IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KM-01598-COA KIM COLLINS A/K/A KIM ROCHELLE COLLINS A/K/A KIM R. COLLINS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/28/2015 TRIAL JUDGE: HON. THOMAS J. GARDNER III COURT FROM W HICH APPEALED: MONROE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: BRIAN LEE STARLING ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN DISTRICT ATTORNEY: TRENT KELLY NATURE OF THE CASE: CRIMINAL - MISDEMEANOR TRIAL COURT DISPOSITION: CONVICTED OF DISORDERLY CONDUCT, RESISTING ARREST, AND DISTURBING THE PEACE, AND SENTENCED TO NINETY DAYS IN THE MONROE COUNTY JAIL ON EACH CHARGE, W ITH THE JAIL TERMS SUSPENDED, AND TO PAY FINES OF $200 ON EACH CHARGE; AND CONVICTED OF SPEEDING AND PUBLIC PROFANITY AND SENTENCED TO PAY FINES OF $100 AND $200 DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART – 06/27/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ

. IRVING, P.J., FOR THE COURT: ¶1. Kim Col l i n s a p peals f ive s eparate judgm ents of the Monroe C ounty Circuit Court adjudicating h er g uilty of f ive m i sdem eanor of

f enses: resisting a rrest, disorderly conduct, speeding, public prof

anity , and disturbing the peace. She subm its that the c ircuit court erredin not dism issing the charges a gainst her because o f the absence of probable c ause to arrest

her. As to the speeding charge, we disagree, b u t a s t o the other charges, we agree. Theref ore, we af

f irm the judgme nt of the circuit court o f c o nviction a n d sentence f or speeding and reverse a nd render each of the judgm ents of the circuit court of conviction and

sentences f

or resisting arrest, disorderly conduct, p ublic prof anity , a nd disturbing the peace. FACTS ¶2. On January 21, 2 013, Collins was stopped f or speeding by Mississippi State Highway Patrol Trooper Matthew Hood in Monroe County , Mississippi. According to the testim ony
at tria l , t h roughout the traf f ic stop, Trooper Hood and Collins exchanged com m ents about the stop, and Collins expressed her disagreem ent with being stopped. A t what appeared to be t he c onclusion of the s top, T rooper H ood i ssued Collins a citation f or s peeding and having

no insurance, inf

orm ed her of her court date, and told her “to slow down and be caref ul.” He then turned and began w alking to his patrol car. Trooper Hood stated that as he reached the f ront-bum per area of his patrol c ar, Collins called h im a “racist m otherf

- ---r.” However, Collins disputes this allegation and asserts that she only e xpressed her i ntent to contact Trooper Hood’s superior of f icer. 1 ¶3. Af ter the alleged r em ark by Collins while s he was d riving o f f , Trooper Hood y elled

1 T r o o p er H o o d ad m its th at C o llin s s aid to h im th a t s h e w as g o i n g to call h is su p erio r o f f icer, b u t n eith e r th at statem en t n o r th e d i sp u ted statem e n t can b e h eard o n th e au d i o o f T r o o p er H o o d ’s d ash -cam v id eo . In f act, n o n e o f th e statem e n ts th at C o l lin s m ad e w h ile in sid e o f h er car can b e h eard o n th e d ash

- cam reco rd in g . 2to her that “y ou h ad better go head.” W ith alm o st no h esitation af ter he t old h er that she “had better go head,” he began approaching the vehicle again and y elled out to Collins t o stop her vehicle and to p u t it in park. Collins com plied. Upon reaching the vehicle, he instructed her

to step out of h er vehicle, without inf orm ing her as to why s he was being ordered out. Upon her ref usal, Trooper H ood o p ened her door, rem oved her seatbelt, and phy s ically pulled her f rom her vehicle. He then attem pted t o place h andcuf

f s on her by f

orcef ully restraining her against her vehicle, but she resisted; he eventually handcuf f ed her af ter f orcing her to the ground. Af

ter being handcuf

f ed, Collins lay n ear the roadway until t he arrival of a backup trooper. Eventually , a n am bulance arrived and transported C ollins to the hospital f o r
treatm ent of what she was describing a s a b roken leg. 2 According to Trooper Hood’s testim o ny , he charged Collins w ith (1) disturbing the peace f or calling him a “racist m otherf

