*1 of Tennessee STATE
Teddy Ray MITCHELL. Tennessee, Supreme Court at Knoxville. Jan. 2011 Session. 31, 2011. March *3 Jr.,
Robert E. Cooper, Attorney General Reporter; Harmon, Rachel West Asst. General; Attorney Bell, Berkeley C. Dis- General; Attorney trict Victor Vaughn, General, Asst. District Attorney for the appellant, State of Tennessee. Berg, Darren V. James Wright, Charles Cole, Knoxville, and Robert Deno Tennes- see, for the appellee, Teddy Ray Mitchell.
OPINION WADE, J„
GARY R. delivered Court, opinion of the in which CORNELIA CLARK, C.J., HOLDER, A. M. JANICE KOCH, JR., JJ„ joined. WILLIAM C. LEE, J., SHARON G. separate filed a opinion concurring part and dissenting part. The defendant was convicted disor- derly conduct thirty days and sentenced to jail, probation. be served on On direct appeal, the Ap- Court Criminal reversed, peals holding that the evidence granted insufficient. This Court permission appeal State in order to admissibility racially consider the of a de- term, rogatory sufficiency review the evidence, and to determine whether the conviction violated the constitutional right speech. disput- to free Because the admitted, area for into the demonstration carried testimony properly ed they might either contain a hid- fear that a convic- support sufficient to evidence was A weapon. be used as a weapon den conduct, and there was tion for American flagpole displaying the single right speech, to free no violation of the stand, placed speaker near the flag was reversed. Appeals is Court Criminal in attend- separated which was from those and sentence is judgment The of conviction several officers. ance a fence and reinstated. of the events that led course Background (the Ray Mitchell “Defen- Teddy arrest of *4 dant”) for conduct was reflected on rally p.m. A was scheduled at 2:00 only by testimony at the Defendant’s 24, 2006, County at the Hamblen June trial, by but also two November by in Morristown a grounds Courthouse digital recordings made exhibits video to aware- group attempting raise trial, placed a one taken with camera illegal immigration. the effects of ness of (“THP by Highway the Tennessee Patrol promoted the event with a Organizers video”) of the courthouse upper on an floor general that extended a invita- pamphlet seconds) minute, forty-four (lasting one your fami- rally, “[b]ring tion to attend the angle taken from a different and another flag ly, proudly, wave the American minute, thirty- spectator (lasting a one that display signage educates.” seconds). eight recordings Both video Weisgarber, training Lieutenant a Chris were as exhibits and were used submitted Depart- officer with the Morristown Police in cross-examination of officers. ment, in of placed charge planning only a depicts portion The THP video security rally. and coordination of event, with the Defendant beginning he received information that Because had walking rally parking toward the after between three and five hundred members vehicle, ob- filming partially and the is organization, of an Hispanic having views orange plastic a fenc- hedge scured immigration on the issue were con- can be heard ing. Although the Defendant event, organizers flict with the also intelligible. speaking shouting, little is attend, planned Weisgarber, to Officer heard. The Defen- The officers cannot be County with the of the Hamblen assistance shortly dant after his arrival. is arrested Department Sheriffs and the Tennessee recording, which was not second video Patrol, Highway arranged security force shortly after the position, begins in a fixed ninety seventy-five between law checkpoint. arrival at Defendant’s enforcement officers in an effort to avoid portion marginally is better The audio possible confrontations between the two recording. than the THP Neither video groups. Some officers were stationed on reference recording time-stamping used to buildings, squad the roofs of a number of specific portions of the video. present, designated parking cars were ar- established, trial, Kyle, patrol officer perimeter eas were and the At Andre rally temporary Department, area was marked with with the Morristown Police that he had received instructions orange fencing. checkpoint At a estab- testified rally parking prohibit lished attendants were in advance of the police, near the front of the along screened and searched in order to assure the sidewalk at- weapons present. that no were The secu- When the Defendant courthouse. area, in that rity plan permitted flag, tempted park the American but his vehicle African-American, in- permit Kyle, did not Officer flagpoles size be formed him that he park tape would need to were used in cross-examination. Offi- another location. In response, the Defen- Kyle cer acknowledged that in addition to said, nigger dant “There’s no to tell going the flagpole flag, the Defendant car- me I can park.” where and can’t Officer drink, ried a poster, soft and a lawn chair Kyle then sought assistance from Matt to the entrance. Stuart, also of the Morristown Police De- Stuart, Officer a fifteen-year veteran partment. After Officer Stuart in- also with the Department, testified that he was structed the Defendant that he could not first alerted who, to the Defendant while location, park his vehicle in that the Defen- still inside his car and some distance away, angrily dant reacted “sped off.” Ac- began to “scream” and “holler.” In an cording to Kyle, Officer the Defendant effort to Kyle, assist Officer Officer Stuart parked his vehicle nearby another pro- explained to the Defendant that the area area, hibited but at point officer no was restricted and that the Chief of Police move; was there to direct him to had established the parking rules for the Defendant then “made a b[ee]-line toward event. The officer recalled that the De- *5 gate.” so, the [entrance] As he did Offi- fendant, response, derogatory made re- Kyle cers and Stuart warned officers at Chief, marks about the but moved ve- his the entrance that the Defendant was hicle. He described the Defendant as “mad.” When the Defendant arrived at cursing, “real belligerent,” and “irate.” entrance, the Kyle Officer overheard an- After seeing the park Defendant in anoth- other officer inform him that he could take area, er “no parking” Officer