Demetrius Holloway was arrested for operating a motor vehicle while intoxicated and while in jail was very belligerent. He was uncooperative and said to the officer who arrested him, “I hope you die. I hope you die tonight.” Later during questioning, he told the officer “I will f---you up.”
He was found guilty of Level 6 felony intimidation after a bench trial and pleaded guilty to Class A misdemeanor operating while intoxicated. The Court of Appeals affirmed his intimidation conviction in a 2-1 decision, Holloway v. State, 71A04-1508-CR-1292, with Judge L. Mark Bailey dissenting, noting there was “no indication as to whether a person in Officer (Joseph) Stitsworth’s position could reasonably believe Holloway’s statement under the circumstances was a true threat.”
The Indiana Supreme Court heard arguments Thursday morning on whether to grant transfer in this case on the question of whether Holloway’s statement could be considered a true threat because there is no evidence that Stitsworth felt threatened by it.
Holloway’s attorney, Thomas Keller, argued evidence was not sufficient that Holloway’s statement could be considered a threat because it failed the second prong of the two-prong test in Daniel Brewington v. State of Indiana, 15S01-1405-CR-309. In that case the Supreme Court ruled that in order to be considered a true threat, the threat must contain evidence of intent to threaten, and would a cause a reasonable person similarly situated to fear for their safety or the safety of someone close to them.
Justices were concerned that by ruling in favor of Holloway, they would create a different standard for police officers and punish them for being brave, but Keller said that is not what the law is about.
“I’m not asking the justices to carve out a special exception,” Keller said. “The question is, would any reasonable person similarly situated find this as a threat?”
He said inferences can’t be drawn from the officer’s testimony that “he meant to do me harm” without first checking with the officer to know he felt threatened.
Deputy Attorney General Stephen Creason argued Brewington should not apply because the decision only applies to free speech, which Holloway’s statement was not. He argued that the totality of the evidence – that Holloway was belligerent, drunk and unpredictable; that he told Stitsworth “I hope you die,” and the fact that after he gave his threat as he stood up and moved toward the officer – was more than enough to justify his intimidation charge, regardless of how Stitsworth actually felt.
Creason also argued that the fact that Holloway was handcuffed while he made the threat should not matter because people in handcuffs and in custody can still cause harm.