Email trial: Judge retains issues for jury in cyberstalking case

By Patsy R. Brumfield / Daily Journal

(ROLLING UPDATES BELOW NEWS INTRODUCTION – 10:12 a.m., 10:26, 10:58, 12:02, 1:36 p.m., 3:35)

TUPELO – Two men say James “Mike” Surratt emailed them so many times about problems in his subdivision that it constituted felony, electronic harassment.

Surratt, 60, was indicted on two criminal counts last February and insists he is innocent.

This morning, more than 100 people appeared in circuit court to answer summonses for jury duty to try Surratt’s case.

Jak Smith represents Surratt, and Paul Gault is the state’s lead prosecutor.

In the indictment, a Lee County grand jury claims from April 1 until Sept. 1, 2009, Surratt “wilfully, unlawfully and feloniously” communicated electronically to Leonard Witt and Peter McCormick – who are officers in Surratt’s homeowners’ association for Heardtown Estates subdivision west of Tupelo off Mount Vernon Road.

Smith also was expected to ask Judge James L. Roberts Jr. to dismiss the charges, claiming Surratt:

• Had a right to privileged communications with the officers because he was a member of the association and emailed them with the “legitimate purpose” of enforcing the protective convenant, or rules for the subdivision, and

• Was using “protected speech” under the First Amendment to communicate with two persons “charged with overseeing the actions” of the association.

In his motion, Smith insists that cyberstalking harrassment is not defined in the Mississippi code or in any other Mississippi statute.

He also notes that in a 2010 amendment to the code, which addresses stalking, harassment is defined as repeated, annoying communication “which serves no legitimate purpose.”

“As a matter of law,” the motion states, Surratt’s “acts of sending the emails were for a legitimate purpose,” that is, to complain about repeated violations of the protective rules governing activity at Heardtown Estates.

• • •

(My question: With this trial centering on emails about problems at Heardtown Estates, will we see developer Mitchell Scruggs on the stand? As you recall, Scruggs is in the middle of this major dust-up about operations at North Lee County Water Association. If so, we may hear questions to him about water quality in the subdivision. Or will he take the Fifth Amendment against self-incrimination? Watch NEMS360.com and the Daily Journal for what happens.)

9:18 A.M. – Judge Roberts enters the courtroom. Today’s main business is to pick a jury. Gault says the meat of the trial will come later this week.

Roberts tells the jury pool the process to “qualify” them may take 45 minutes to an hour. He tells them about phases of a trial, the first of which is the selection of a jury. This trial will have a jury of 12 and two alternates.

As Roberts asks questions to winnow out the people who aren’t qualified, one man stood up to say he was convicted in Wisconsin of “party to a strong-arm robbery.” He was excused from service and left the courtroom.

By 10:10, about a dozen people have been excused from jury service for various accepted reasons. By 10:12, Clerk Joyce Loftin begins to read the names of whoever is left, and they begin to take their seats in the order in which she calls their names.

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10: 20 – About 40 people are in their seats, for the judge and attorneys to begin asking questions, to determine whom they consider to be their best jurors for this case. Each side, plus the judge, has the ability to dismiss some jurors. They’re looking for 14.

Roberts swears them in again. Warns them not to discuss anything about any case or other matter. Gault asks to approach the bench. Smith joins him. Gault sounds like he’s trying to estimate how long the jury selection process will take. Last Friday, attorneys did not expect to be here today, rather to begin the process on Tuesday. But for some reason, here they are. Sounds like they may be willing to come back after lunch, if that’s what it takes to get a jury selected.

The judge says one matter must be considered in his chambers, then they’ll be ready to select the jury. If it takes longer, he said he’ll bring them back to explain what’s going on. 20-minute recess taken, 10:26 a.m.

• • •

10:53 – Judge, attorneys, potential jurors return to the courtroom.

Roberts says lawyers conferring about some issues. Will take longer than 20 minutes to resolve. Can’t tell them about case, just yet. He says some issues that must be resolved, but not speedily. Won’t keep them captive. To tell them they may leave and return at 1:30 p.m.

Hopefully, by then, Roberts says, he can tell them what next step is.