Stuart noti- flag his into the rally area but not the Blair, fied Detective Chris who was at the flagpole, which had a pointed eagle metal entrance, front of the objec- Defendant’s at the He top. recalled that the Defen- tionable demeanor and possibility responded by dant loudly yelling, among “problems.” Stuart, According to Officer things, other “I’m an American. You the Defendant pace” continued at “a fast you mean to tell me I can’t bring a can’t— toward the visibly entrance and was upset. flag....” At point, this Kyle Officer At the checkpoint, he informed the Defen- Stuart, heard Officer who had received a dant that the rules established to ensure radio officer, communication from another safety precluded at the event the use of inform the Defendant that he was under flagpoles rally in the area. The Defendant According Kyle, arrest. to Officer the De- objected, stating he comply would not with fendant “resisted and started fighting, Acting the rule. in response to the radio officer,” pok[ing] Wallen, another Troy communication, Officer Stuart informed
with the flagpole as he did so. Officer the Defendant that he was under arrest Kyle stated that the Defendant shook the process and initiated the taking flagpole up and down as he struggled with custody. Defendant into the officers “they before fell into the cross-examination, On bushes.” Officer Stuart ac- Eventually, Officer Kyle was Lowe, knowledged able to handcuff the that Tom Defendant. Officer Hamblen Kyle County was Commissioner who cross-examined with one of had been invit- event, videotapes speak of the ed to at the During confrontation. had been allowed cross-examination, place to excerpts flagpole displaying of the vid- the American eotape were shown Kyle. flag speaker’s to Officer near the stand. Officer videotape stopped, was started and Stuart was excerpts cross-examined with the record reflects neither which videotape of both videotapes, but the record not does was used nor which portions of the portions video- indicate whether or all of the however, Blair, were in the cross-exami- the record. Detective
videotapes used any identify of the video- explained portion Officer Stuart could nation. words, flag- tape to the oth- in which Defendant used Defendant’s contrast tape fight to either or threaten the officers present, pole could be heard on ers he was loud.” The officer time the arrest was “talking present because before his own tone as “nor- initiated. speaking described when he the Defendant mal” informed Tony Wallen, Officer who had searched ad- he was under arrest. Officer Stuart to the grounds explosives prior he make out the
mitted that could not event, had a wand at also metal detection cursing videotape. Defendant on entrance check for the front in order to Hancock, had been He that the officers weapons. Officer David who confirmed specifically prohibit to the at the front had been assigned checkpoint directed sticks, sign sharp but was not and blunt or flagpoles, entrance courthouse Defendant, arrest, who, objects. in the noticed the When the involved first said, briskly past sign posses- when officer also had a in his Defendant he walked stick, stop supported by began angrily officer who had tried to him. Officer sion Defendant, de- rave” able to being Hancock testified that the “rant and “about not area, presence bring flag” rally at the into the Officer spite of the officers entrance, any- recalled that paying explained “wasn’t attention Wallen he only what ... thing except head on Defendant “more than once” that [and] Al- paying any pole prohibited, flag. was not attention to us.” not the Accord- *6 Wallen, the Defen- though ing Officer Hancock heard to Officer as the Defendant object he Defen- he shouting, vociferously, dant neither heard the continued to shook down, the fight pole up making curse nor saw him with the and contact with dant The arresting officers. Officer Wallen “two or three times.” that the grabbed officer stated he end Detective Blair was stationed pole prevent striking any- it from at the courthouse. gate main front of the body keep falling and to it from a metal He used detection wand to assure He Defendant ground. testified that the weapons that no came into the event site. loudly to know cursed demanded informing a man As Detective Blair was flags permitted. whether Mexican were a they and woman that could not take Wallen, previously Officer who seen had courtyard, knife into atten- pocket his videos, was also cross-examined Defendant, tion was drawn to the who was portions videotape use of of the THP that in a loud He recalled that speaking voice. identified in He were the record. he on though tapped even the Defendant identify tape specifically could not on the him that the shoulder informed when the Defendant and acknowl- cursed permitted, was not Defendant flagpole edged flag that he had control of the ignored presence. his the Defen- Before yet “poked” been the Defen- had not when however, arrest, placed dant was under placed by Officer dant was under arrest Blair Detective had turned his attention Stuart. knife. couple pocket back to the with the Lane, He did not hear the Defen- Officer Frank with the any cursing a detective portions County Department, dant. Detective Blair shown Hamblen Sheriff’s videotapes part-time as with the patrolman of both on cross-examination. worked a in his Police at the time portions videotape Department used Morristown standing cross-examination referenced in this incident. near the are not While area, rally gration. Flyers entrance of his attention had been distributed in was drawn to the Defendant because he order to promote attendance. She stated had become “loud and irate.” Officer that courthouse, when she arrived at the Lane recalled that when he saw the Defen- she found “unbelievable” the number of arrest, dant offer resistance to the he at- law personnel enforcement present. She taser, tempted apply explaining recalled that approached Defendant imposed pain “drive stun” but did not the front entrance rally of the carry- area incapacitate. He did not know whether he ing chair, a sign, a lawn and a flag at- had been in making successful contact with flagpole. tached to a explained She the Defendant. Officer Lane was also when she