State v. Ervin

40 S.W.3d 508, 2000 Tenn. Crim. App. LEXIS 267
CourtCourt of Criminal Appeals of Tennessee
DecidedMarch 16, 2000
StatusPublished
Cited by8 cases

This text of 40 S.W.3d 508 (State v. Ervin) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ervin, 40 S.W.3d 508, 2000 Tenn. Crim. App. LEXIS 267 (Tenn. Ct. App. 2000).

Opinion

OPINION

ALAN E. GLENN, Judge.

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:

I. Tennessee Code Annotated § 39-17-306 is unconstitutional in that it places an unreasonable restraint on the exercise of freedom of speech and is overbroad.
II. The evidence was insufficient as a matter of law to support the jury’s verdict.

Based upon our review, we affirm the conviction.

FACTS

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 [512]*512line 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.

The trial in this matter was held on April 3, 1994. The State’s first witness was Ralph Cothran, who was the chief of the Chattanooga Police Department and had been with the department for twenty-nine and one-half years. He testified that a site had been selected adjacent to the Justice Building in Chattanooga for a memorial for police officers who had fallen in the line of duty. A dedication and memorial service was planned for May 13, 1993, and the Chattanooga City Commission had passed a resolution allowing certain streets to be blocked off for the ceremony. Apparently, during the period from a few days before this ceremony until a few days following it, a group had protested and marched in the area. However, according to Cothran, the protests did not result in arrests other than those that occurred because of the disruption of the memorial service itself. Cothran testified that as the memorial service began, one of the demonstrators began using a “battery-powered microphone that was quite loud:”

Well, as the memorial, as the memorial began, got started, several demonstrators who were on the landing of the Justice Building marched down behind the family of fallen officers and began to chant, “Stop killer cops,” I believe or something to that nature.

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:

[513]*513I 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.

ANALYSIS

I.

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Cite This Page — Counsel Stack

Bluebook (online)
40 S.W.3d 508, 2000 Tenn. Crim. App. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ervin-tenncrimapp-2000.