• • •

12:02 – Attorneys return to courtroom. Gault opens investigator’s file for Smith.

Court reporter leaves. That means it’s over until 1:30.

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1:25 P.M. – Judge Roberts, attorneys return. Jury pool invited back into courtroom.

1:28 – Everybody’s back in place, except one. Roberts says thanks for being prompt, then realizes he’s short one juror. Bailiffs go looking for him/her.

1:30 – Roberts says he’s going to go ahead. Said has been a bump or two in this proceeding. Not attributing any fault to it. (Female juror returns.) With just this one case, have to be sure we’re ready. Matters court and lawyers are dealing with so not ready to proceed with. I’m embarrassed about that. Hate for you to come up here and we’re not certain about starting time. That sometimes occurs.

Believe, Roberts says, will take longer than time this afternoon. But no point in your having to sit around all afternoon. This case can be tried but I want to be sure it’s ready before we launch into it. Believe we will resolve the matters during the afternoon. Going to release you – After 6 p.m., should something happen for you not to be here Tuesday, check back with circuit court call-in service, to tell you whether to report or not tomorrow morning. Extremely important to call it.

Believe you will be told to report but I could be mistaken. May be another bump or two I don’t know about. If you report, be here by 9 a.m., seated. Do not discuss anything about this.

1:35 – Judge asks Smith if he reviewed information. Smith says they produced everything we need to see.

Roberts, did I just make a mistake here? (attorneys didn’t get his question.) Let’s go back to chamber for a few minutes. 1:36 p.m.

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(TO COMMENTERS: No evidence has yet been presented to show any of the email language, but it is possible that none contains any threats – like, I’m going to beat you up or burn your house. When I see or hear testimony about emails, I’ll pass them along. It’s also possible that, if Mr. Surratt is not convicted, a wide variety of individuals may need their own attorneys to face legal consequences. BTW, I believe Mitchell Scruggs was in a witness room this morning, available to testify if called. Scruggs is a co-developer of Heardtown Estates. Stay tuned.)

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1:25 P.M. – Judge Roberts, attorneys return. Jury pool invited back into courtroom.

1:28 – Everybody’s back in place, except one. Roberts says thanks for being prompt, then realizes he’s short one juror. Bailiffs go looking for him/her.

1:30 – Roberts says he’s going to go ahead. Said has been a bump or two in this proceeding. Not attributing any fault to it. (Female juror returns.) With just this one case, have to be sure we’re ready. Matters court and lawyers are dealing with so not ready to proceed with. I’m embarrassed about that. Hate for you to come up here and we’re not certain about starting time. That sometimes occurs.

Believe, Roberts says, will take longer than time this afternoon. But no point in your having to sit around all afternoon. This case can be tried but I want to be sure it’s ready before we launch into it. Believe we will resolve the matters during the afternoon. Going to release you – After 6 p.m., should something happen for you not to be here Tuesday, check back with circuit court call-in service, to tell you whether to report or not tomorrow morning. Extremely important to call it.

Believe you will be told to report but I could be mistaken. May be another bump or two I don’t know about. If you report, be here by 9 a.m., seated. Do not discuss anything about this.

1:35 – Judge asks Smith if he reviewed information. Smith says they produced everything we need to see.

Roberts, did I just make a mistake here? (attorneys didn’t get his question.) Let’s go back to chamber for a few minutes. 1:36 p.m.

• • •

2:07 – Judge, attorneys return.

Roberts, State v. James “Mike” Surratt. Case has been set for trial for some time. Jury qualified and voir dire has not yet begun. Pending motions, court and counsel spends time. Motions for documents, in limine and to dismiss with authorities – by defendant. My understanding that motion for documents has been resolved. (Correct, lawyers say.) Others remain.

Considerable discussion about these matters in chambers. Matters have not been resolved. Mr. Smith, you are the movant, which do you want first?

JAK SMITH; Motion to dismiss logically the first.

As court knows, I represent Michael Surratt, charged with cyberstalking. I told court that I normally am in court nearly every day of week – mostly about civil issues. Not often get to argue a constitutional question. THis is a free speech case and only a free speech case. This course knows I filed motion to quash. ARgued it in chambers. Court says get ready for court. I argued that the indictment, I thought, was too broad to say as stATUTE says he sent repeated emails to harass the people. Too vague and indefinite a charge of a crime.