area, entered the marked offi- portions cross-examined the use of of a required cers her to remove the sticks videotape. The record does not indicate from the several flags small posses- her videotape which portions was used or what put car; sion and them in her she was were displayed during the cross-examina- upset that no one could enter with a flag tion. Officer Lane was unable to identify on a pole or even on tiny “a little stick.” portion videotape in which he While acknowledging that the Defendant attempted to use his taser on the Defen- appeared angry and raised his voice at the dant. officers, she any did not hear cursing and Weisgarber, Lieutenant who also served did not see the Defendant push either gener- as SWAT team commander officer or shake his flag at an officer. Ms. instructor, al departmental testified that Stephens, who wore a larger flag to the he planned security rally had for the event that draped around her shoul- participating coordinated officers in ders, never heard of the officers in- the event. He instructed the officers not form the Defendant that he was under chairs, to allow objects, flag- metal lawn arrest. In opinion, her the Defendant did poles, or anything that could be used as a not resist the arrest. weapon inside the fenced area. He was *7 Lowe, Commissioner a pharmacist by courthouse, standing near the some dis- profession, testified that he Defendant, planned had away tance from the when his rally talk at the about attention was drawn to health issues related screaming loud yelling immigration. near the front organiz- entrance —“loud over He assisted the everything else that going by was on.” Al- ers contacting county mayor the for immediately, most he sent a radio message permission to use the courthouse lawn as get “to person out of there” who [the] was the site of the demonstration. Commis- creating the scene. Weisgarber When ar- sioner Lowe described the courthouse rived at checkpoint, the the Defendant was off,” “completely lawn as cordoned without being by handcuffed the other officers. any access to parking. He stated that cross-examination, On he stated that the numerous law enforcement vehicles were reason he told the “get officers to him out present and that in addition to police, the of there” was that there many people were department, the sheriffs the highway pa- present it “alarming and was other individ- trol, and a body SWAT team full armor uals.” rally. attended the Commissioner Lowe “half-track,” testified that a Stephens, looking
Patricia much organizer of the tank, site, rally, like a parked testified for the was also near the defense. She stated purpose that the rally “snipers” of the was to and that there were three the edu- on cate people illegal about the cost of immi- rooftops. wife, under Tennessee Audrey App.2000) (holding that Lowe’s
Commissioner 40-35-313(a)(l)(A) Code Annotated section Lowe, rally. She helped organize also (1997), judi may impose a trial court near the positioned testified that she of except with the consent cial diversion view of the good had a front entrance and defendant); Ann. see also TenmCode the Defendant confrontation between 40-35-313(a)(1)(A) (2010). § the Defen- stated that the officers. She language nor used obscene dant neither appeal, After the dismissal of the flagpole. She officers with his fought the in the trial court Defendant filed a motion by the get officer struck did not see judicial di- application to withdraw she overheard the claimed that pole. She mo- granted The trial court version. officers, my flag “Don’t let Defendant tell conviction, of judgment tion and entered a ground.” touch the days thirty sentencing the Defendant appeal, In jail confinement. the second State, Lieutenant by the On rebuttal set aside Appeals of Criminal Court large acknowledged that a Weisgarber conduct, hold- disorderly the conviction for at the present were number officers recordings of the inci- ing that the video expected that he rally. explained He with much of the officer’s dent conflicted immigration issue to be “both sides” of ways. testimony significant State pointed out that it in attendance and also Mitchell, E2008-02672-CCA-R3-CD, No. to be highway patrol routine for the (Tenn.Crim.App. *5 2010 WL of this nature. involved in demonstrations 2010). acknowledging Mar. While Appeal recordings the video established Verdict belligerent speaking Defendant was charges on The Defendant was tried with with a raised voice in his interactions resisting conduct and arrest. officers, Appeals Court Criminal deliberations, At of its the conclusion no verbal concluded that there were jury guilty found the Defendant of disor threats made Defendant derly imposed a fine of twen conduct officers and that there was no indication ty-five acquit dollars. The Defendant was had been the video that Officer Wallen sentencing At the resisting ted of arrest. flagpole. the chest Id. struck in requested and was hearing, the Defendant dissented, ob- Judge Ogle Norma McGee Afterward, he granted judicial diversion. serving recordings the video appealed, alleging error the admission incident were not inconsistent with Kyle, challeng of his statement to Officer *8 testimony flag- that the end of the officer’s evidence, ing sufficiency of come contact with Officer pole had into consti arguing that his conviction violated Wallen, briefly,” during the con- “albeit speech. of free protections tutional J., dissenting). (Ogle, frontation. Id. at *6 Appeals dismissed the Court Criminal by right granted application This appeal, pointing appeal out that Court appeal to to con- only judgment permission exists when there is a final the State for (1) conviction, by Appellate Rule of sider whether the trial court erred Tennessee 3(b), prejudicial evi- grant judi potentially Procedure and that the the admission of (2) dence; sufficiency conviction. of the evidence cial diversion did not involve a rule; Mitchell, physical in State v. No. E2007-02807-CCA- the context of facts (Tenn. (3) RS-CD, expressed *2 whether the words 2008 WL 14, 2008); protected right were CrimApp. Aug. accord State v. the Defendant (Tenn.Crim. Norris, speech. to free S.W.3d Analysis danger prejudice.” of the unfair In State Banks, (Tenn.1978), v. 564 S.W.2d
I.
