Whittington v. State
669 N.E.2d 1363
Ind.
1996
Check Treatment

*1 eighteen, he had committed at least "twenty-three

probably four" other WHITTINGTON, Appellant Eric rapes,8 jury rejected and the the verdict of (Defendant Below), life, guilty mentally Throughout ill. his displayed contempt people Schiro for both brazenly and the law. He admitted in a Indiana, Appellee STATE of presentencing manipulated interview that he (Plaintiff Below). justice system the criminal in order to avoid No. 49S02-9608-CR-534. prior incarceration for his convictions. This judge's fact suspicion corroborated the trial Supreme Court of Indiana. rocking presence of Schiro's behavior in the jury provided plausible explana 7, Aug. jury tion for a recommendation that did not comport with the facts. quoted

In I Supreme Schiro we the U.S. Florida, Court's statement Proffitt

U.S. 96 S.Ct. 49 L.Ed.2d 913

(1976), regarding judicial sentencing in death

penalty Repeating emphasizes cases. it here imposition

the correctness of the and affir-

mance of Schiro's death sentence: appear judicial sentencing

[It would lead, anything, greater

should if to even

consistency imposition at the trial capital punishment,

court level of since a judge experienced

trial is more at sentenc-

ing jury, than a and therefore is better impose

able to sentences similar to those

imposed in analogous cases.

428 U.S. at 96 S.Ct. at 2966. The trial

court discharged grave responsibility this

when it sentenced Schiro. This Court ful- gave

filled its constitutional mandate thorough,

Schiro individualized review jury's

his sentence. recommendation given adequate weight

has been and the

post-conviction denying court was correct ground. Sehiro relief on this

III. Conclusion appeal, Schiro's direct we found the

death in light sentence be reasonable

the offender and the crime. liti- Schiro has

gated away more than half the sentence im-

posed my colleagues today. He will now something

be released over fourteen

years. I would instead affirm the sentence

originally imposed.

8. R. at 1728-30.

1365 *3 apartment. him into

side escorted Finnell noticed that furniture was strewn room, living about and he found Whit- tington's holding sister in her bedroom her told abdomen. After she Finnell that Whit- her, tington had "hit" the officer summoned an ambulance. Whittington,

Finnell then interviewed boyfriend, living another witness arrived, paramedics room. When Finnell ac- companied them into the bedroom. No soon- *4 living er had he left the room than a heated argument erupted Whittington between boyfriend. Finnell returned and sent the boyfriend sepa- to the bedroom in order to rate the two. Jacobs, Indianapolis, Appel- Steven R. for Finnell, According Whittington contin- lant. (R. 65) boisterous," ued to be "loud and at Carter, Attorney Pamela General (R. repeatedly declaring, "This is all bullsh-" Indiana, Frazee, Deputy Julie Zandstra At- 66). Whittington at When Finnell asked General, torney Indianapolis, Appellee. for relax, Whittington responded, sit and "F--- again this sh-." Finnell onee asked Whit- SHEPARD, Chief Justice. tington quiet to be and calm down because Appellant Whittington prosecut- Eric was agitating boyfriend, the outbursts were battery disorderly arising ed for (R. who could hear them from the bedroom. a Although 66.) out of domestic altercation. ac- Whittington persisted at in When "a quitted battery, he was convicted of disor- manner," very angry loud and Finnell arrest- conduct, derly speaking based on his loud (R. 67.) disorderly himed for conduct. at during police investigation inci- charged Whittington The State with the appeals dent. He that conviction. af-We battery disorderly of his sister and with con- firm. duct, characterized in the information as I. Facts "cursing, yelling, acting belligerent in a (R. 7.) manner." at The court convicted

