi
on June (Mills) dispatched to a was Mills cer Ronald Indianapo Safeway parking lot Preston complaints that an of citizen lis because his selling merchandise from individual was Mills parked in the lot. was car which group people who had the approached Robinson, noticed in the lot. He gathered car, and asked what who was seated immediately doing. be Robinson he was Mills of harass belligerent, accused came him, "get the fuck told him to Robinson at 24. Mills told away." Record again car and Robinson get out of the to "get away." the fuck Robin Mills to told shout, screaming that the to son continued "bullshit," and that Mills investigation was 2 Record at "lying mother-fucker." was a three or four told Robinson 24. Mills then he re quiet, but when times to be more fused, him. Mills arrested charged criminal tres- was with Robinson After a conduct. pass and trial, acquitted of was bench Robinson and convicted of disorder- trespass criminal Jr., ly Thoms, Indianapolis, conduct. for F. William appellant-defendant. Gen., Pearson, Michael Atty. Linley E. ISSUE Gen., Worden, India- Deputy Atty. Gene speech for which Rob Whether appellee-plaintiff.
napolis, for by protected is convicted inson was of the United States Con first amendment BUCHANAN, Judge. stitution? CASE SUMMARY DECISION (Rob Roy Robinson Appellant-defendant inson) for appeals his conviction CONTENTIONS-Robinson PARTIES' misdemeanor,1 claiming conduct, B a class directed at Mills that his contends sup insufficient the evidence was protection. amendment enjoyed first port his conviction. conviction responds that the The State We affirm. supported is suf- for the words Robin- evidence because
ficient
FACTS
obscenities
at Mills were
son screamed
are not constitu-
which
words"
judg-
favorable to
The facts most
p.m.
tionally protected.
7:40
approximately
ment reveal that
other than that
(1988).
quest
we consider evidence
Ind.Code 35-45-1-3
conviction,
supports
which we will
thy
Exo-
thy
mother...."
father and
2. "Honour
Ind.,
do,
Holder v. State
see
dus 20:12.
entirely
posi-
on his
based
1253-is
activity
he was convicted
for which
tion that the
the evi-
as whether
Robinson states the issue
support
conviction.
dence is sufficient
However,
Therefore,
rephrase
issue.
law.
argument-beyond
his re-
also Mesarosh v. State
supplied); see
for
conviction
CONCLUSION-Robinson's
426. Addition
(1984), App.,
Ind.
by suffi-
supported
disorderly conduct was
"
abuse
'personal epithets and verbal
ally,
cient evidence.
vulgarities
(which
may not contain
may or
was
Robinson
under which
The statute
obscenities)
enjoy constitutional
do not
*3
as follows:
provides
charged
in such activi
engaging
and
protection,
...
knowingly,
recklessly,
person who
"A
consti
cireumstances
may under certain
ty
intentionally:
or
Brittain,
su
disorderly conduct'"
tute
and contin-
noise
(2)
unreasonable
makes
(1975),
quoting
v. State
at 761
Stults
pra.
stop
being
asked
do so after
ues to
669,
461, 469,
674.
336 N.E.2d
Ind.App.
166
conduct,
B
a Class
commits
that on two
us reflects
The record before
misdemeanor."
Mills "to
screamed at
Robinson
occasions
85-45-1-8.
IC
at 24. Robin-
away."
fuck
Record
get the
this court reviews
When
investigation
Mills that the
also told
son
speech, we
based
convictions
him call-
he shouted at
and
was "bullshit"
light
of
charged events
at the
must look
Record
"lying
Mills a
mother-fucker."
ing
afforded
protections
constitutional
24.
at
(1991), Ind.App.,
Brown v. State
speech.
verbiage
repugnant
used
of such
The use
(1990),
v. State
N.E.2d
Brittain
576
605
technically
may not
these conditions
under
4
757;
v. State
N.E.2d
Gilles
Ind.App., 565
language because
"obscene"
constitute
denied,
220,
N.E.2d
cert.
(1988), Ind.App., 531
significant
not "in some
were
these words
337,
939,
107
110 S.Ct.
93 U.S.
4
(1971),
erotic,"
v.
way,
Cohen
California
Brittain,
deter
this court
In
325.