quoted
this
with approval
Court
a defini
argues
The Defendant first
prejudice:
tion of unfair
“An undue ten
by allowing
trial court erred
into evidence
dency
suggest
to
decision on an improper
Kyle
the statement he made to Officer
basis, commonly, though not necessarily,
attempting
park
while he was
to
his vehi
(internal
an emotional one.”
quotations
cle. The Defendant submits that the evi
omitted).
“substantially”
While the word
not relevant
charged
dence was
is not defined
either our rule or the
been
offenses
should have
excluded
rule,
corresponding federal
this terminolo
danger
prejudice.
because of the
of unfair
gy
place
has been construed to
“heavy
noted,
charged
As
the Defendant was
party seeking
burden on the
to exclude the
disorderly
resisting
with both
conduct and
James,
evidence.” State v.
81 S.W.3d
disorderly
arrest. The
conduct statute
(Tenn.2002).
The exclusion of relevant
person
states that
commits
of-
“[a]
[the]
evidence under our rule has been de
who,
fense
in a
[of
conduct]
scribed as “an extraordinary remedy that
public
and with intent to
place
cause
should
used sparingly.”
be
White Vanderbilt
annoyance
[e]ngages
fight-
or alarm ...
v.,
(Tenn.Ct.
Uni
ing
threatening
or
violent or
behavior[.]”
App.1999).
issue,
addressing
When
this
39-17-305(a)(l)
(2003);
Ann.
Tenn.Code
trial courts must be respectful of the func
(6th
2006).
see also T.P.I.—Crim. 30.13
ed.
jury.
tion of the
See 22
A. Wright
Charles
prohibiting resisting
The law
arrest pro-
Graham, Jr.,
& Kenneth W.
Federal Prac
vides that
is an
a person
offense for
“[i]t
(1978).
§
tice and Procedure
Rule
intentionally
or
prevent
anyone
obstruct
403 decisions fall within the discretionary
person
known to the
abe
law enforce-
authority of the trial court and will not be
ment officer ...
from
...
effecting a[n]
overturned absent an abuse of discretion.
any person,
arrest
... of
including the
Banks,
the
39-17-305(a)(l).
§Ann.
Tenn.Code
upon
ior[.]”
was called
A white officer
cer.
however,
Appeals,
of
The Court
Criminal
no-parking
the
to confirm
intervene and
recordings “be-
the video
concluded that
agreed
the Defendant
restriction before
testimony
very signifi-
the officers’
lie[d]
“sped
park
off’ to
Defendant
leave. The
actions
were “void of
ways”
cant
unsupervised,
but
prohibited,
in another
physically
deemed
...
that could be
and, appar-
exiting his vehicle
area before
1241577,
Mitchell, 2010 WL
threatening.”
a “bee-line” to
making
ently
angry,
still
at *5.2
entrance,
front
at
checkpoint
From
place.
took
the confrontation
where
sufficiency of
Initially, when the
easily
have
in-
jury could
proof,
issue, well-established
the evidence is at
had
Kyle and Stuart
ferred that Officers
“the State
appeal,
On
principles apply.
the Defendant
eye contact with
continual
legitimate
strongest
afforded the
must be
which,
events,
of
during the entire course
and all reasonable
view of the evidence
transpired within
appearances,
all
may
be drawn therefrom.”
inferences
minutes.
matter of
514,
Vasques,
v.
S.W.3d
State
necessarily a
Disorderly conduct is not
(Tenn.2007).
credibility of the wit
“The
There is a nexus be
act or deed.
single
nesses,
weight
given
to be
their testi
initial conduct to
the Defendant’s
tween
the reconciliation of conflicts
mony, and
his confrontation
Kyle and
jury
ward Officer
matters entrusted to the
proof
are
checkpoint.
at the
stationed
police
with the
Campbell,
the trier of fact.” State v.
as
particular
(Tenn.2008)
the offensive term is
The use of
(citing
S.W.3d
(Tenn.
the Defendant
ly probative
State,
of whether
v.
575 S.W.2d
Byrge
or in violent or
“[e]ngage[d]
fighting
sufficiency of
Crim.App.1978)). When
“with intent to cause
threatening behavior”
challenged, the relevant
the evidence is
during the
annoyance or alarm”
public
whether,
reviewing the
question is
after
leading
interval
to his arrest.
short
favorable to the
light
in the
most
evidence
not, therefore,
its
abuse
trial court did
State,
have
“any rational trier of fact could
authority by admitting the
discretionary
elements of the crime
found the essential
al., Ten
Neil P. Cohen et
evidence. See
v.
beyond a reasonable doubt.” Jackson
4.03(8)
§
Law Evidence
4-67
307, 319,
nessee
99 S.Ct.
Virginia,
U.S.
of
2005).
