State v. Ervin
| Citation | 40 S.W.3d 508 |
| Parties | STATE of Tennessee, Appellee, v. Lorenzo Edward ERVIN, Appellant. |
| Decision Date | 12 February 2001 |
| Court | Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee |
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Ardena J. Garth, District Public Defender, Donna Robinson Miller, Assistant District Public Defender, On Appeal, Chattanooga, TN, Dwight Aarons, Associate Professor, Amicus Curiae, Knoxville, TN, Charles G. Wright, Jr., At Trial, Chattanooga, TN, for the appellant.
Paul G. Summers, Attorney General & Reporter, Todd R. Kelley, Assistant Attorney General, Nashville, TN, William H. Cox, III, District Attorney General, Thomas Evans, Assistant District Attorney General, Chattanooga, TN, for the appellee.
Application for Permission to Appeal Denied by Supreme Court February 12, 2001.
The defendant, Lorenzo Edward Ervin, was indicted by a Hamilton County Grand Jury for disrupting a meeting or procession in violation of Tennessee Code Annotated § 39-17-306. A jury returned a verdict of guilty on April 4, 1994. The trial court denied the defendant's motion for a new trial, and the defendant filed a timely notice of appeal. On November 28, 1995, this court dismissed the appeal and held the defendant's attorney in contempt for failure to comply with his responsibilities on appeal. In 1997, the defendant filed a petition for post-conviction relief in the Criminal Court of Hamilton County. On December 3, 1997, the trial court granted the defendant a delayed appeal and ordered the remainder of the petition to be held in abeyance. The trial court denied the defendant's second motion for a new trial on January 30, 1998. The defendant appealed, listing two basic assignments of error:
Based upon our review, we affirm the conviction.
Although the record is not entirely clear on the background of this matter, it appears that there had been protests and marches in downtown Chattanooga during the several days prior to May 13, 1993, which was the date of the offense with which the defendant was charged. Apparently, these gatherings were to protest the fact that the Hamilton County Grand Jury had not indicted eight police officers following the death of an individual named Larry Powell. According to the trial testimony, there were no other arrests during these demonstrations, which occurred approximately two days before and two days after May 13. On that date, because of a disruption which occurred during the dedication ceremony of a Law Enforcement Memorial for officers who had fallen in the line of duty, the defendant was arrested and charged with violation of Tennessee Code Annotated § 39-17-306. He was convicted of this offense and sentenced to confinement for six months in the Hamilton County Workhouse. However, the defendant's sentence was suspended upon his completion of ten days of "public works," which was also suspended upon the defendant's submitting proof to the trial court of his attending school to obtain his doctorate degree.
At that point, those chanting were arrested and taken to another area.
The master of ceremonies for the event was Earl Freudenberg who testified the "protesting" began as he was making his opening remarks. The protesting caused him to lose his train of thought, but he continued to read his "prepared remarks."
Captain Paul Calloway of the Chattanooga Police Department testified that he was present as the ceremony was beginning at approximately 10:00 a.m. on May 13, 1993, and that the Hamilton County Honor Guard had "marched down to stand behind the families of officers who had fallen in the line of duty." He testified that the defendant and approximately seven other people marched behind the Honor Guard. The defendant, utilizing a megaphone, and the rest of the group were shouting, "Stop killer cops." After they had shouted this "three or four times," the group was arrested. Calloway stated that the group of protesters was "exactly behind" those who were attending the ceremony.
Several of the witnesses who testified were persons attending the ceremony because they were relatives of police officers who had been slain in the line of duty.
Buford Duggan, who was attending with his wife and son, and whose uncle had been killed in the line of duty, testified concerning the disturbance, which occurred behind him:
Me and my wife got there just a short time before the meeting started and I believe Mr. Freudenberg gave the welcoming address and then invocation and then the color guard came through and there was a lot of disturbance, you know, coming in from behind. We were seated there where the memorial plaque is going to be erected and it just drowned out the whole program, it had to stop.
Duggan then provided additional details about the disturbance:
I didn't know what in the world was happening. I looked around and I got a glimpse of people coming in and one fellow had a bullhorn making a lot of noise. The best I could tell it was a chant saying, "Kill the cops, kill the cops, kill the cops." That's the way it sounded to me.
Wendell Shipley, who was attending because his father had been killed in the line of duty in 1953, testified that those protesting were "right close" behind him. He said that as the group was "shouting and hollering over their bullhorn `Killer cops, killer cops,'" he "couldn't hear anything of the ceremony."
Preston Hess, attending the ceremony with his parents and a brother to honor another brother who had been killed in the line of duty in 1978, identified the defendant as the person with the megaphone and described what happened:
Mr. Freudenberg got up, started to speak and he had said two or three words, not very much at all and I don't know what his name is, the gentleman with the sunglasses picked up, came out with a megaphone and started chanting "stop killer cops," and then the rest of them were chanting along with him and it was really disruptive, it got to where you couldn't hardly hear Mr. Freudenberg, and he got so—he got kind of confused and he couldn't remember where he was at and trying to talk and it was just—it was just disruptive and, so, the police came in and then escorted them off.
According to Hess, the protesters "were still chanting as they went off."
The only witness to testify for the defense was Clifford Eberhardt, editor of a weekly newspaper in Chattanooga, who testified that he was with the group of demonstrators and that they were unaware that a memorial service was going on at the time of the protest.
In this case, we must decide whether a legislative enactment designed to protect the right of assembly of citizens unduly burdens the First Amendment rights of other citizens. The defendant argues that his conviction under Tennessee Code Annotated § 39-17-306 should be overturned because the statute is unconstitutional in that it places an unreasonable restraint on freedom of speech and is overbroad, in violation of the First Amendment of the United States Constitution.1
Tennessee Code Annotated § 39-17-306 states the following:
The defendant assails the statute as being an unconstitutional restraint on his First Amendment right of free expression. Before addressing defendant's argument that his First Amendment rights have been abridged, we examine the nature of those rights.
(1) Nature of First Amendment Rights
The First Amendment to the United States Constitution provides that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The protection of free speech has been characterized in First Amendment jurisprudence as a "fundamental" liberty. "Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom." Palko v. Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 152, 82 L.Ed. 288, 293 (...
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Dempsey v. People, No. 04SC362.
...can nonetheless be consistent with the thrust of the First Amendment," Kay, 83 Cal.Rptr. 686, 464 P.2d at 147; State v. Ervin, 40 S.W.3d 508, 515 (Tenn.Crim.App.2000) (declaring, "the right to assembly does not guarantee a silent That principle is tempered, however, by the reality that "the......
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State v. Fielden, S06A0282.
...implicate protected First Amendment freedoms. See, e.g., Dempsey v. Colorado, 117 P.3d 800(II)(A) (Colo.2005); State v. Ervin, 40 S.W.3d 508(I) (Tenn.Crim. App.2000); State v. Hardin, 498 N.W.2d 677(II) (Iowa 1993); Morehead v. Texas, 807 S.W.2d 577 (Tex.Crim.App.1991); In re Kay, 1 Cal.3d ......
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Ervin v. Hammond
...the Tennessee Court of Criminal Appeals rejected Ervin's challenge to the constitutionality of the statute at issue. State v. Ervin, 40 S.W.3d 508 (Tenn. Crim. App. 2000), appeal denied (Tenn. Feb. 12, 2001), cert. denied, 534 U.S. 842 (2001). It appears that Ervin filed a petition pursuant......