The at trial evidence tended to show that conduct, Whittington only disorderly based Whittington drinking had been when he Whittington's speaking during on loud Fin- came home from work on March investigation. nell's sister, began argue soon He with his who him, boyfriend, lived with and her Whittington appealed, arguing that his in apartment. also have lived At some speech constitutionally protected. A di point, Whittington punched preg- either his reversed, Appeals judge vided Court each nant in sister the abdomen or struck her State, writing opinion. Whittington boyfriend struggled while she and her (Ind.Ct.App.1994). grant N.E.2d 526 restrain him. Citing transfer. some of the same formula Apparently, apartment someone in the tions raised Price 622 N.E.2d 954 police. Anthony called the When Officer (Ind.1998), Whittington contends that his re constitutionallyprotected.1 met him out- marks were arrived, boyfriend Finnell (Br. styles challenge 16-18.) categori 1. His brief under a an incitement at lawlessness. approach, cal see Hess v. 260 Ind. Whittington's expressly does not brief raise a grounds, rev'd on other 414 U.S. 105, claim, distinct federal held that (1973), 94 S.Ct. 38 L.Ed.2d that we punishment of excessive under volume the disor arguments Thus, overruled in Price. his focused derly conduct statute did not violate the First demonstrating that his remarks were not Amendment. 622 N.E.2d at 965-67. words, nuisance, fighting obscenity, public a Disorderly noise, II. Statute producing able not to effects with the Conduct Thus, application noise. of the statute by considering applica- begin We shall can extend to situations in addition to those disorderly in cir- tion of the conduct statute constituting public nuisance. cumstances like those this case. The quite context of conduct is dif- We held Price that the criminaliza ferent than that we encountered Price. tion of "unreasonable noise" was "aimed at There, speaking the defendant's loud oc- preventing the harm which flows from the alley, curred in an and we observed volume" of noise. 622 N.E.2d at 966. The issue, where was not at prove produced State must that a defendant the statute reached noise that amounted to decibels of sound were too loud for the public nuisance. 622 N.E.2d at 966. cireumstances. Whether the state thinks the contrast, speaking in the loud this case oc- conveys good message, sound a bad mes private apartment, curred inside a and there all, sage, message impos or no the statute beyond is no evidence that it was detectable prohibits it es the same standard: context- apartment. the walls of the inappropriate volume. Indiana's conduct statute was adapted provision from similar the Mod- Loud could noise be found unreason *5 proposed el Penal Code. The version read Whittington's able a case like on a number as follows: grounds. safety It could threaten the if, person guilty disorderly A is injured parties aggravating their trauma purpose public with to cause inconve- by distracting personnel or the medical tend alarm, nience, annoyance recklessly or or ing agitate them. Loud outbursts could wit creating thereof, ... a risk he makes un- disrupt police investigations. nesses and It reasonable noise.... "Public" means af- investigations could make coordination of fecting likely persons or to affect in a Finally, medical treatment more difficult. place public to which the or a substantial quite annoying loud can to noise be others group has access.... present at the scene. 250.2(1)(b) (1980) (em- § Model Penal Code added). phasis The drafters of the Model III. Constitutional Claims they provi- Code indicated that intended this penalize "public to nuisance." emt. sion Id. Reviewing constitutionality appli- explains 2. That intent the inclusion of ref- disorderly cation of the conduct statute re- inconvenience, annoyance, public erences to First, quires two-step inquiry. reviewing a a or alarm. court must determine whether state action 250.2, Although patterned on expressive has restricted a claimant's activi- disorderly departs Indiana's conduct statute Second, has, ty. if it the court decide language from the Model Code activity whether the restricted constituted an important respects. provides statute as Our right speak. to follows: recklessly, person knowingly, A or Expressive Activity A. on Restrictions intentionally ... noise makes unreasonable being and continues to do so after to asked challenge violating To state action as conduct, stop ... a commits right speak, to a claimant must first B misdemeanor. Class has, in demonstrate that the state action case, concrete circumstances of the restricted 85-45-1-8(2) (West Supp. Ann. Ind.Code engage expres opportunity his or her to 1996). Significantly, legislature our deleted activity. inquiry governed by sive This is any requirement person to a that a reference clause, Rights' Bill our free purposely recklessly annoying act or toward "[njo provides passed be Instead, which law shall public. the mental element of (intentional, restricting right or . to knowing, Indiana's statute reckless) subject making print, freely, any whatever." Ind. applies to the of unreason- on 1, § provides right,