(5th ed.
(1979); see also Tenn.
R.App. P. II. of inno guilt presumption removes presumption guilt, trial testi cence and raises considering After burden criminal defendant bears the tapes, and receiv mony, seeing the video instructions,1 showing that the evidence was jury appeal on trial court’s ing the had, guilty ver legally “in a insufficient to sustain the Defendant concluded Hanson, 279 S.W.3d dict.” State v. with intent to cause public place and (Tenn.2009). [e]ngage[d] ... in 275 annoyance or alarm majority panel, holding, on the 2. so the instructions the trial court 1. Because After course, unnecessary to address found it part jury were not made a made to the constitutionality ap- of the statute's either the record, they presume that this Court must plication conduct or the to the Defendant’s State, Tillery proper. were See admissibility the Defendant's comment to (Tenn.Crim.App.1978). *10 police officer. the African-American
391 sent, In the absence of direct evi Judge Ogle, in reference to the video dence, may a criminal offense be estab recordings, pointed out that the Defen- exclusively by lished circumstantial evi dant, having already demonstrated his an- State, 237, dence. Duchac v. 505 S.W.2d ger after being away directed from a pro- (Tenn.1973); State, 241 Marable v. 203 parking hibited area by Kyle officers 440, 451, (1958). Tenn. 313 S.W.2d 456-58 Stuart, “proceeded at pace,’ a ‘fast visibly however, Ultimately, jury decides “[t]he upset, entry toward the gate where the weight given the to be to circumstantial gathered.” officers were Id. at *6 (Ogle, evidence, and inferences to be drawn ‘[t]he J., dissenting). She observed that when evidence, and[, moreover,] from such the directed to flag remove the from pole, its extent to which the are circumstances con “raved,” the Defendant “ranted” guilt sistent with and inconsistent with in “loudly taunting get the officers to nocence, questions primarily are for the attendees, attention of rally other getting ” Rice, 646, jury.’ State v. 184 S.W.3d 662 into [their] faces.” Id. (Tenn.2006) Marable, (quoting 313 S.W.2d From its extensive discussion of the vid- 457). at appeal, may On the court eotape and conclusion that the videotape substitute its inferences for those drawn testimony “belies the very significant by the trier of fact in circumstantial evi ways,” id. (majority at *5 opinion), the Lewter, dence eases. State v. 313 S.W.3d Appeals Court Criminal appears to have 745, (Tenn.2010); State, Liakas v. reweighed the evidence and concluded that (1956). 856, Tenn. 286 S.W.2d the videotape necessarily “ more reli- The standard of review ‘is the same able than testimony of the witnesses upon whether the conviction is based di testifying on ” behalf of the State. It is of evidence,’ rect circumstantial or a course, jury the role of the to determine Hanson, combination of both. 279 S.W.3d the credibility of the witnesses and to re- Sutton, (quoting at 275 State v. Here, solve the conflicts the evidence. (Tenn.2005)); State v. Pender jury, properly instructed on the statu- (Tenn.Crim. grass, 13 S.W.3d 392-93 crime, tory elements of saw the wit- Dorantes, App.1999); see also State v. nesses, firsthand, testimony heard their (Tenn.2011). S.W.3d and also saw the videotapes. The evidence Appeals The Court of Criminal found when, is sufficient even if a small mar- that the captured by events the video cam- gin, jury a rational unanimously could con- portions eras so with conflicted of the offi- evidence, clude all from of the direct and testimony cers’ that a conviction for disor- circumstantial, Defendant, that the “in a derly conduct was not warranted. For public place with the intent to cause example, pointed the court out that annoyance ... [e]ngage[d] or alarm in ... recordings video did “not show the Defen- threatening behavior.” Ann. Tenn.Code dant shaking flag[pole] up and down 39-17-305(a)(l). § and striking Officer Wallen in the chest undisputed It is that times, rally ... was held two or three or at all” as indi- public place. in a Kyle, Considering cated Officer the issue the videos State, light are ... most favorable to the as we “void of actions that could be do, Mitchell, required physically rally deemed are attracted indi- threatening.” Further, viduals each supporting WL *5. side of the issue of majority opinion illegal immigration. jury observed that there was heard testi- Defendant, testimony mony “no felt officers threat- over short ened time, the Defendant.” Id. In her dis- disregarded parking interval of *11 392 re- stated, entitled to jury the As rudely chal- rally and for the
