Brendle v. City of Houston

• Citation: 759 So.2d 1274
• Decision Date: 06 June 2000
• Docket Number: No. 1998-KM-01656-COA.,1998-KM-01656-COA.
• Parties: William BRENDLE a/k/a William D. Brendle, Appellant, v. CITY OF HOUSTON, Mississippi, Appellee.
• Court: Court of Appeals of Mississippi

759 So.2d 1274

William BRENDLE a/k/a William D. Brendle, Appellant, v. CITY OF HOUSTON, Mississippi, Appellee.

No. 1998-KM-01656-COA.

Court of Appeals of Mississippi.

June 6, 2000.

Luther C. Fisher, IV, Tupelo, Attorney for Appellant.

James M. Hood, Jr., Houston, Attorney for Appellee.

EN BANC.

LEE, J., for the Court:

¶ 1. This is a case originating in the Municipal Court of Houston, Mississippi in which the appellant, William Brendle, was convicted of public profanity and resisting arrest. Brendle appealed and after a trial de novo, the Circuit Court of the First Judicial District of Chickasaw County "affirmed" the judgment of the municipal court and remanded the case to the municipal court for sentencing. Brendle timely perfected his appeal to this Court raising the following issues: (1) whether the trial court erred in denying Brendle's motion to dismiss the charges of public profanity and resisting arrest based on lack of jurisdiction; (2) whether Brendle's speech constituted public profanity as a matter of law; (3) whether Brendle used reasonable means to resist arrest; (4) whether the circuit court erred in excluding a prior tape recorded statement; and (5) whether the circuit court erred in excluding the Houston Police Department's Code of Ethics/Rules of Conduct. After determining that the circuit court committed manifest error in applying the law to the facts of this case, we reverse and vacate Brendle's conviction.

FACTS

¶ 2. On January 19, 1996, Herbert Miller sought the assistance of Houston Police Officer Trances Ford. Miller had a business dispute with Chickasaw Mechanic, Inc. owner William Brendle and believed that discussions with Brendle might lead to an altercation or disturbance. Officer Ford informed Miller that he would only accompany Miller as an observer. Ford, however, allowed Miller to travel to Brendle's mechanic shop with him in his police vehicle. Once at Chickasaw Mechanic, both Miller and Officer Ford entered the Chickasaw Mechanic, Inc. office. Miller spoke to William Brendle's wife. Shortly thereafter, Brendle entered the office and the two men discussed Miller's problem. According to Officer Ford, it was during this discussion that Brendle used profanity. Officer Ford testified that, to the best of his recollection, Brendle said (to him), "I'm tired of this God d___ police sticking their nose in s___ that doesn't even involve them." Officer Ford testified that after Brendle initially used the profane language he issued a warning to him not to do so again or he would arrest Brendle. Despite Officer Ford's admonition, Brendle voiced additional profane remarks towards Officer Ford.

¶ 3. Brendle's recollection of the discussion differed. He testified that he questioned Officer Ford about the City of Houston's ethics policies regarding police officers transporting civilians. Brendle claims the profanities he expressed were in response to the profane language used by Officer Ford in response to the question.

¶ 4. Officer Ford then informed Brendle that he was under arrest. According to Ford, Brendle did not cooperate and "snatched himself away" from Ford's grip. Ford testified that he wrestled with Brendle to the ground before handcuffing him. Consequently, Officer Ford charged Brendle with public profanity and resisting arrest. The charges against Brendle were initially written on standard Uniform Traffic Violation tickets. Ticket no. 005439 charged Brendle with "public profanity" and ticket no. 005438 charged him with "resisting arrest." The tickets were signed by Officer Ford and dated January 18, 1996.

¶ 5. While there is no transcript of the proceedings before the municipal court, there are indications in the circuit court record that at the municipal court level, defense counsel challenged the sufficiency of the traffic tickets to apprise him of the charges against him. At the municipal court trial held sometime in November of 1996, the City's attorney made an ore tenus motion to amend the charges. Then on January 24, 1997, the City filed two affidavits in which Officer Ford attested that Brendle said the words "God d___", "d___," and "f___" in a public place-Chickasaw Mechanic, Inc.-and in the presence of two or more persons. In addition, Ford swore that Brendle resisted his arrest.

¶ 6. On the same day the affidavits were filed, the municipal court judge entered a judgment of guilty as to both charges and fined Brendle $120 for the public profanity charge and $330 for the charge of resisting arrest. On January 27, 1997, Brendle filed his notice of appeal to the Circuit Court of the First Judicial District of Chickasaw County, Mississippi.