Asked court to reconsider that indictment too vague. Something to my attention – Section 97-3-107 is stalking statute in Mississippi – here today on 97-45-15 of cyberstalking. In 97-3-107, MS Legislature at one time included crime of harassment. Defined it in 2010 – Legislature repealed that part of statute and rewrote it and left of harassment. I think reason why, because I believe Legislature saw it was a little vague. Dont think any person from statute as exists against client could define harassment. State pursued it.

Indictment is constitutionally too vague, to give anybody an idea of what kind of crime they’re charged with. Why Legislature wrote it out, and limited it to threats and other things. That’s why. What state is doing in this case, is charging my client only with stalking. Says email or electric communication repeatedly to harass.

Let me get on with motion to dismiss, renew motion to quash. Term harass does not contain sufficient information, even today, … produced a bunch of emails and other documents. 461 pages. Guess my client is suppose to figure out which apply. Constitutionally vague. Can’t figure out what “harass” means in MS Code and not do it, escape indictment. Absurd to indict, without definition.

Could mean one thing to one, something to someone else. Threaten, we know what that means. Courts have defined that. Not defined, in MS. Only good definition is in section but not one my client was indicted under. Constitutionally impermissible type language. If murder, have to put facts there.

Now, court recognized in chambers that under MS Law there is no motion for summary judgment in criminal law. Agree with that, in principle. Think indictment is defective. Assuming it isn’t on its face … don’t think he’s been given adequate notice of what he’s done. Anyway, normally court is without authority that can’t just dismiss it, except in area of the First Amendment. Submitted a brief to the court, not filed, just submitted.

(JUDGE – This is original? Yes, Smith says.)

SMITH – Motion to dismiss on purely First Amendment basis. Surratt is a homeowner in Heardtown Estates subdivision in Lee County. It’s under which he has restrictive convenants. States his ownership of property is subject to the covenants for whole subdivision. Important for free speech because Heardtown rules are contract, you are required there to the terms of your deed to be under those restrictions. You’ve got to follow them. My client has an obligation to follow and everyone else does too. Enforcement clause, everyone must follow to the letter. If you go out to a really nice subdivision, you can see how these covenants are followed, to make sure when you spend 1/3-of a million $$, the value is preserved. You know you can sell your house one day, no junk, trash, machinery in the yards, etc.

If it’s in the covenants, you are suppose to follow that. What if you don’t? Says right here, Page 11, in event of actual or threatened violation or amendment, developers and property owners shall have right to proceed at law to compel compliance to prevent violations, to sue or to take any and all such courses of action or seek such legal remedy deemed appropriate.

My client had the right under the contract to take any and all courses of action to make sure covenants are enforced. He undertook to email president of board, Mitchell Scruggs who owns development and homeowners association, (He owns that subdivision, with Pete Armstrong and his heirs. Mitchell Scruggs and board have a duty to make sure followed.) My client talked to Mitchell Scruggs and association before he bought a lot, assured they would follow rules. Bought lot on their promise to correct these defects.

He bought lot, moved inJanuary 2009. Three or four months later, realized they were not going to do these things. So he started emailing prez of homeowners Assn., Mitchell Scruggs – imploring him, begging him and finally threatening to file a lawsuit if he did not correct these defects. Every one dealt with my client’s constitutionally protected Free Speech to get these people to make the corrections. Witt, his neighbor, would say he isn’t on the homeowners board. When he signed document with police, he said he was.

Witt says Surratt was making threats about things going on in neighborhood. Says he was on the homeowners board.

My client didn’t say general things, he sent specific requests, listed 1-15 – propane tanks not covered, wood piles, etc. All he sent were his legitimate attempt to get them to comply with covenants. When he sent to McCormick, I don’t know who else he could ahve sent it to. Begged, threatened with lawsuit. No physical violence threats. State is using harassment, not threats. Covenants say he can file a lawsuit or take any action you deem necessary and appropriate. State asks why not file lawsuit? Well, he could have but he’d rather not. People can file lawsuits but most folks, reasonable people, don’t think ,,,, it would grind our society down. My client was trying to do what covenants allowed and was reasonable, so he sent emails.