restrictions testimony, as- in the any Kyle, an solve differences authority of Officer the lenged witnesses, and the credibility used the of The Defendant sess African-American. Offi- evidence as in reference to from all of the inflammatory term inferences an draw v. had to intervene. Defendant. State officer of the Kyle. A white to the behavior cer made angrily Considering and Defendant reacted at 335. The 245 Campbell, S.W.3d only remarks not disparaging favorable to intemperate, light most evidence in the After others as well. Kyle, Officer but State, have determined jury could area, no-parking unguarded in an parking Defendant, public place, in a while security toward the Defendant rushed annoyance public cause intended to place took before All of this checkpoint. in violent or threaten- by engaging alarm video. on either appeared Defendant evidence, therefore, is The ing behavior. stop- amenable to was not The Defendant of the the conviction support sufficient one officer checkpoint. "When ping at the Defendant. stepped path, the Defendant blocked his loudly ques- toward Officer Stuart III. precautions of the propriety tioned the asserts The Defendant also the event. The Defen- established Due Pro violates the that his conviction the attention of attracted dant’s behavior Fourteenth Amendment cess Clause hand, one of on at least spectators several because to the States Constitution United camera to record video whom turned his entitled protections Amendment First at the check- of the Defendant’s behavior vociferously challenge police Defendant was in Weisgarber, who point. Lieutenant from as he refrained authority3 long so coordinating secu- charge planning of words, as defined “fighting” of the use about rally was so concerned rity at New Chaplinsky v. landmark case of that he di- of the Defendant the behavior 766, 568, 62 S.Ct. 86 Hampshire, 315 U.S. “to checkpoint at the rected the officers (1942).4 State, relying on L.Ed. 1031 get him out of there.” 1, Island, 484, 489 n. 116 517 U.S. Rhode Amendment to the United States 3. The First (1996) 1495, (citing any "abridging the prohibits law L.Ed.2d 711 Constitution S.Ct. 134 Const, I, cases). amend. speech,” protections of U.S. ex freedom are First Amendment 1250, Larion, Constitution acknowl while the Tennessee 119 F.3d pansive. Sandul of edges free communication "[t]he Cir.1997). (6th permissi In order to be the invalu thoughts opinions, is one of ble, speech serve any regulation of free "must man, may every rights citizen able interest, public important and substantial write, any subject, freely speak, print on suppression free wholly divorced from being responsible abuse of that liber for the "must be no speech,” and the restrictions Const, I, § The Tennessee ty.” Tenn. art. 19. furtherance of greater than is essential to have a provision has been "construed City Messengers, L Inc. v. that interest.” H & scope as that afforded” at least as broad Brentwood, (Tenn. S.W.2d press speech and of the freedoms of O’Brien, 1979) (citing States v. United Amendment. Leech v. Am. Booksellers First 20 L.Ed.2d 88 S.Ct. U.S. Assoc., (Tenn.1979). (1968)). Further, Due Process Clause of because the of the United the Fourteenth Amendment who had cursed Chaplinsky, a defendant 4. In protections States Constitution extends officer, "[g-]dam- calling municipal him a gov and local Amendment to state the First fascist” in and "damned ned racketeer” ernment, infringement by a state or local violating a place, convicted of government the First Amendment violates 766. While 62 S.Ct. statute. Id. state Fourteenth. U.S. Const. rather than the statute, XIV; on its validity of the upholding the Liquormart, Inc. v. amend. see also
393 its brief filed with the Court of Criminal dant maintains that his words to the police Appeals, submits that the language of the officers fell below that threshold. Vir Cf. disorderly conduct Black, applies only statute ginia 343, 359-60, 538 U.S. 123 when interpreted proscribe to or words 1536, 155 (2003) (observ S.Ct. L.Ed.2d 535 conduct protected by not or federal ing that a state’s prohibition of “true state constitutions and that the Defen- threats” protection serves as a against the dant’s behavior was unprotected. “fear of violence” and the “disruption that endangers”). Further, fear argues he that
While acknowledging there is no consti
this court should subscribe to a concurring
abridgement
tutional
long
so
as a statute
opinion
by
authored
Lew
Justice Powell in
does
prohibit
no more than
face to face
“
Orleans,
City
is v.
New
913,
‘likely
words
408 U.S.
provoke the
92
average per
of
2499,
(1972)
retaliation,
S.Ct.
(Powell,
son to
L.Ed.2d 321
thereby
cause a
”
J.,
Johnson,
breach
Texas v.
peace,’
concurring),
of the
who
police
wrote that
offi
397, 409,
2533,
491 U.S.
cers should be
S.Ct.
more tolerant of “fighting”
(1989)
(quoting Chaplinsky, words than
L.Ed.2d 342
average
citizen and held to
574,
766),
U.S.
62 S.Ct.
the Defen
“a higher degree of restraint.”5
Finally,
applied,
1989)
face
Supreme
and as
(reversing
Court made
disorderly conduct convic-
following
observation:
defendant,
tion where the
being urged
after
down,”
Allowing
scope
language
by
the broadest
a sheriff to "calm
called the sheriff
Amendment,
purpose
bitch,”
of the Fourteenth
"a fat son of a
because the conduct
it
right
is well understood that the
of free
entirely
consisted
of verbal abuse and there
speech is not absolute at all times and un-
physical
no threat of
any
assault or
indi-
der all circumstances. There are certain
cation that members of the crowd were incit-
narrowly
well-defined and
limited classes of
conduct);
State,
ed
Garvey v.
speech,
prevention
punishment
of
709,
(re-
S.W.2d
711 (Tenn.Crim.App.1975)
thought
any
which has never been
to raise
versing
a
conduct conviction for
problem.
Constitutional
These include the
shouting "sooey” to
walking
an officer
toward
obscene,
libelous,
profane,
lewd and
City
application
Hall
"average
insulting
"fighting"
and the
or
words— person"
Chaplinsky).
test established in
very
those which
their
utterance inflict
Read,
In State v.