-- --r,” (2) disorderly c on d u ct f or Collins’s f

ailure to com

ply with his com m and to get out of her car, (3) public prof

anity f or cussing in the presence of Trooper Tucker, 3 the EMTs, and “other m otorists,” (4) resisting a rrest f or ref using to allow him to handcuf f h er, and (5) speeding f

or driving eighty

m iles per hour in a sixty -f ive-m ile-per-hour zone. Collins was f ound guilty in the Justice C ourt of M o n r o e County of all counts bef ore appealing to the Circuit Court of Monroe County , which also f ound her guilty on a ll counts. In her appeal here, she argues that the circuit court erred in not dism i ssing the charges.

2 C o llin s d id n o t su f

f er a b ro k en leg , as, acco rd in g to h er trial testim o n y , sh e su f f ered a to rn A C L , a to rn m en i scu s, an d “a lo t o f j u st to rn lig am en ts in h er k n ee.”

3 T h e reco r d d o es n o t in f

o r m u s o f T ro o p er T u ck er’s f

irst n am e. 3DISCUSSION

¶4. Collins f

i rst argues that the trial c ourt erred i n deny ing her m o tion to dism iss because Trooper Hood illegally detained her af ter the initial s top was over. She concedes tha t t h e original stop f

or speeding was l awf

ul, but according t o her, “[ o]nce T rooper Hood i ssued the citation, h is actions and s tatem e nts indicated t h a t [ she] was f ree to leave[ ,].

. . thus ending the traf f ic stop and the probable cause associated w ith it.” More s pecif i cally , she argues that because Trooper Hood had no valid basis t o stop her a second tim e—and she had the right

to resist an illegal arrest—all charges em anating f rom the second detention s hould have been dism issed. ¶5. T h e S t a t e r e s p o n d s t h a t w h ether or not the initial detention was over is of littl e i mportance. According to the State, Trooper Hood had probable cause to detain C o l l i n s a second tim e based on her subsequent actions, which constituted disturbing the peace. The State contends that, based o n the recording of the t raf f ic stop and Trooper H ood’s testim ony , he was “justif

ied, upon observing what he perceived was a breach of the peace, o r conduct calculated to provoke a breach of the peace, in detaining Collins a second tim e.” ¶6. It is c lear f

rom Trooper Hood’s testim ony t hat h e arrested Collins f or disturbing the
peace f or calling him a “raci s t m otherf ----r.” W e quote h is trial testim ony regarding the disturbing-the-peace charge, as well as the other charges that he m ade against Collins: Q. You h ave also charged her with -- M s. C o llins w ith d isturbance of the peace ; is that correct? A. Yes, m a’am

. 4Q. And that was for what ?

A. The com m e nt when I went back up to the car, t he racist m other[f----r] com m ent. Q. Okay

. And af

t er that com m ent was m ade on the video -- and y ou stated during the video, af

ter that com m e nt was m ade, t hat’s whe n y o u t o l d her to stop and get out of the car; is that correct? A. Yes, m a’am

. Q. Now, y ou also c harged h er w ith disorderly c o nduct, f ailure to com

ply ; is that correct? A. Yes, m a’am . Yes, m a’am

. Q. And can y ou tell the Court, was that f or when she wouldn’t get out of the vehicle? At what point in tim e was that? A. That was f

or her f ailing to c o m

ply with m y order to g et out of the car. Q. And also by the af f idavit ref using to put her hands behind her back? A. Yes, m a’am

. Q. Okay . The public prof anity charge, that was f

or which point in tim e? A. I t w a s g oing to be the point in tim e w hen Trooper T ucker and m y self were there, also the EMTs, along with other m otorists. Q. And do y ou recall -- and it was audible, t h e p r o f anity used prior to Trooper Tucker and the EMTs arriving on the scene. Do y ou recall what w as said af

t er t h e y arrived on the scene and were in Ms. Collins’[ s] presence? A. No, m a’am , I do not. Q. Okay . Do y ou recall that she used prof anity ? A. Yes, m a’am