Normally, state of MS would be right and hear case with no defect in indictment, but not in a First Amendment case. Dennis v. U.S. – Supreme Court case. State says, let’s just go ahead and try this case across several days, and then you can dismiss if you think right. But Dennis case – says, this section of 97-45-15 cyberstalking, does not spply to any peaceable nonviolent or nonthreatning activity, intended to express political views or provide lawsuit information to others. You don’t have to go through all these emails. Pick out any of them. Look at them. Your honor, I think state is locked into this, bound to look at emails. So-called crime is emails to McCormick and Witt. One conclusion, that my client was sending emails for a legitimate purpose, to provide lawful information about covenant violations. That’s what he did. Constantly, trying everything he could think of to get them to comply with code.

Witt and McCormick had duty as board members to make sure people comply. Witt never replied, McCormick replied. My client told him, one time, not to reply any more. McCormick said same but my client said who else do I complain to? Also to Scruggs. Does he threatened to beat them up? No, he sent about 44 emails in 5 months to Witt, averaged 2.2 emails a week. To McCormick, board prez, 3.5 emails a week. Sheriff told him, reason arresting him, was NOT about what you said, it was for the number of them. That’s scary. That is scary, arresting people for certain number that’ snot defined in statute, that’s dangerous to free speech.

This court, under Dennis case. Oh… in statute – this section shall not be construed to impair any constitutionally protected activity, including free speech or protest. By U.S. and MS constitutions. MS – right to free speech shall be held sacred.

Let’s look at Dennis case. U.S. Supreme Court says this is the exception to rule that judge can’t just dismiss a criminal case. Guilt is established by facts. Proof depends upon a judicial decision, applied to circumstances of the cases. Court also says, if statute may be constitionally applied. Must examine statute to particular situation, to see if constitution prohibits conviction. Properly, for the judge to decide.

In Baker case, court says this: dealing with email. Held that statements in emails did not meet First Amendment true-threat requirement. But important part, if prosecution of case encroaches on protected speech is appropriately decided by court as a threshold matter. Cites Dennis, Supreme Court held that when facts are found that estalish violation ot stattute, protection is a matter of law requiring a judicial determination. Nothing that says you have to let this thing go to a jury. YOu are a wall of protection of the First Amendment.

Cases set out the law. State may not like it or agree. Supreme Court is final arbitor. I read it that in First Amendment case, precious to rights of the people, that you as the guardian, you’re the gatekeeper. You can decided in a case, to let in experts. But also the arbitor of whether this is constituionally protected speech. I submit it’s OK to send emails, so long as you don’t threatend anybody. This man also have protection of the covenant.

If he just lived across the road and calling them names. That might be something else. But where my client was in the subdivision, he was charged with keeping his stuff up. He took everystep he could to express his dissatisfaction that homeowners assn wasn’t following the rules and Mr. Witt specifically and Mr. McCormick, too. Can show court photos that they were violating. Court can look at these emails. I provided them to the court. All of them. Court can look at them. They contain nothing but my client’s efforts to try to get these people to comply. Court has a duty as gatekeeper, to determine if emails are a violation of the First Amendment.

2:45 – Gault – motion to quash and dismiss. State rests on its previous oral argument and response to motion, stating that there’s not an appropriate or possibility of summary judgment without hearing evidence.

More recent motion to dismiss – cases cited. State does not disagree that it is a matter of law for the court to deterine, if the emails at issue if they are protected by the First Amendment. But, to make that determination, state thinks court must hear the evidence. This is a course of conduct crime. BAsedon a course of conduct, in this instance a harassing course of conduct. State feesls that after evidence heard, the court will NOT FEEL THAT ANYTHING DEFENDANT HAS DONE IS PROTECTED BY FIRST AMENDMENT.

If court feels that way, after state rests is proper time to make that determination.

