The three remaining defendants who had been arrested during the “I Am Change Legacy March to the Polls” in downtown Graham on October 31, 2020 were found guilty of misdemeanor failure to disperse at a joint trial in Alamance County district court Wednesday morning.
Devante Esters Cromartie, 24, black male, of 1745 West Parkton Tobermory Road in Parkton (in Robeson County), had been charged with failure to disperse during the protest in downtown Graham that ended with pepper spray on October 31, 2020.
Samuel Pierre, 22, black male, of 202 West Walnut Street in Pink Hill (in Lenoir County) had been arrested on three misdemeanor charges during the same event: failure to disperse; resisting a public officer; and public disturbance.
Stephen Morris Walker, 37, black male, 702 East Lindsey Street, Greensboro was charged on October 31 with one count of misdemeanor failure to disperse on command.
None of the defendants had any criminal record prior to their convictions on Wednesday morning, according to information on file with the state’s Administrative Office of the Courts.
All three defendants were represented by attorney Jason Keith of Greensboro, who consented Wednesday morning to a request by Alamance County assistant district attorney Kevin Harrison to join all three cases for a single trial, since the witnesses and potential witnesses were likely to be the same.
Harrison ultimately called seven Alamance County sheriff’s deputies to testify about the circumstances surrounding the arrests. Keith called no witnesses to testify for the defense.
The witnesses for the state recounted Wednesday much of the same evidence they had testified during earlier trials for defendants who had been arrested on October 31, 2020.
Alamance County sheriff’s Major David Sykes recounted his planning and preparation to develop an “operations plan” to provide security for the historic court house after the event organizer, Rev. Gregory Drumwright of Greensboro, obtained a permit on October 20 to have exclusive use of the property.
Alamance County sheriff’s Capt. Scott Gaither, Lt. Chad Martin, and deputy Daniel Nichols each testified having observed each of the defendants on or near a portable stage that Drumwright had erected at the base of the steps on the north side of the county’s Historic Court House.
Corporal Barbara Tomey testified about the injuries she sustained – which she previously described as bruising and scrapes from her elbow to her armpit – during a scuffle that broke out when deputies attempted to seize a gas-powered generator that Drumwright had brought onto the courthouse grounds, in violation of the permit he had been granted for the event.
Deputy Pete Triolo testified that he had been instructed to give three dispersal commands, which he delivered via a battery-powered megaphone at 1:05, 1:10, and 1:15 p.m., instructing the crowd to leave the property in an east, west, north, or south direction.
Keith based his defense on his assertion that the evidence – testimony by the deputies and drone footage recorded on October 31 – had failed to show that his clients were doing anything impermissible when they were arrested.
The green beanie
Keith unsuccessfully challenged several deputies who confirmed the three defendants’ identities during their testimony Wednesday. The defense contended that identification amounted to hearsay evidence, which is generally impermissible under North Carolina’s rules of criminal procedure. For an example, Keith pointed to Lt. Martin, who testified Wednesday that Drumwright was the only person he was familiar with on October 31.
Gaither “even gave you clothing-based identification,” Harrison later countered.
A subsequent review of testimony given earlier Wednesday morning revealed that Gaither, the sheriff’s captain, had described Pierre as wearing a “greenish beanie” and standing nearby the portable generator, which had been concealed inside a cloth beach wagon, at the time of his arrest.
Other deputies testified Wednesday that they had learned the defendants’ identities during the investigation that followed the October 31 protest.
Deputy Nichols recalled Wednesday that he had personally arrested Cromartie – who, he testified, had been standing onstage and wearing a red and black buffalo plaid jacket – on October 31.
Cromartie and Walker were standing atop the stage, at the edge closest to North Main Street in the moments before their arrests, while Pierre appeared to be standing nearby the stage, based on drone footage that Harrison presented during the trial Wednesday morning.
The drone footage depicted Cromartie standing with his arms outstretched before he got down from the stage and was taken into custody as he backed away, Keith argued.
“I think it’s abundantly clear from the video what transpired with Mr. Cromartie,” Harrison countered. “Mr. Cromartie never manifested any serious indication he was going to leave. He stays in almost the same manner as he was on the stage.”
Retired visiting district court judge Lunsford Long, III of Orange County concluded that “general identification” was sufficient to proceed.
Long dismissed two of the charges – misdemeanor public disturbance and resisting a public officer – against Pierre, ruling as he had during Drumwright’s trial last month that there was no direct evidence Pierre had interfered with any officer. Nor had Pierre done anything to precipitate the riot but instead had become “engulfed” in it, Long concluded.
Keith, however, failed to persuade the visiting judge that the dispersal order had to have been given contemporaneously with the injuries to Tomey and the ensuing “riot.” Instead, the evidence failed to establish how much time elapsed between the scuffle, Tomey’s injuries, and the dispersal order, the defense attorney said. “It’s my reading of the statute that the dispersal order has to be given at the time of the riot,” Keith told Long.
First Amendment protection for failing to disperse?
Either way, the defense attorney insisted his clients were lawfully exercising protected First Amendment speech at the time of their arrests.
“The situation that the state was arguing – the riot with officer Tomey – did not occur in a timely fashion in which they gave the dispersal,” Keith asserted. “The language [of the statute] says that, at the time the dispersal order is given, there has to be a riot occurring.
The legislature used that language – those are terms of construction; they sought to make a determination. They also excluded a certain particular behavior, which would be protected speech. We would contend…based [on] the evidence that’s been submitted in this case, there is no evidence that speech was not protected First Amendment speech.”
“I think your reading of what was occurring is too narrow,” Long responded. “The riot was still occurring in the broader sense.”
Keith also failed to convince the judge that the dispersal orders included “no clear direction” for where participants needed to go to keep from being arrested. “For the layperson [who] just shows up at a protest or a voter’s march to the polls, would it be the courthouse, the stage, that general area, the street, or would the statue be considered county property?
There is no dispute that, when the dispersal order was given, these three individuals were in the general vicinity. I think the evidence shows their conduct was not improper, impermissible; and there’s been no evidence showing anything different.”
“That argument,” Long told Keith, “could be best applied to Mr. Cromartie because he did semi-disperse by backing away, but the other two clearly didn’t move at all.”
“I believe all three of these gentlemen are guilty of failing to disperse,” Long announced at the conclusion of evidence and closing arguments. He ordered all three defendants to pay a $250 fine and court costs.
State law classifies failure to disperse on command as a Class 2 misdemeanor, which carries a maximum fine of $1,000 and a maximum punishment of up to 60 days’ community service, supervised probation, or jail time.
Keith gave formal notice of his clients’ intention to appeal their convictions to superior court.
See story on outcome of first appeal to superior court from 2020 protest demonstration cases: https://alamancenews.com/first-appeal-to-superior-court-from-protest-verdicts-nets-same-result-guilty-this-time-by-a-jury/