State v. Mitchell

343 S.W.3d 381

STATE of Tennessee

v.Teddy Ray MITCHELL.

Supreme Court of Tennessee, at Knoxville.

Jan. 5, 2011 Session.March 31, 2011.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Asst. Attorney General; C. Berkeley Bell, District Attorney General; Victor Vaughn, Asst. District Attorney General, for the appellant, State of Tennessee.Darren V. Berg, James Charles Wright, and Robert Deno Cole, Knoxville, Tennessee, for the appellee, Teddy Ray Mitchell.

OPINION

GARY R. WADE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, and WILLIAM C. KOCH, JR., JJ., joined. SHARON G. LEE, J., filed a separate opinion concurring in part and dissenting in part.

The defendant was convicted of disorderly conduct and sentenced to thirty days in jail, to be served on probation. On direct appeal, the Court of Criminal Appeals reversed, holding that the evidence was insufficient. This Court granted the State permission to appeal in order to consider the admissibility of a racially derogatory term, to review the sufficiency of the evidence, and to determine whether the conviction violated the constitutional right to free speech. Because the disputed testimony was properly admitted, the evidence was sufficient to support a conviction for disorderly conduct, and there was no violation of the right to free speech, the Court of Criminal Appeals is reversed. The judgment of conviction and sentence is reinstated.

Background

A rally was scheduled at 2:00 p.m. on June 24, 2006, at the Hamblen County Courthouse grounds in Morristown by a group attempting to raise public awareness of the effects of illegal immigration. Organizers promoted the event with a pamphlet that extended a general invitation to attend the rally, “[b]ring your family, wave the American flag proudly, and display signage that educates.”

Lieutenant Chris Weisgarber, a training officer with the Morristown Police Department, was placed in charge of the planning and coordination of security for the rally. Because he had received information that between three and five hundred members of an Hispanic organization, having views on the immigration issue that were in conflict with the organizers of the event, also planned to attend, Officer Weisgarber, with the assistance of the Hamblen County Sheriff's Department and the Tennessee Highway Patrol, arranged a security force of between seventy-five and ninety law enforcement officers in an effort to avoid possible confrontations between the two groups. Some officers were stationed on the roofs of buildings, a number of squad cars were present, designated parking areas were established, and the perimeter of the rally area was marked with temporary orange fencing. At a checkpoint established by the police, attendants were screened and searched in order to assure that no weapons were present. The security plan permitted the American flag, but did not permit flagpoles of any size to be carried into the demonstration area for fear that they might either contain a hidden weapon or be used as a weapon. A single flagpole displaying the American flag was placed near the speaker stand, which was separated from those in attendance by a fence and several officers.

The course of the events that led to the arrest of Teddy Ray Mitchell (the “Defendant”) for disorderly conduct was reflected not only by testimony at the Defendant's November 3, 2007 trial, but also by two digital video recordings made exhibits at the trial, one taken with a camera placed by the Tennessee Highway Patrol (“THP video”) on an upper floor of the courthouse (lasting one minute, forty-four seconds) and another taken from a different angle by a spectator (lasting one minute, thirty-eight seconds). Both video recordings were submitted as exhibits and were used in cross-examination of officers.

The THP video depicts only a portion of the event, beginning with the Defendant walking toward the rally after parking his vehicle, and the filming is partially obscured by a hedge and orange plastic fencing. Although the Defendant can be heard speaking or shouting, little is intelligible. The officers cannot be heard. The Defendant is arrested shortly after his arrival. The second video recording, which was not in a fixed position, begins shortly after the Defendant's arrival at the checkpoint. The audio portion is marginally better than the THP recording. Neither video recording used time-stamping to reference specific portions of the video.