¶ 7. The circuit court trial was held on September 21, 1998. Counsel for Brendle again moved to dismiss the matter for lack of jurisdiction on the grounds that the uniform traffic tickets failed to set out the elements of the crimes for which he was charged and failed to name the statutes which he allegedly violated. The circuit court denied Brendle's motion "without prejudice."

¶ 8. Brendle and his wife testified for the defense. Essentially, Brendle testified that any profanities he made were in response to such words being used against him. Mrs. Brendle testified that after her husband questioned him, Officer Ford said, "Well, I'm going to get some answers to my d___ questions." Even further she stated that as her husband turned his back on Officer Ford to return to his office, Officer Ford took Brendle by the shoulders, from behind, and "slung" him to the ground before handcuffing him.

¶ 9. At the close of trial, the circuit court announced that it would make its ruling the following day. On October 2, 1998, the circuit court entered its final judgment "affirming" the municipal court's guilty verdicts and remanding the matter to the municipal court for sentencing.¹ Brendle then initiated this appeal.

DISCUSSION

¶ 10. Brendle raised a number of issues on appeal. However, we will discuss only one issue as we have determined it to be dispositive of this case. We first recognize our standard of appellate review. Generally, we will not reverse a trial judge sitting without a jury, unless the findings of the trial judge are manifestly erroneous or clearly wrong. Amerson v. State, 648 So.2d 58, 60 (Miss.1994).

WHETHER THE LANGUAGE USED BY BRENDLE WAS PROTECTED SPEECH UNDER THE FIRST AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION

¶ 11. Brendle argues that Mississippi Code Annotated section 97-29-47 (Rev. 1994) was unconstitutionally applied to his case.² Section 97-29-47 provides:

Public profanity or drunkenness

If any person shall profanely swear or curse, or use vulgar and indecent language, or be drunk in any public place, in the presence of two (2) or more persons, he shall, on conviction thereof, be fined not more than one hundred dollars ($100.00) or be imprisoned in the county jail not more than thirty (30) days or both.

¶ 12. Brendle asserts that he was "charged for public speech about a public and political matter related to the violation of law by [a] law enforcement officer." More specifically, Brendle contends that even if it is assumed that he actually spoke the words as attested to by Officer Ford, that such speech was "pure speech" protected by the First Amendment to the U.S. Constitution. He relies on Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), to advocate that the language he used does not constitute profanity because there was no showing of any intent to incite disobedience, cause a fight, or otherwise cause a violation of law. In Cohen, the defendant was convicted under a California breach of the peace statute prohibiting a disturbance of the peace by offensive conduct for walking through a courthouse corridor wearing a jacket bearing the words "F___ the Draft" in a place where women and children were present. Id. at 16, 91 S.Ct. 1780. The United States Supreme Court held that the conviction could not be justified either upon a theory that the quoted words were inherently likely to cause violent reaction or upon the assertion that the states may properly remove such an offensive word from the public vocabulary. Id. at 25, 91 S.Ct. 1780. The Supreme Court determined that the states may not, consistently with the First and Fourteenth Amendments, make the "simple public display involved of the single four-letter expletive a criminal offense." Id. at 26, 91 S.Ct. 1780.

¶ 13. Brendle closes his argument with the assertion that even in cases involving "the most `scurrilous' epithets, the State cannot regulate the civility of such speech when it is about a matter of public concern, constitute[s] pure speech and is not intended to cause any violation of laws." The City's response to Brendle's assertions is that Cohen, on its facts, is distinguishable from Brendle's case. Further, the City contends that "Brendle's cursing of the police was directed at a police officer and would have been taken as a personal insult by any person of reasonable sensibilities."

¶ 14. It is important to observe here that Brendle does not challenge the constitutionality of Mississippi's public profanity statute on its face nor does he challenge the sufficiency of the evidence to support the charges for public profanity.³ Neither was appropriately preserved for our review. Rather, Brendle claims that the public profanity statute was unconstitutionally applied to him. In other words, he asserts that the words he used in his exchange with Officer Ford encompassed constitutionally protected speech not subject to regulation by the State of Mississippi. The ultimate question is whether Brendle's words can constitutionally support a conviction or whether they are protected by the First Amendment.

¶ 15. The Mississippi Supreme Court has not been given the opportunity to interpret section 97-29-47 of the Mississippi Code, as amended. Accordingly, this presents us with a matter of first impression. "In a...