L.Ed.2d
1780, 1785,
20,
15,
29
91 S.Ct.
403 U.S.
fall
generally
spoken words
mined that
284,
in a manner
"with sex
or dealt
L.Ed.2d
guarantee of
Amendment's
First
within
Roth v.
prurient
interest."
appealing
however,
cate
speech;
several
of
freedom
487,
476,
(1957),
77 S.Ct.
354 U.S.
this consti
outside of
of
fall
gories
1310,
1304,
1498.
also Cava
1 L.Ed.2d
See
protection:
tutional
(1983), Ind.App., 455 N.E.2d
v. State
zos
obscene,
include the lewd
"'These
Rather,
consider
618.
libelous, and the insult-
profane,
unde
"fighting words"
to constitute
words
by
words-those
'fighting'
or
protection. See
serving
constitutional
of
injury or
very utterance
their
inflict
(conviction for
Brittain,
supra,
breach
incite an immediate
tend to
of
po
called
when defendant
conduct affirmed
well observed
It has been
peace.
a "son-ofa
"fuckers" and
officers
lice
no essential
are
such utterances
that
Stults,
supra
Mesorosk,
bitch");
supra,
ideas,
are
exposition
any
part
of
of
word). They
fighting
("mother-fucker" is a
step to
as a
slight social value
such
of
despite the
depths
degradation
skirt
may be de-
any
that
that
truth
benefit
in common
or
may
tolerated
they
be
fact
outweighed
clearly
them is
rived from
society.
our
certain element
usage
order and mo-
interest
by the social
our
element of
Unfortunately,
is an
there
personal
epithets or
'Resort to
rality.
in criminal
engages
society
regularly
any proper sense commu-
not in
abuse is
to do
for others
conduct, hardly an excuse
opinion safe-
or
of information
nication
tolerance
justify
This does
likewise.
pun-
and its
guarded by the
any
or
police officer
by a
depravity
such
no
would raise
as a criminal act
ishment
citizen.
other
under that instrument.''"
modern
commentary of our
a sad
"It is
760-61,
Chaplinsky v.
quoting
at
Brittain
must
officers
society
law enforcement
568, 571,
(1942), 315 U.S.
Hampshire
New
as those used
such
subjected to insults
be
(cita
768-69,
766,
HOFFMAN, J., concurs.
815,
696,
693;
81 S.Ct.
5 L.Ed.2d
State v.
(1985),
382,
Groves
219 Neb.
363 N.W.2d
SHIELDS, J.,
opinion.
dissents with
Indeed,
time,
507.
point
at some earlier
SHIELDS, Judge, dissenting.
the terms undoubtedly
meaning
had a
I dissent.
seope
"fight
which would fall within the
necessary
speech
It
is not
the
ing
However,
present
words."
common
category
the
fall within
of consti
mean,
usage,
despicable,
"a
or
per
vicious
speech
tutionally unprotected
to constitute
son,"
"anything
and
considered to be des
"unreasonable noise" under the
picable, frustrating," Random House Web
conduct statute.1 The
College Dictionary
(1991),
ster's
884
the
imposes
statute
reasonable
limitations
words do not fall
category.
within that
So
time, place,
expression
or manner of
of defined, the terms are no
injurious
more
speech activity
application
if its
is not
"asshole,"
than the term
defined as "a
speech.
based on
content of
How
mean,
stupid
contemptible person,"
or
id.
ever,
case,
in this
Robinson's conviction for
82,
at
and which was found not to consti
disorderly conduct was based on the con
"fighting
tute a
word" in a similar factual
ie.,
speech,
"shouting
tent of his
obsceni
setting.
Covazos,
(call
See
cannot be public of the
speech directed to a member large:
at signif- protects Amendment First
[Thhe
icant amount of criticism and chal- verbal police officers.
lenge directed provocative and chal-
"Speech is often pro-
lenging is nevertheless it] [But against censorship punishment, or
tected likely produce a clear
unless shown present danger of a serious substan- public that rises far above incon-
tive evil
venience, annoyance, unrest."
Hill,
at 2509
(citations omitted). Furthermore, the con *5 protection speech of free does
stitutional speech merely
not vanish because is offensive. (1989), 491
Te xas v. Johnson 2544-45,
397, 414, S.Ct.
L.Ed.2d 342.
Because Robinson's is insuffi- evidence
cient to sustain his conviction.
Martin and Elmer HENRICHS Jacobsen, Appellants-
L.
Defendants, PIVARNIK, Appellee-Plaintiff,
Alfred J. Council, Leadership
Lake-Porter
Inc., Defendant.
No. 64A03-9002-CV-56.1 Indiana, Appeals
Court of
First District.
March Judge. January into this office on of the Chief 1. This case was transferred order