165 Vt.
can-American officer as
properly admitted into
I
separately
evidence. The De-
write
to dissent from the
*14
term,
fendant’s use of that
his refusal to majority’s decision to affirm the defen-
obey the officer’s directive to remove his dant’s conviction for disorderly conduct.
vehicle from a no-parking area until a
giving
After
proper deference
jury’s
intervened,
angry
white officer
his
re- verdict, I
agree
cannot
that the evidence is
sponse,
belligerent
and his loud and
con-
sufficient to
Mr.
support
Mitchell’s convic-
frontation of the
rally
officers at the
area
Moreover,
tion for disorderly conduct.
I
checkpoint qualified
threatening
as
behav-
conclude that Mr. Mitchell’s conduct was
designed
annoy
ior
in public
to
alarm a
protected as free speech.
Moreover,
place.
the Defendant’s conduct
An anti-immigration rally
planned
protections
is not entitled to the
of free
for
the afternoon of June
on the
reasons,
speech.
judgment
For these
the
lawn of the Hamblen County Courthouse.
of the
Appeals
Court of Criminal
is re-
rally organizers
encouraged partici-
versed and the conviction and sentence is
pants
reinstated.
to attend and “wave
adjudged against
Costs are
the American
Defendant,
Mitchell,
flag proudly
the
Teddy Ray
display
for
and
signage that edu-
may
which execution
if necessary.
issue
cates.” Teddy Mitchell attempted to do
Builders, Inc.,
749, 761,
Non-Violence,
288, 293,
Greenmoss
472 U.S.
tive
468 U.S.
(1985)
(1984)).
(opin
105 S.Ct.
86 L.Ed.2d
S.Ct.
Parking around the courthouse was arrest, explained in the participated also attempted Mr. Mitchell stricted. When “Sir, you you public when cause a scene area, he had a verbal park in a restricted disorderly.” are used exchange police with two officers and As Mr. Mitchell drove off epithet. racial Sufficiency Evidence of elsewhere, car the two officers park his arrested and indicted Mr. Mitchell was rally walked to the entrance and told resisting conduct and arrest. guy coming, he’s “Hey, officers there this arrest, resisting guilty He was found not Mitchell, sixty-one years Mr. then mad.” the crime of disorder- but was convicted of old, rally carrying arrived at the entrance trial, At the state had the ly conduct. right in his hand a soft drink can and beyond a proving reasonable burden flag, poster, an American his left hand 1) public “in a doubt that Mr. Mitchell was folding lawn chair. There were at least 2) “with intent to cause an- place,” en- standing seven officers at sidewalk 3) alarm,” noyance “engag[ing] or trance courthouse lawn. As Mr. threatening behavior.” ... violent or sidewalk, attempted Mitchell to enter the 39-17-305(a)(l) (2003) § Ann. Tenn.Code stopped he was Officer Stuart added). (emphasis flag take into the told that he could not Mr. Mitchell’s conduct was rally. protested loudly. Although Mr. Mitchell On in the video, the fatal flaw saying belligerent, he can be heard “Can rude and its failure to establish that you flag take the damn Mexican in there? State’s case was was violent or you flag take the Mexican in there? Mr. Mitchell’s conduct Can important There is an telling threatening. You are me that American belligerence between flag....” depict The a scene critical distinction videos “Bel- threatening or conduct. agitated, where Mr. Mitchell is but the and violent 1989). Scott, ligerent” “[g]iven as to or In is defined the defendant became upset with sheriff aggressive hostile behavior.” the local for arresting marked or her husband for driving. reckless Id. at Millsaps, State No. 03C01-9409-CR- (Tenn.Crim Upon arrest, *1. her husband’s *2 which the 1996 WL at defendant 17, 1996) apparently thought was .App.July (quoting American warranted, she other and two individuals Heritage English Lan Dictionary of loud, who were present “mounted a pro (1969)). To be considered threaten guage fane and lewd verbal assault on the sher behavior, ing belligerent behavior must be finale, iff.” Id. As a grand she flung a with an act or combined “overt direct cup of ice parking across the lot and called Id.; see threat harm.” also State v. the sheriff a “fat of a son bitch.” Id. She Melton, M1999-01248-CCA-R3-CD, No. peace. convicted of breach In *7 (Tenn.Crim.App. WL conviction, reversing the the Court of 2000). Aug. “Violent” behavior is de Criminal Appeals held the defendant’s Of, to, relating fined as follows: “1. or words were mere insults and that there by strong physical characterized force. 2. was no that she had evidence threatened Resulting from extreme or intense force. or counseled any physical assault on the Vehemently passionately 3. threaten Further, sheriff. Id. the sheriff did not (7th ing.” Dictionary Black’s Law appear “greatly to be stirred the in 1999). ed. sults.” Id. The court did note that the This belligerent distinction between be- *16 sheriff had a concern that there was a threatening havior and violent or behavior present things crowd get and could out of Millsaps. was evident in Police officers hand: is reasonable to infer ... “[i]t the responded call to a disturbance at a res- sheriff believed he was faced with an ex that taurant and learned the defendant plosive situation and made the arrest had been a in the participant disturbance. prevent However, violence.” Id. at *3. Id. at *1. officers the When the asked the court was an held that this insufficient step outside for additional defendant reason to arrest the defendant because the “ questioning, the became “bellig- defendant danger’ ‘clear present requires test erent,” them, with go .refused to and the reviewing inqui court to make its own at one keys his car of the offi- “toss[ed]” ry ‘danger’ into whether the existed.” Id. outside, Id. cers. Once he was the defen- Commc’ns, (citing Landmark Inc. v. Virgi began “cussing,” “hollering,” dant and be- nia, 435 98 U.S. S.Ct. “very Id. belligerent.” Although came (1978)). Accordingly, in L.Ed.2d revers police the officers testified that the defen- conviction, ing emphasized the court the threatening, dant’s actions were violent or that the defendant had not threatened neither officer the regarded defendant’s assault, anyone physical with that there tossing of as keys threatening his car or was no evidence that members of the menacing. Id. at *2. The Court of Crimi- present crowd were “incited or inclined to Appeals disorderly nal the con- reversed intervene,” “there and that was no ‘clear conviction, that the finding “[bjelliger- duct of violence to present danger’ weigh ent actions do not rise the level of against expression.” her right of free Id. violent or Id. threatening.” required Other what is decisions reveal belligerent
The distinction
be-
“threatening
between
for the State to
con
establish
threatening
havior
violent
disorderly
behavior
duct” for a
conduct conviction.