Const. art. that "for of that the abuse every person responsible." shall be Ind. contemplates That clause broad 1, § responsibility Const. art. 9. The clause activity. First, expressive notion of it ex expressly recognizes prerogative the state's "any subject whatever," tends to and thus it punish expressive activity to that constitutes imagine topic difficult to is it does not right speak. an "abuse" of the to Second, right speak cover.3 because the provides expressive activity clause also In we defined "abuse" in "freely" performed, be the clause reach light political philosophy that informs every expression. es conceivable mode of the Indiana Constitution. 622 N.E.2d at speaking, writing, print We conclude that Baude, ing, freely, any subject whatever, includes, see Patrick Has The Indiana 958-59 Epic? least, Constitution Found Its 69 Ind.L.J. projection any words in (1994). manner. philosophy, Under that individu possess als "inalienable" freedom to do as course, trigger right Of will, they they collectively delegated have speak clause is the notion of restriction. government quantum of that freedom construing important concept, we re everyone's "peace, safety, order advance song jur sist the siren of First Amendment 1; well-being." Ind. art. Const. see isprudence.4 The clause ar Lawrance, In re 39 n. 3 interest, liberty ticulates a equality not an (Ind.1991). purpose power, The of state protects It against interest. restriction of then, atmosphere is to foster an in which expressive activity, not discrimination be fully enjoy can individuals that measure of viewpoint. cause of content or they delegated freedom govern have not speak clause focuses on the im restrictive ment. pact of state action on an individual's ivity.5 minimum,

act At a the clause is *6 Applying philosophy implicated this in imposes when the state a direct significant Price, person's oppor burden on a we construed expres "abuse" as tunity mind, speak his or her in whatever activity "injures sive that rights the retained speaker manner the appropri deems most of individuals or undermines the State's ef ate. enjoyment." forts to facilitate their 622 959; Marshall, N.E.2d at see also State v. B. Right Abuse the 289, (Tenn.1993) of 859 S.W.2d 293-94 (quoting * right qualified, Blackstone,

The 4 is of William Commentaries 151- course, by clause, 52; § responsibility I's defining which "abuse" under Tennessee's full, provides, 857, (1994) § 2. In (noting 9 "analyt- L.J. 857 that Price's dramatically ical ... framework differs that from passed, restraining No law shall be the free which informs the First Amendment doctrine of interchange thought opinion, of or restrict- * Court."). Supreme the United States ing print, freely, the any subject whatever: but for the abuse of that requires judicial 5. The First Amendment also right, every person responsible. shall be scrutiny governmental 1, of some actions that have § Ind. Const. art. 9. burdening expression. Compare the effect of Consequently, recognize gerryman 3. we do not a United States v. O'Brien, 367, 391 U.S. 88 S.Ct. 1673, (1968) dering set the of all activities 20 L.Ed.2d 672 with Arcara v. into Cloud Books, Inc., 697, 3172, consisting constitutionally those of content that is 478 U.S. 106 S.Ct. 92 proscribable (1986); Tribe, consisting and those of content that L.Ed.2d 568 Laurence H. Ameri (2d 1988); § can Constitutional Law 12-23 not, is see R.A.V. v. ed. Paul, St. 505 U.S. 377, City 383, 2538, 2543, 112 S.Ct 120 L.Ed.2d 305 see also Conkle, at 858 & n. 12. In this supra, (1992) defamation, {calling obscenity, "fight respect, approach § our 9 is somewhat analo ing "constitutionally proscribable words" con gous protection religious prac to the afforded Amendment). phrase tent" under First The Religious tices under Freedom Restoration "constitutionally proscribable content" is incom 1993, (1994) ("Gov Act of 42 U.S.C. 2000bb-1 prehensible within the discourse of 9. substantially person's ernment shall not burden a religion exercise of even if the burden results 4. See Conkle, Daniel O. The Indiana a [neutral rule}," from unless it a demonstrates Supreme Doctrine, Emerging Speech interest.). compelling Court's Free 69 Ind.