. 5Q. You just don’t recall the specif ic words? A. That’s correct. Q. A n d then resisting arrest. Can y ou explain to the Court wha t y o u charged her with resisting arrest f or? A. That w as f

or phy sically try ing to k eep m e f rom handcuf

f ing her. I was telling her to p ut her hands behind her back. She was phy s ically try ing to resist it and keep m e f

rom handcuf f ing her. Q. And was that the point in tim e we could see her pulling away f rom y ou and waving her hands in the air? A. Yes, m a’am

. (Em phasis added). ¶7. It is clear to us, based on Trooper Hood’s testim ony , that t he traf f ic s top had ended bef ore Collins was arrested f or disturbing the p eace by allegedly calling Troop er Hood a “racist m otherf

----r.” T rooper Hood had given Collins the speeding ticket and had walked
away f rom her v e h i c l e . H e d i d not give any indication that the traf f ic stop had not been

com pleted. Although he testif ied that his traf

f ic stops do not end u ntil he r eturns to his car and drives of

f , when asked if he w ould have stopped Collins had she sim p ly driven away as he returned to his car, he r e p l i e d t h a t he would not have. Theref ore, as stated, the initial traf f i c stop f or s peeding had b e en com pleted, as Trooper Hood h ad not only given Collins the speeding ticket and had walked away , h e had also given her what can only be described

as parting instructions: he had told her where to pay the ticket, to h ave a nice day , to slow down, and to be caref

ul. And even af

ter Collins was leaving while allegedly calling him

a

6“racist m otherf ----r,” he even told her she had “better go head.” ¶8. Collins argues that Trooper Hood violated h er F i r s t a nd Fourteenth Am endm ent rights by stopping her a second tim e simply f o r h er spoken words. According to Collins, “[ b]ecause Trooper Hood’s basis of probable cause to arrest was f ounded on a violation of her F irst Am endm ent c onstitutional right, his probable cause dete r m i nation was void and illegal.” ¶9. The State concedes that “Co n g r e s s s h a l l ma k e n o law abridging the f reedom of speech.” Brendle v. City of Houston , 759 So. 2d 1 274, 1 278-79 (¶16) (Miss. Ct. App. 2000). However, the State argues that “the f reedom of speech is n ot absolute.” Id

. T he State next

c i t e s a n e xcerpt f

rom the trial judge’s decision: “I consider this to be a term that is , particularly in view of t oday ’s c ircum stance, f ighting w ords or com m ent. Particularly , too, when they are considered in the c ontext of which they were m ade.” The State argues that the trial court f

ound that Collins’s speech constituted f ig h t i n g w o rds and, theref ore, was not protected speech. ¶10. Despite the State’s argum ents, and regardless of whether Collins had uttered f ighting words, w e f

ind that the c ircuit court erred , and Trooper Hood’s arrest of Collins f or disturbing the peace was illegal, as she had not com m itted the of f ense of disturbing the peace when he ordered h er out of h er car f or calling h im a “racist m otherf ----r.” Taking Trooper’s Hood’s statem ent as true, as w e m ust, not only h ad Collins not com m itted the o f f en s e of disturbing the peace, she had not com m itted any o f t he other of f e nses that Trooper Hood later

7charged her with.

¶11. As w e said in Odem , “the United S tates Suprem e Court [ has ] h e l d t h a t t h e r e a re def inite a nd n arrowly lim ited classes of speech w hich m ay be constitutional l y p u nished.
T h e s e include the l ewd a nd obscene, the prof ane, the l ibelous and insulting, o r ‘f ighting’ words which . . . tend to incite an im m ediate breach of the peace.” O dem v. State , 881 So. 2d 940, 947 (¶23) (Miss. Ct. App. 2004) ( quoting Chaplinsky v. State of N.H. , 315 U.S. 568 (1942)). However, “the Suprem e C ourt h as also h eld that prof ane w o r d s alone,

unaccom panied by any evidence of violent arousal, a re not f ighting words, a n d are theref ore pro t e c t ed speech.” Id