Convenants simply put, you can’t contract to break the law. Can’t proceed with an activity outside the criminal code. Evidence will meet what the Legislature wrote. Smith is correct. No definintion of harassment in that stattute. Neverhtheless, Legislature makes clea it’s a violation of that law. Makes it harder on courts. Legisalture makes it a violaion of the law. Covenants, doesn’t gove defendant the right to break the criminal code in this state. It’s a matter of law for the court to determine. Msut hear the proof. Further, crime relates to a course of conduct in a relationship, the court must hear all the evidence. Analogy – that one person may send another flowers isn’t against the law. We know that’s legal. But put ina different context, if those two people involved in fights and then sends flowers, that can meet the traditional stalking statute. Crime is a matter of context. A continuing course of conduct. State of opinoin that once it puts on case, that will be shown.

SMITH – Think what a chilling effect this has on people. Why Supreme Court gave a judge the right as a threshold – says to look at this to start. Chilling effect. Look at their circular logic. Don’t define it. They want to be able to stifle and subvert the First Amendment to their liking. If I’ve got a pothole and send an email to Mayor to fix it. Five months later I’ve sent 44 emails to fix. He’s got an obligation to fix it. You’re giving the state of MS to arrest and invade my home with a search warrant, because I “harrasssed” somebody, put me in jail, shackle me and carry me to the justice court and put up a $25K bond. All those things happened to my client because he was exercising his constitional right.

Danger, in my example, I send all these emails. What about 44, is that a crime? Maybe I’ll just send 43. Sending emails to street manager. Basically, this is what my client did. (Surratt’s face is red, his eyes are closed). You can read the emails, they’re in the file. I submit that if you read them, you’ll see a citizen of this community trying to follow the law, and instead of giving state of MS, through its judicial arm, through DA’s Office and have somebody come in and complain – to say I want him indicted as a felon. My client’s never been arrested in his adult life. Got a speeding ticket in college. You shackle him and parade him in front of the TV cameras.

GAULT – Object, DA’s Office has nothing to do wiht htis.

SMITH – My point, the danger of this statute and why YOU need to exercise your threshold right given by Constitution. To look at the emails and determine, like stattue said, were they peaceable? Were they non-violent? Were they non-threatening? State admits that. Intended to provide information? Darn right they were.

GAULT – Analogy to mayor’s office (Judge – apples to oranges.) Eveidence will show taht his course of conduct was absolutely aimed at harassment. Aimed to make people feel uncomfortable, on egg shells, to intimidate at workplace. Don’t know how court can make a decision without hearing entireity of evidence. Legislature wrote this law. Beyond that, state will prove harassing behavior, beyond violation of convenants.

SMITH – Mentions course of conduct. 97-3-107, defined course of conduct. State trying to sweep in all kinds of “course of conduct.” STate defines that … says, pattern of conduct of acts evidencing a contuinuity of purpose … to cause a reasonable person to fear for his safety, for others, fear damage and destruction of his property. This ain’t so.

Free speech argument. The court stripped out harassment. Now, state sits there. Reasons for First Amendment – couldn’t criticize the govt. in pre-Revolution days. Passed First Amendment to protect protests. Not in Mississippi!

JUDGE – This is a little off. Said Mitchell Scruggs owns homeowners subdivision? (Smith, yes) If I buy property there, is association only the owners? What does SCruggs own?

SMITH – (leafing through notebook)

JUDGE – I’m just curious, side issue.

SMITH – Jan. 2012 – developers heirs wil turn it over to association. DEvelopers are members of board and the owners of the association, not the lots. Voting right on association.

JUDGE – Motion to quash. Conferred a number of times. We may not agree but law says no summary judgment in criminal law. Understand nature of it, in motion to dismiss. Court will overrulg motion to quash. With respect to motion to dismiss, filed today by defendant, court understands that Smith is excellent lawyer, skilled advocate. Gault does same thing as assistant D.A. Must confess, as I have. Tempted to grant motion to dismss. I’m a strong believer int he First Amendment. Value right of free speech. Understand the Dennis case.