1369 the burden he or she retains leg implicated, is that any expression as provision parallel reasonably not could proving that State reasonably find "destructive could islature expression was restricted words, that conclude ex society"). In other the ends "abuse." an if, not activity constitutes pressive 9, punishable within withstanding § it is Expression Political C. power power, as that police strictures liberty personal generally delineated is try to meet way claimant can One 1, § clause, 1.6 art. Ind. Const. her ex that his or is to show this burden If a claimant activity political. pressive Price, that re made clear In attempt, the State in that succeeds that ex state's determination viewing the material has not that its action demonstrate "abuse," "typically we will pression is opportunity ly the claimant's burdened ration conclusion] be only that require [the expression. See political engage that the It is true N.E.2d at 959. al." 622 at 963-64. 622 N.E.2d power is police an exercise propriety Gerhardt, 145 judicial question. State recogni reflects our approach This (1896). 451, Neverthe 469 44 N.E. Ind. beyond is often political expression tion that less, defer accord "considerable we must police power. seope delegated legislature, judgment to the ence" history of constitution Price we reviewed consti to what the decision as as inasmuch and concluded development in Indiana al first and foremost public purpose is tutes a expres evolving protection for implicit Day, 644 one. Collins legislative Cf. Rights is the Bill of the Indiana sion under (Ind.1994). generally con expression is political idea that police power. goals of the with the to the sistent ourselves have limited Indeed, political most at 961-63. chal determining whether role of narrow everyone's in ultimately serves rela has some reasonable lenged action state well-being. See safety, and terests the state's tendency promote to or tion pure Consequently, we held Thus, id. at if a claimant legitimate interests. said to consti expression cannot be speak clause demonstrates general pow- boundary of that and the outer the overall struc- with result is consistent 6. This requirement exer- that it be er is marked Rights. Indiana Constitu- of our Bill of ture well-being," absolute, safety, and "peace, advance cised to lim- grant government an tion does not *7 of a "source" 1. Far from Const. art. Ind. discrete power and then withdraw state itless responsibility clause authority, legislative the specific individual by excision. The portions of it presence the despite of simply the ensures merely help Rights to guarantees in our Bill of clause, delegat- its state retains the particular of the contours highlight the some of safety, peace, and authority promote the delegated. ed generally been power has as it state expression by punishing well-being of Hoosiers liberty in the particular guarantees ends. thought those to undermine be that could manifes- Rights concrete are but Bill of Indiana limiting principle that of the abstract tations 334, 326, 123 Hanley 234 Ind. E.g., the v. may only exercised to advance 7. power be state 452, (1954). They well-being 455 safety, of Hoosiers. N.E.2d and particularity some greater merely describe with of which the restriction personal freedoms Financial Institutions Eg., Department view, not, tend to advance in the framers' 629, would 293, 302, Holt, 634 N.E.2d 108 231 Ind. goals. permissible state those (1952). Price, Dickson criticized Dissenting Justice of the adjective "pure," instead of the responsi- 9. Our use failing recognize the majority for oversight; grammatical "purely," is no independent adverb separate and bility as "a clause "expression," not modify "pure" we intend authority and to enact governmental source of Price, ap- "'political." we indicated As speech." penal for abusive sanctions enforce were the might different be proach under the Indiana But while at 968-69. 622 N.E.2d is, pure expression-that activity challenger's not legislative grant unlimited does not Constitution non-expressive conduct. it mixed with were of ex- establish does it system neither power, not said- we have 14. What at 963 n. probe powers. We never pressly enumerated of the that the content decide here-is govern- and do not for a "source constitution terms "purely political," expression be generally power is authority," because Radford mental (Ind.Ct.App.1994). 640N.E.2d art. legislature, Ind. Const. See vested sion, context, police power tute un ambiguous, an "abuse" within the viewed in is a re viewing court should find that the claimant upon parties less it "inflicts determinable gravity analogous required harm to that has not political of a established that it was under law." Id. at tort 964.10 constitutionality should evaluate the state-imposed expression restriction of the opinion Our Price reveals that rationality under standard review. See political expression the common feature of is Price, 622 N.E.2d at 959-60. example, reference to state action. For we activity expressive referred to If, is "occa however, a claimant succeeds demon- government sioned the conduct of actors strating expression politi- that his or her regards public a matter of concern." Id. cal, expression did assume Expressive activity political, at 961. is for peace, safety, not undermine well-being. clause, purposes responsibility if challenged action, To sustain the state point government