. at 948 (¶25). The court went on to state that, “ [ u]nf o rtunately , law enf orcem ent of

f icers m ust endure verbal abuse.” Id

. at (¶27). “The f r eedom of individuals

v e rbally to oppose or c hallenge police action w ithout thereby risking arrest is one o f t h e principal characteristics by which we distinguish a f ree nation f

rom a police state.” Id. ¶12. T r o o p e r Hood testif ied that the probable cause t o arrest Collins was based on her calling him a “racist m otherf ----r.” He also testif

ied that the words s he used did not incite him to f ight and that he di d n o t consider them to be f ighting words. Collins asserts that nothing said rose to the level required f or p ro bable cause t o arrest her f or disturbing the
peace. ¶13. O u r d i s t u r b a n ce-of -the-peac e s t a t

u t e , M i s s i s s i p p i C o d e A n n o t a t e d s e c t i o n 9 7

- 3 5

- 1 5 ( 1 ) (Rev. 2014), provides: Any person who disturbs the public peace, or the peace o f others , by violent, or loud, or insulting, or prof ane, or indecent, or of

f ensive, o r b oist e r o us 8conduct or l anguage, or by i ntim idation, or seeking to intim idate any other

person or persons, o r by conduct either calculated to provoke a breach of the peace, or by conduct which m ay lead to a b reach of t he peace, or by any other act, shall be guilty

of a m isdem eanor. It is clear f

rom even a casual r e a d i n g of the above s t atute that t he statute only prohibits disturbing the public peace of the peace of others

. T he r ecord is clear that when Trooper Hood ordered Collins to stop her car and get out, only she and he were there on the side of the r oad. Theref

ore, when she s aid what Trooper Hood accused her o f s ay ing, she could not have disturbed the public peace, n or could she h ave disturbed t he p eace of others, and t he statute does not prohibit disturbing the peace of another

. ¶14. The State n otes that, based on Tro o p er Hood’s testim ony , and the recording of the

t r a f f ic stop, Collins was a rgum entative and insulting throughout the stop, asserting t h a t Trooper Hood h ad pulled her over because it was Martin Luther King Jr. Day and Trooper Hood wanted to “ harass black people.” The State f urther argues t h a t a f

t er Collins called Trooper H ood a “racist m otherf

- ---r,” Trooper Hood was justif i ed, upon observing what he perceived was a breach of the peace, or conduct calculated t o provoke a b reach of the peace, in detaining Collins a second tim e. ¶15. It is suf

f icient to say , as we already have, Trooper Hood him self did not consider the insult to be f

ighting words. T heref

ore, it c a nnot be legitim ately argued that Collins’s words to Trooper Hood were likely to cause a breach of

the peace. ¶16. W e n eed not address the other ch a rges, as they all stem f rom Collins’s lawf

ul resistence to her unlawf

ul arrest f or disturbing the peace. T heref ore, we reverse and render
9all o f the rem aining charges except s peeding. There was suf f icient e v i d e n c e t o support Collins’s conviction f

or speeding, as T rooper Hood testif ied t hat h e clocked her on his radar
gun traveling eighty m i les per hour i n a s i x t y -f ive-m ile-per-hour zone. The evidence was uncontradicted that his radar d etector had been properly and t im ely c a l i b r ated. Theref ore, we af f irm the judgm ent of

the circuit court as to the speeding charge. ¶17. T H E J U D G M E NT OF THE MONROE COUNTY C I R C U I T C O U R T O F CONVICTION O F S P EEDING AND SENTENCE TO P AY A FINE OF $100 IS AFFIRMED, AND THE SEPARATE JUDGME NTS OF CONVICTION OF DISORDERLY CONDUCT, R ESISTING ARREST, PUBLIC PROFANITY, AND DISTURBING THE PEACE ARE R EVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY. LEE, C.J., I SHEE, GREENLEE A ND WESTBROOKS, JJ., CONC U R . BARNES A N D FAIR, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE W R I T TEN OPINION. CARLTON AND WILSON, JJ., CONCUR IN RESULT ONLY WIT H O U T S EPARATE WRITTEN OPINION. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

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