Dennis – judge call, not a jury call. I understand. But believe better part of caution, for court to err on side of hearing what state has to offer. I can’t say I’ve heard everything the state has to offer. I may have seen it in those emails. Gault insists that once state proof is offered, the courrt will have a better or a different attitude of the charge in the indictment. I can’t say, I haven’t seen or heard what will offer. I do not disagree, I don’t believe, with anything Smith had to say, in terms of arguments to dismiss. Defendant has right to free speech, bring these matters to homeowners assn and leaders in everylegal way. I don’t question that.

I still don’t officially know what state’s proof will be until offered in valid proceeding. We haven’t had it, with jury present. Smith strongly disagrees. But court is not in a position to decide until it hears what state has to offer. I’m not going to overrule the motion to dismiss, I will carry it with proof. Will rule on it when necessary or raised.

now, motion in limine.

SMITH – Five areas to restrict state on, first is motion important.

GAULT – State will not use “threaten” and instruct witnesses likewise.

SMITH – Resolves that.

Proceed purely on the harassment issue.

Next, a letter my client sent to Walmart in Bentonville, Ark., sent by post office. Did not name Witt, specifically, saying he is rogue not following covenants of Heardtown Estates. Gault will say it’s part of course of conduct, but statute defines it. There’s no “course of conduct” language … asking court to consider … in statute. It says purely and simply. Email to another. I do not see relevance in any way to his letter, that didn’t send to Witt. He can say course of conduct. But fact, he’s been charged with harassment by electronic communications. Are we going to let him letters he wrote to others? Contend letter should be excluded. Letters are not electronic communications. Shouldn’t be allowed in front of jury.

Also, in same vein, on day arrested my client. Sheriff’s Dept came in with search warrant. Limited to electronic communications. Man took photos (on a CD) and he went through house, took all kinds of photos. Binoculars. Computer, no problem with that. But to go all through his house, in his attic. Trying to impugne the character of my client, drag him through the mud. claim he’s some kind of pervert because he had binoculars in his house. I have binoculars in my car. I like to look at squirrels, like the Surratts. Just another great example of the Gestapo in Hitler’s day….

GAULT – I OBJECT TO THIS!!!

JUDGE – I don’t want ot spend 2-3 days with y’all arguing back and forth. Gault, I understand we’re not in Nazi Germany. You ahve right to object.

SMITH – But trying to drag him through the mud. Again, you could go into a lot of people’s house…

JUDGE – Smith, They’ve got to show relevance. (Smith, they’re not relevance. But court should exclude it on the front end.)

SMITH – I didn’t mean they are some kind of Gestapo. But it’s the kind of things that, again, bring our citizen under some kind of scrutiny, parade like something’s wrong. PHotos inside house. Don’t have anything to do with communicating electronically. Computer is relevant. Search warrant, proscribes clear. Looking for computer, emails etc. Nothing to do with binoculars or rest of house. Files there, my client kept. Think they took some files.

Other than computer, but of house and binoculars. Obviously, trying to say he’s some kind of guy who watches his neighbors.

Next thing, he sent emial to McCormick and others in neighborhood: If you want to see pictures of violations of covenants, to click on FAcebook link. Here they go, say that is part of an attempt to harass them. Facebook, my client did not send anything on Facebook but a link. They had to voluntarily WANT to see and click. That should be excluded. Just emails that went to Witt and McCormick. Would have to hang on those emails, not allow state to drag in FAcebook.

Last thing, in provisions of Heardtown, all lots and house should be for single family residential purposes, exclusively. Not garage apartments, multi-family residences. My client had a bad experience in Memphis because subdivision didn’t follow covenants and allowed multi-family renters. He lost a lot of money. He comes down here to supposedly nice development, limited to single-families. My client observed on numerous occasions, people coming into neighborhood to multi-family occupy. He commented that he did not want his neighborhood to look like Beverly Hillbillies and Sandford and Son. Looks junkie. That’s why. But state will try to enflame the jury and say that’s racial. About statements about North Green Street, may not be a real nice place. Going to use that to say he’s a racist. I contend he did not. They should be limited to whether this is harassment of two white man. Limited from arguing or questioning him about racial comments. He didn’t use bad words, directing comments that these family house were being rented by people who weren’t the kind of wanted in there. State to say it’s racial.