(Tenn.
Scott,
Creasy,
was also evident in
v.
No.
In State v.
S.W.2d 829
State
16, Crim.App.1994), the
was arrest
(Tenn.Crim.App.
court
that,
in
note
unlike the defendant
[W]e
threat
he felt
testimony
“personally
that
Scott,
appellant
not throw his
did
ened.” Id.
parking
license across the
lot.
driver’s
Rather,
Creasy,
like the
in
defendant
he
Roberts,
In State
police
officer.
directed his action at
was ad
(Tenn.Ct.App.2002), the defendant
Moreover,
unlike the defendant Mill-
judicated delinquent based on his disorder
not “toss”
saps,
appellant
did
discus
ly
getting
into a heated
conduct
license
driver’s
in the direction
“I’ll
stating,
sion with a school official and
Rather,
threw the
officer.
he
license
you.”
661. After
take care of
Id. at
sufficient
to strike
officer
with
force
told
official called
defendant
Finally, unlike
in the chest....
“come on
and made
official to
outside”
Millsaps,
police
[the
officer]
indicating
official should
gestures
officers
appellant’s
behavior in
outside;
interpreted the
the official
testified
come
throwing
appeared
license
driver’s
threatening.
Id.
actions as
defendant’s
menacing.
“mere
the court
appeal,
On
noted
*17
can be
epithets,
epithets
unless the
Melton,
added);
verbal
at *7
see also
(emphasis
words,’
by
‘fighting
cannot
Bason,
considered
v.
E2000-02276-CCA-R3-
State
support a conviction under
themselves
CD,
(Tenn.Crim.App.
Free
topic
immigration
of
a matter of
concerned
social,
Given the absence of
“public,
violent or threaten-
or other concern to the
conduct,
ing
Connick,
146,
it
community.”
is clear that Mr. Mitchell
461
at
U.S.
mean,
was arrested because the officers feared
defendant was convicted
conviction,
verbally and
officer;
merely because he
victed
upholding
in
nicipal
police
negatively protested [a
officer’s]
certain
are
“[t]here
the Court said
Surely, one is not to
treatment of him.
speech,
preven-
well-defined classes of
voicing
punished
nonprovocatively
which has never
be
for
punishment
tion and
obviously felt
objection to what he
thought
to raise
Constitutional
been
571-72,
by a
highly questionable
was a
detention
at
ever, is the Achilles’ heel in the State’s position. Mr. belligerent Mitchell’s en- officers,
counter with which during he car- drink, chair, ried a a flag, poster, and a lasted less than 15 seconds. None
officers they testified felt threatened dur- encounter, ing the There was no evidence In re Robert Victor LINEWEAVER. produced Mr. Mitchell incited or im- minent lawless action others or that his Appeals Tennessee, Court of behavior likely produce to incite or Section, Western at Nashville. such action. Not a single rally attendee effect, Sept. testified to videotapes this and the Session. do not support the conclusion. Officers’ Jan. 2010. speculation
mere may as to what have happened was not a basis to arrest Mr. Appeal Permission to Denied Mitchell boisterously expressing his Supreme Aug. Court 2010. views on a matter of concern. Therefore, I would hold that Mr. Mitchell’s protected
conduct was speech free under the First Amendment.
Evidence Statements of Defendant’s I majority’s concur with the conclusion that the trial court did not abuse its discre-
tion in admitting into evidence statements
Mr. Mitchell police made to officers while
he attempting park his automobile before his arrival at the entrance to the
rally and before his arrest for
conduct. Although I do not think the
statements were particularly relevant on the issue of guilty whether he was of disor- conduct,
derly say I cannot that it was an abuse of discretion to admit the evidence.
Conclusion *20 giving After proper deference to the verdict, jury’s I agree cannot that the evi-