At trial, Andre Kyle, a patrol officer with the Morristown Police Department, testified that he had received instructions in advance of the rally to prohibit parking along the sidewalk near the front of the courthouse. When the Defendant attempted to park his vehicle in that area, Officer Kyle, an African–American, informed him that he would need to park in another location. In response, the Defendant said, “There's no nigger going to tell me where I can and can't park.” Officer Kyle then sought assistance from Matt Stuart, also of the Morristown Police Department. After Officer Stuart also instructed the Defendant that he could not park his vehicle in that location, the Defendant reacted angrily and “sped off.” According to Officer Kyle, the Defendant parked his vehicle nearby in another prohibited area, but at that point no officer was there to direct him to move; the Defendant then “made a b [ee]-line toward the [entrance] gate.” As he did so, Officers Kyle and Stuart warned officers at the entrance that the Defendant was “mad.” When the Defendant arrived at the entrance, Officer Kyle overheard another officer inform him that he could take his flag into the rally area but not the flagpole, which had a pointed metal eagle at the top. He recalled that the Defendant responded by loudly yelling, among other things, “I'm an American. You can't—you mean to tell me I can't bring a flag....” At this point, Officer Kyle heard Officer Stuart, who had received a radio communication from another officer, inform the Defendant that he was under arrest. According to Officer Kyle, the Defendant “resisted and started fighting, pok[ing] another officer,” Troy Wallen, with the flagpole as he did so. Officer Kyle stated that the Defendant shook the flagpole up and down as he struggled with the officers before “they fell into the bushes.” Eventually, Officer Kyle was able to handcuff the Defendant. Officer Kyle was cross-examined with one of the videotapes of the confrontation. During the cross-examination, excerpts of the videotape were shown to Officer Kyle. The videotape was started and stopped, and the record reflects neither which videotape was used nor which portions of the videotape were used in cross-examination. Officer Kyle acknowledged that in addition to the flagpole and flag, the Defendant carried a soft drink, a poster, and a lawn chair to the entrance.

Officer Stuart, a fifteen-year veteran with the Department, testified that he was first alerted to the Defendant who, while still inside his car and some distance away, began to “scream” and “holler.” In an effort to assist Officer Kyle, Officer Stuart explained to the Defendant that the area was restricted and that the Chief of Police had established the parking rules for the event. The officer recalled that the Defendant, in response, made derogatory remarks about the Chief, but moved his vehicle. He described the Defendant as cursing, “real belligerent,” and “irate.” After seeing the Defendant park in another “no parking” area, Officer Stuart notified Detective Chris Blair, who was at the front entrance, of the Defendant's objectionable demeanor and the possibility of “problems.” According to Officer Stuart, the Defendant continued at “a fast pace” toward the entrance and was visibly upset. At the checkpoint, he informed the Defendant that the rules established to ensure safety at the event precluded the use of flagpoles in the rally area. The Defendant objected, stating he would not comply with the rule. Acting in response to the radio communication, Officer Stuart informed the Defendant that he was under arrest and initiated the process of taking the Defendant into custody.

On cross-examination, Officer Stuart acknowledged that Tom Lowe, a Hamblen County Commissioner who had been invited to speak at the event, had been allowed to place a flagpole displaying the American flag near the speaker's stand. Officer Stuart was cross-examined with excerpts of both videotapes, but the record does not indicate whether portions or all of the videotapes were used in the cross-examination. Officer Stuart explained that the Defendant's words, in contrast to the others present, could be heard on the tape because he was “talking loud.” The officer described his own speaking tone as “normal” when he informed the Defendant that he was under arrest. Officer Stuart admitted that he could not make out the Defendant cursing on the videotape.

Officer David Hancock, who had been assigned to the checkpoint at the front entrance of the courthouse but was not involved in the arrest, first noticed the Defendant when he walked briskly past an officer who had tried to stop him. Officer Hancock testified that the Defendant, despite the presence of the officers at the entrance, “wasn't paying attention to anything except what was head on ... [and] was not paying any attention to us.” Although Officer Hancock heard the Defendant shouting, he neither heard the Defendant curse nor saw him fight with the arresting officers.

Detective Blair was stationed at the main gate at the front of the courthouse. He used a metal detection wand to assure that no weapons came into the event site. As Detective Blair was informing a man and woman that they could not take a pocket knife into the courtyard, his attention was drawn to the Defendant, who was speaking in a loud voice. He recalled that even though he tapped the Defendant on the shoulder and...