GAULT – Walmart letter – Does not name Witt but it clearly describes him. Sent anonymously to Walmart, Witt’s employer. Not sent electronically. Proof Witt had to deal with it. Walmart contacted him. Greater issue is it goes to course of conduct that defendant was perpetrating – to make everybody miserable. Also clearly admissible under 404(b) – (prior bad acts) as intent. Letter sent to a neighbor’s employer – to harass everybody until things were dealt with as he wanted them.

No. 3 – Pictures of binoculars. Court says it must be relevant. I can say the state will show this is again relevant under course and 404(b) to intent – testimony will show tht defenadnt intently watching his next door neighbors, on their property doing all matter of things. He saw his neighbor’s son urinating outside. He claims he was visually attacked by him. Think this is releavant. He was spying on his neighbors, to make them uncomfortable.

No. 4 – Facebook, this is relevant. Like Walmart letter. How to deal with people who don’t act as he would wish. Done under someone else’s name, when it’s him. It’s 404(b) intent. Lets neighbors know what he was planning. State feels that it’s admissible.

Finally, Mr. Smith talks about state will insinuate some emails are racist. Certainly, state’s tagged here to prove harassment. I don’t know any other way to describe two emails, except they are racist. Speak for themselves. Certainly it’s unwelcome to most people. For example, Surratt states in two separate emails that Heardtown would be like Joyner, Green or Lawndale and writes in dialect. Second email, he refers to renters, saying maybe the NAACP would be good. Not state’s case that this is about race. I can say what some people will infer. Perception is relevant.

SMITH – Exactly why I don’t want it in there. It’s free speech. He can say what he wants in emails. Was it protected speech. It is. He’s going to try to get the jury enflamed that client is a racist. Think it’s not proper, when Witt and McCormick are not of a different race.

GAULT – I don’t completely know how to answer, all emails together. CAse is not about race. I don’t know what will be said about them. REceivers would say they contain racial overtones. They’re written. Obvious inferences are going to come.

SMITH – I’M NOT trying to keep emails out. Just saying the state should not be allowed in a criminal case to interject by argument or by testimony, is it racial? Taht is irrelevant. It’s what he perceived about these violations and whether they were viewed as harassment to him. Was it harassment? Age-old attempt by state (apologize to Gault and Sheriff’s Office), for dangerousness of this kind of laws that are so wide open.

On FAcebook thing, voluntary or not. My client did not send it to them. You can look at it if you want to. Ridiculous. He’s sending a link that I chose to look at.

GAULT – If I may, state isn’t saying link is harassment. State says that knowing of FAcebook page, runs down neighborhood, make people miserable, encourages contacting their employers – it goes to intent as to what he was trying to do. Relevant evidence for context.

SMITH – Gault says purpose was to make them miserable. His purpose is in those emails, trying to make them comply. My client absolutely telling them the truth, acting within the bounds of this. These other matters are not relevant. Said spying on neighbors – he is not charged with that.

3:32 – Judge: Motion in limine

No. 1 resolved by agreement.

Remaining matters, 2-5: No. 2 letter to Walmart, No. 3 search warrant matters/photos, No. 4 Facebook issue

Realize defendant does not agree to theory of course of conduct. Court believes erring on side of caution that course of conduct has a role in this prosecution. Also realizes court must be gatekeeper on what comes in or not. Must be relevant. State is tasked with proving relevance. Court is inclined to say today that it will admit Walmart letter and Facebook. Smith, on those, you certainly can object into record. Emails say what they say. If they come in, they are likely, once they are in, they are in.

Summation – No. 1 resolved. No.2 and 4 likely admissible. No. 3 may be . No. 5 may be. All must be relevant. Defense has right to object, as always.

Anything further? Jury to be here at 9 a.m. Best estimate on pick by noon? (Smith and Gault – yes) Well aware of you lawyers. Tendency to be detailed. Will be spending time here this week. However long it takes, it will take.

After pick, will go into opening statements. Interesting, one of first in this area to be tried? (Gault – yes, fairly new statute). Appreciate your good work. We’ll do the best we can. More law may be made, expanded or reduced.

Court in recess 3:37 p.m.

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