its is to comment on ac State must demonstrate that its action did tion, applauding policy whether an old or materially not burden the claimant's one, proposing a opposing new a candidate expression. opinion in suggests Our for criticizing office or the conduct of an impose state action does not a material acting judi official under color of law.11 The expression burden on if "magni- either the quest express clearly cial is for some impairment" slight, tude is 622 N.E.2d implied governmental reference to action. expression at 960 n. or the threatens "particularized inflict analogous harm" to tor- contrast, -In where individual's ex injury readily tious private identifiable pression private focuses on the conduct of a interests, id. at 964. party-including speaker himself or her political. self-it is not the State D. Conviction protesting conceded that Colleen Price was police treatment of another citizen before an Whittington has established that the state quiet. officer warned her to be expressive activity. restricted his He was at warning, expression 956-57. After the her making convicted of "unreasonable noise" conduct, did shift to a defense of her own id. solely based speaking on his loud during but a conviction for con investigation Finnell's reported domes- requires proof duct of "unreasonable noise" dispute. tic both warning. before and after an official 35-45-1-3(2) (West See Ind.Code Ann. Whittington has failed to demon Supp.1996). It was the State's reliance on strate, however, that his activity pre-warning political expression Price's did not constitute an prove an essential element of the offense that speak. difficulty concluding We have little was fatal to the conviction. that his political. was not Whit- A court engage spec tington need not testified that his remarks were not *8 ulation speaker might (R. 82.) as to what a have directed toward Officer Finnell. at judge meant. will expres the nature of Whittington police was irritated that the by objective standard, sion an investigating and the bur were complaint the domestic (R. proof 84, 66), den of is on the claimant to appears demon but he to have direct strate that expression his or her would have ed his boy frustration toward his sister's political. friend, been expres understood as If the who have been the one who 10. We have no by occasion here to consider wheth Appeals The flat assertion the Court of that injury government's ability carry er an out purely political expression "does not include legitimate proprietary, some or all of its adminis speech police directed aat officer who is at- trative, policymaking or functions constitutes tempting perform his duties or enforce a stat- "analogous" injury. harm to tortious See Con ute," 640 N.E.2d at 94, is inconsistent Radford, kle, at 863. supra, repeated emphasis political with the in Price that expression government focuses on the conduct of Conkle, supra, (noting political 11. See at 861 that agents. officials and expression speech could be defined as that "ex- action"). plicitly governmental addresses

1371 J., SULLIVAN, in result with concurs protested He also police. the summoned opinion. that the anything and separate done had not he that 66.) (R. at lying. were witnesses other J., DICKSON, and concurs dissents | pri the conduct involve statements These opinion. separate with result In the individuals, action. not state vate support not does Justice, concurring evidence in result. analysis, SULLIVAN, the final Whittington's that assertion an all, Dick some, not of Justice I share political. was I, Article analysis of the with concerns son's contained Indiana Constitution rationality re Thus, apply we (Ind.1993). In 954 622 N.E.2d Price could the state determining whether view implication troubling Price's I find particular, Whittington's that reasonably concluded have speech is for protection while volume, of its activity, because I, types of other in Article "enshrine[d]" was, or speak right to an "abuse" artistic, scientific, literary, speech-religious, safety, and words, threat in other look else apparently example-must for that Whit- easily conclude well-being. We Rights pro for Bill of in the Indiana where "every conceivable negated not tington has with square seem does not This tection. his case. Col action for the state basis" I, "the covers Article fact that the lins, at 80. freely, on sub print, ject whatever." that abstractly observed In Price objective our is an noise "abating excessive time, both the agree with I same At the pursue." may legitimately legislature that Mr. Whit- Dickson majority and Justice case, isit of this the facts 960. On I, § N.E.2d at not were Article rights under tington's out- the loud reasonably conceivable for prosecution by his implicated of this circumstances result, in the concrete leaving bursts and so concur here persons other agitated have case could afforded protections development of the the disruptions additional sparked apartment, to fu- Constitution the Indiana speech under with his interfered investigation, or Finnell's ture cases. and the crew manage the medical ability to noisy tirade could DICKSON, Justice, dissenting and concur- alleged crime seene. safety of the have threatened ring in result. by dis- trauma her by aggravating sister its decision majority bases Because tending her personnel tracting the medical Price v. case of controversial upon the speech Finally, the volume injury. (Ind.1993), This I dissent. all annoying to highly undoubtedly made it and the opinion, in a 3-2 Price decided Court have be- could therefore The state present. by 2-1 vote rehearing petition denial constituted Whittington's outbursts lieved abstain of the two views not disclose did such, and, as since joined this Court have ing Justices police power. purview of within fell I con original opinion the issuance incorrect is an Price to believe tinue for Whittington's conviction holdWe I, Article Section interpretation harmfal not contravene did disorderly conduct Constitution. the Indiana 9 of Section guaranteed speak, as right to Rights. Bill of Indiana decision, majority perpetu- today's that I contend aspects of ates various IV. Conclusion *9 unnecessar- mistaken. particularly are court. the trial judgment of affirm upon superimposes and ily propounds, theory its of Section language clear concept values"-a constitutional JJ., "core SELBY, concur. DeBRULER DeBruler, a member retiring Justice replace today's Furthermore, whether not know we do 1. majority. of Justice of the Price the views opinion reflects majority today to Boehm, in later sworn will be by affording preferential politi- treatment to because Section 9 every insists that person cal speech, but not other express defies the responsible "shall be for the abuse of that declaration in Section 9 that the to right," Whittington may be criminally held write, speak, print "any subject extends to accountable. I rights would find the of free I, whatever." Ind. Const. art. 9. Like- expression to have been abused when exer wise, I believe that majority the Price contrary cised prescribing laws reasonable predicate mistaken to analysis upon its time, place, and manner limitations. redefinition of simple word "abuse" as disorderly Indiana's conduct fairly statute es thing "the use of a injurious in a manner parameters. tablishes such arrangement the order or from which it de- Price, rives its function." 622 N.E.2d at 958.

Defendant Whittington was convicted of

disorderly conduct. appeal His contends

that his words and "protected actions were speech." The unwieldy nature of Price is

evident from the fact that the Ap Court of peals, in an attempt Price, earnest apply WILLIAMS, Appellant Edward Earl reversed this conviction majority, (Defendant Below), applying also today affirms. See Whittington State, (Ind.Ct. v. 634 N.E.2d 526 v. App.1994). questionable utility of Price Indiana, Appellee STATE of is also by demonstrated the difficulties the (Plaintiff Below). Appeals Court of has encountered in apply No. ing its 45S00-9210-DP-770. formulation in other decisions. Hooks v. 660 N.E.2d 1076 (Ind.Ct.App. Supreme Court of Indiana. 1996), a divided court affirmed the conviction a strong over dissent Judge from Robertson. Aug. 1996. The Price philosophy led Ap the Court of Rehearing Denied Dec. 1996. peals 627 N.E.2d 1331 Radford (Ind.Ct.App.1994), to overturn a conviction then, initially; rehearing on and after a

change personnel, the court reversed itself and affirmed the conviction. See Radford

State, 640 N.E.2d 90 (Ind.Ct.App.1994). The

Price framework does not facilitate the de

velopment consistent, principled decisions.

Without resorting to the Price methodolo

gy, I would affirm Whittington's conviction in present case because it does not violate plain ordinary meaning I, of Article

Section 9. The statute,

which is against directed the manner of ex

pression content, and not its does not re

strain or restrict "the print, freely, any subject whatever."

Regardless presence or absence of

political content, Whittington's words are en

titled to speech free protection.2 However, I would find rights the free recog actually necessary are safeguard prevail nized against Section 9 to state action safety, well-being general public. See upon ordinary based police power and would Christole, (Ind. Clem v. permit rights only restriction of upon 1991). police reasonable exercise powers of those